Infrastructure Planning Blog

Today’s entry reports on the refusal of development consent for Botley West, a Scottish wind decision, and an unsuccessful judicial review of a Development Consent Order on compulsory acquisition grounds. 

Gone West

The Secretary of State refused development consent for the Botley West Solar Project. That is the first refusal for a solar project, and the first refusal under this Government. Whew. The stonking 118-page justification for that refusal is worth reading in full. Before delving into the detail, it's worth taking a step back and noting two points. First, this is not normal, and the rationale for the refusal is long and made up of the following unique sticking points:

• Substantial harm to the Green Belt was a primary concern, with the development failing to demonstrate very special circumstances sufficient to justify that harm.
• Less than substantial harm to Blenheim Palace World Heritage Site and other heritage assets was identified and not adequately mitigated.
• Unresolved aviation safety risks to London Oxford Airport were a material concern.
• Landscape and visual impact were considered significant and insufficiently addressed.
• Impacts on best and most versatile agricultural land were not adequately justified or mitigated.

 Second, it is clear from the decision letter that there is frustration at the adequacy of the information. The Secretary of State, presumably with What’s Up? by 4 Non Blondes playing in the background, is clear that "another issue which has been a feature throughout both the Examination and decision making stage is the quality of information provided by the Applicant."

The Secretary of State repeats this fundamental point on numerous occasions, highlighting "many instances where inaccurate figures, incomplete plans and information not corresponding across documents [which] have hindered the Secretary of State’s ability to understand the exact extent of the Proposed Development." This is not the only reference. The Secretary of State notes "inconsistencies in the figures and document references throughout the updated assessment" (paragraph 4.189), "inaccuracies, inconsistencies and assumptions which are not clearly explained" (paragraph 4.295), as well as "creating an opaque and potentially inaccurate assessment of the reality of the likely landscape effects" (paragraph 4.234). Cripes.

Perhaps the one part to take note of is that the Secretary of State, referring to the statutory guidance, states there is a "need for most issues to be resolved during Examination and it is the Secretary of State’s firm view based on the evidence that this has not been the case for this Application." So far as the start of the sentence is concerned, it's worth noting that the statutory guidance is exceptionally clear that "not all issues will be capable of agreement between parties by the end of the examination, and [...] achieving consensus between parties is not the main purpose of examination."

It is important to stick to that fundamental tenet. To avoid the risk of unreasonable positions reigning sovereign, it is the statutory guidance that parties should pay attention to. It is important to note the Secretary of State is not saying that matters need to be agreed, but resolved. Resolution does not mean holding hands and singing kumbaya, it means there is sufficient information to make a determination on both agreements and disagreements.

Turning to the issues themselves, this decision is going to be digested for a long time, but here are the points I took away.

First, the Secretary of State spends a lot of time explaining how the promoter did not appear to apply the mitigation hierarchy. Why is that relevant? Because it forms the basis for the Secretary of State concluding that the project did not benefit from the "Critical National Priority" presumption. If that presumption had applied, the Secretary of State would have had a strong set of countervailing presumptions, and potentially have been able to grant consent notwithstanding any residual, adverse effects.

Second, on site selection, whilst there is no general requirement to consider alternatives as per paragraph 4.3.9 of NPS EN-1, the Secretary of State concluded that the promoter could have done more during the preliminary stages of the Proposed Development to avoid certain locational constraints and to provide further information on the alternatives considered.  The Secretary of State further concluded that "the information provided on alternatives is not proportionate to the scale of the Proposed Development and is therefore inconsistent with paragraph 4.3.10 of NPS EN-1." It's relevant, in this context, to note that the promoter had suggested a reduction in the developments scale post-acceptance - a strategy that gives flashbacks to the refusal of Navitus Bay, and should be contrasted with West Burton.

Perhaps the most important point in site selection was that the Secretary of State was worried that "commercial viability may have been the principal driver of the site selection, with environmental constraints shaping the boundaries of the Proposed Development rather than the strategic choice of site." For those who are fans of site selection, that conclusion should give you pangs of the judgment in National Wind Power Ltd v Secretary of State for the Environment, Transport and the Regions, 1999 WL 1111808.

Third, the Secretary of State concluded that "the Proposed Development would cause substantial harm to the openness of the Green Belt." There is some consideration of the (updated) NPPF at paragraph 4.123 which provides that electricity network infrastructure is not ‘inappropriate development’, provided the impact on the openness of the Green Belt is minimised. For good measure, the Secretary of State confirms that there is no saving grace in this case "because of the identified harm of the Proposed Development on the openness of the Green Belt and significant conflict with the Green Belt purposes". Wallop.

The Secretary of State, on that basis, decided to afford additional negative weight which had not been ascribed by the Examining Authority. This conclusion is linked to the failure to apply the mitigation hierarchy, and it's worth noting that if the mitigation hierarchy had been applied, EN-1 states that the starting point would have been that very special circumstances existed justifying development.

