Infrastructure Planning Blog

Today’s entry looks at the government’s working paper on community benefits, as well as an interesting High Court judgment on ‘overplanting’ for solar schemes.

Money for sunny

The Government has published a working paper on community benefits and shared ownership for low carbon energy infrastructure. The paper sets out a proposal for a mandatory cross-technology scheme (covering onshore and offshore wind, solar, nuclear, hydrogen, battery, and LDES projects over 5MW).

One of the aims is to ‘create a level playing field to guarantee that developers approach the provision of community benefits in the same way, and it is clear and transparent to communities how they can expect to benefit’ and to that end, there a number of options under consideration. The first is a fund based on installed capacity (there is reference to £5,000 per MW of installed capacity); the second is a contribution based on generation output but both would entail an established calculation which would set a mandatory minimum requirement.

These could be in the form of lump sums, or “frequency contributions”, and for the larger end there is the potential for regional funds or a combination of funds. Most importantly for infrastructure planning, the document sets out that:

“We would not intend to link community benefits to the planning system, given the well-established principle that community benefits are not a material consideration in planning decision making.”

This follows the established case law that you cannot pay your way to a planning permission. In R (Wright) v Resilient Energy Severndale Ltd. and Forest of Dean Council, the promoter of wind development committed to make an annual payment of 4% of the income generated by the turbine to a local community fund and sought to secure that benefit by the imposition of a condition attached to the permission. This was held to be impermissible by the Supreme Court.

I do wonder whether that principle is something which Parliament could (and should) seek to dilute. On the one hand, increasing requirements for cash to locals may make developments which are critically required commercially unviable with the effect of being overall negative for growth, and ensuring we are progressing with low carbon infrastructure. Any sum which is established would need to account for regional and geographic differences in commercial viability for projects too which may militate toward a more voluntary system.

On the other hand, positive steps to reduce the extent of local backlash and making that count in the planning context would incentivise their use, as well as substantively ensure that landowners who are worried about land values are not forced to come up with nebulous grounds for objecting to development. Disaggregating the alienability of the (private) interests of locals from the planning process often means they can’t sell their interest and are forced to make planning-based arguments against the development. That would be quite a significant reform, but it would be one that may, in the end, promote more development provided it remained a system in which the developer and relevant locals could agree their price.

Make hay while the sun shines

An interesting case came out this week: Ross v Secretary of State for Housing, Communities and Local Government [2025] EWHC 1183 (Admin). One of the issues related to the interpretation of National Policy Statement in the context of a development where the installed capacity of the facility is larger than the generator’s grid connection agreement. The solar farm had a maximum generating capacity of 49MW but proposed the installation of an indicative number of panels with a total capacity of 78MW. The relevant footnote of NPS (EN-3) sets out:

“Overplanting” refers to the situation in which the installed generating capacity or nameplate capacity of the facility is larger than the generator’s grid connection. This allows developers to take account of degradation in panel array efficiency over time, thereby enabling the grid connection to be maximised across the lifetime of the site. Such reasonable overplanting should be considered acceptable in a planning context so long as it can be justified and the electricity export does not exceed the relevant NSIP installed capacity threshold throughout the operational lifetime of the site and the proposed development and its impacts are assessed through the planning process on the basis of its full extent, including any overplanting..”

The claimant challenged the project on the basis that overplanting for any reason other than to account for panel degradation was not consistent with this part of the NPS. For context, this was a TCPA case but the NPS is nonetheless an important consideration in that context (and has useful lessons for us in the DCO world). The good judge held that overplanting which went beyond that necessary to address module degradation was not inconsistent with EN-3 provided the overplanting was justified. This is very much a welcome interpretation of EN-3, and ensures that artificial caps on solar capacity are not placed simply because they do not narrowly deal with the degradation of assets.

In an amusing part of the judgment, the judge commented that ‘the sun does not shine all the time and nor does the wind blow all the time. However, it does not mean that it is not desirable to increase the period for which a solar farm is operating at its maximum capacity and still less does it mean that seeking to achieve that is inconsistent with EN-3. Section 2.10.55 and footnote 92 explain that it is appropriate for there to be overplanting to address module degradation so as to maintain the capacity of a solar farm over its lifetime. There is no logical reason why maintaining capacity over the course of a day should not also be legitimate and appropriate.’

Here, there, everywhere

This week the High Court also affirmed the flexibility in the HS2 Acts to progress development that wasn’t precisely contemplated at the time of the HS2 Bills going through Parliament. The case is useful in the DCO context not least because some DCOs use the same language in the context of their ‘ancillary works’. For context, the HS2 Act authorises “such other works, of whatever description, as may be necessary or expedient” provided that the development was “covered by an environmental assessment in connection with the High Speed Rail (London - West Midlands) Bill”.

The Act itself authorised the construction of tunnel as the railway passed through Castle Bromwich and Bromford. As part of the detailed design (post-enactment), HS2 identified the potential to extend the tunnel by approximately 2.9 km, effectively doubling the size of the tunnel. The claimants argued that this was not authorised. The High Court held that given the broad provision which authorises “other works of whatever description”, this was in fact authorised by the Act. The claimants also sought to argue that even if fell within scope, it was not “covered” by the EIA prepared at the time of the Parliamentary proceedings. No dice again, says the High Court. This part is the most useful for affirming the wider flexibility in the infrastructure industry with the judge commenting that:

“If the likely significant effects of a proposed work under section 2(1) would not give rise to any likely significant environmental effects beyond those which had already been the subject of information and assessment in the environmental statement, then such a work would be covered by it and within the scope of the authorisation which had been properly the subject of the Environmental Impact Assessment procedure.. [The HS2] project authorised by the 2017 Act could not have every detail identified and fixed in advance, but, bearing in mind its scale and nature, it was inevitable that there would need to be some flexibility as to its final form..”

Most importantly, it was held that “the use of the word “covered” clearly contemplates that there would be non-scheduled works which could not be specified at the time of the Act passing…provided they were within what is often referred to as the environmental envelope provided for in the environmental statement” and that “the environmental envelope is constructed so as to inform the initial decision-making process before Parliament and also define the scope for non scheduled works which are necessary but unknown at the time when the Act was passed”. I say that this case has wider implications not just in the case of those DCOs which use the same language about “other works of whatever description”, but also in helping making clear that an overly prescriptive approach which requires overly specific identification of works in an ES is not an approach favoured by the courts.

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This publication is intended for general guidance and represents our understanding of the relevant law and practice as at May 2025. Specific advice should be sought for specific cases. For more information see our terms & conditions.