Fourth, a considerable amount of the decision letter relates to impacts on the Blenheim Palace World Heritage Site. To cut a long story short, the Secretary of State did not find substantial heritage harm. The conclusion was that the harm was less than substantial, but "less than substantial" does not mean "not terribly important". EN-1 required great weight to be given to the conservation of designated assets.

There is a useful methodological warning here too. The Applicant's heritage work was criticised for focusing too narrowly on visual impacts and intervisibility. The Secretary of State agreed that Blenheim's significance also comes from its wider historic landscape and cultural associations.

Fifth, another recurring theme is the amount of work proposed to be left until after consent, particularly in circumstances where the Secretary of State was unpersuaded that a reasonable worst-case scenario had been assessed. This, again, was related to the Secretary of State's concern about the mitigation hierarchy, taking umbrage at the reliance on "mitigation through post-consent processes to address impacts rather than seeking in the first instance to avoid or minimise those impacts through the layout and design of the Proposed Development." Kerplunk.

We return to the grid connection considerations below, but finally it's worth considering the impacts on London Oxford Airport. This section of the decision letter is stark. There remained disputes around glint and glare, bird strike and thermal turbulence. In particular, there was no signed agreement securing bird-strike mitigation. On thermal turbulence, the airport operator had been unable to find suitable expertise independently to peer review the modelling, leaving the Secretary of State unable to reach a clear view. The unresolved aviation effects posed, according to the Secretary of State, "a real, credible and significant risk to public safety".

Raeshaw Re-Revisited

We have commented on the Raeshaw Farms judgment, and how different decision-makers are wrestling with it. For context, that judgment concerned whether an application for a generation asset, which did not include the grid connection assets, was flawed. In that case, the decision-maker didn't explain whether the generation asset and grid were a single project for environmental assessment purposes, and that conclusion was flawed. We commented on it here, and then here.

We now have a decision - straight out of Scotland - granting consent for the An Càrr Dubh Wind Farm, which confirms the position. That is a section 36 application, but it's worth noting that the environmental assessment did "not consider the potential environmental effects as a result of the offsite connection into the grid". Did everyone run away screaming and crying? No. The Scottish Ministers decided that, whilst the generation asset and grid "constitutes a single project", "the details of the additional development required to connect the proposed Development to the grid are currently unknown."

That decision will come as no surprise to those who know the case of London Borough of Sutton v Khan well and indeed reflects the position in England where EN-1 sets out in section 4.11 that transmission and distribution assets can be disaggregated.

Whilst the Scottish Ministers granted consent, they imposed a Grampian condition which they considered is "necessary to ensure that no development commences until details of the grid connection have been approved." It is not clear from the decision letter whether there is a necessary connection, but in the next breath the Scottish Ministers state that they are satisfied "that the likely significant effects of the whole project, including in-combination effects of the connection to the grid with the proposed Development, will be assessed and taken into account before any part of the project proceeds."

It's at that juncture that we return to Botley West. Notwithstanding the refusal, the Secretary of State comments on uncertainty and the application of section 4.11 of EN-1. The Secretary of State is clear that "uncertainty about the date and location of the substation and associated connection works, does not, of itself, demonstrate that a grid connection cannot be delivered."

The Secretary of State makes clear that even if they had granted consent, they would not have imposed a Grampian condition requiring the grid to be approved. We therefore have a potentially different practice emerging between Scotland and England, but both are managing to confirm that full, quantitative assessments are not required in light of grid uncertainty. Instead, what is required is what is proportionate. 

In this case, there were two options: either a fallback position within the Order limits or NGET’s preferred location outside of the Order limits. Neither was assessed, which the Secretary of State said "would be expected" (paragraph 4.290). Where information or options are genuinely not available, then as the An Càrr Dubh Wind Farm confirms, assessment may not be proportionate.

This blog is already very long, and the full judgment is not yet available, but one point to note is that in the failed judicial review of the Springwell DCO, one ground of challenge related to the Secretary of State's decision not to impose a Grampian condition relating to electricity network infrastructure. The judge - confirming the true position in Raeshaw that multi-stage consenting is not suddenly invalidated - is clear that there is a real risk of paralysis if each part of the system is waiting for the other before it proceeds. Frequently, one will have to go before the other. The judge also confirms that all that is required by way of assessment is what is proportionate.

Failed JR #2

Speaking of failed judicial reviews, the High Court has also dismissed a legal challenge to the Cory Decarbonisation Project Order 2025.

The claimant owned an industrial site occupied by Munster Joinery, which the promoter wanted for its carbon capture facility at Belvedere. The challenger's essential point was: you don't actually need our land. Mr Justice Mould was not persuaded. The statutory question under section 122(2) of the Planning Act 2008 was whether the land was required for the authorised development, not whether someone with enough graph paper could devise another technically feasible layout.

There is also a helpful procedural point for DCO nerds. The claimant argued that the examination had been unfair because the ExA refused a further compulsory acquisition hearing late in the examination and did not allow cross-examination. Nope. The Planning Act examination is inquisitorial, not a mini-trial, and an affected landowner is entitled to a proper opportunity to address the substance of the case for taking its land, rather than an entitlement to every particular forensic tool it might prefer.

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