Large scale solar farm given permission on best most versatile agricultural land

21 Dec 2023

Cornerstone Climate, Planning and Environment, Local Government

Planning permission for a large-scale solar farm has been granted on appeal on 64.5ha of productive agricultural land at Cutlers Green in Uttlesford District.

The Inspector’s decision letter, dated 18 December 2023, follows a three-week inquiry held earlier this autumn. In it the Inspector addresses each of the three main issues of impact in detail: the character and appearance of the landscape, designated heritage assets, and loss of agricultural land. In determining the planning balance, the question of need for renewable energy development was an important consideration.

The decision

Among the most important contextual facts of this particular decision are the following:

  • The planning authority’s officers had recommended approval of the application [§13, 116 and 151]
  • The Local Plan was adopted in 2005, well before the NPPF was first published, and did not contain a policy on large scale solar proposals [§136].
  • The Essex Climate Action Commission, set up by Essex County Council, had recommended that Essex should produce enough renewable energy within the county to meet its own needs by 2040 [§135].
  • The 64.5ha site consists of 85% BMV agricultural land of which 19ha is Grade 2 [§98].
  • The cable route necessary to facilitate connection to Thaxted Substation was excluded from the proposal and is intended to be delivered under permitted development rights [§10].
  • A grid connection offer had been secured at the Thaxted Substation, a fact the Inspector considered important [§118], and which led her to conclude that it was reasonable of the Appellant to confine the assessment of potential alternative sites to 4km from Thaxted Substation [§119]. It also played a part in her decision to give substantial weight to the generation of renewable energy [§141].

The Inspector handled some of the detailed policy issues as follows:

  • Despite the Appellant’s argument that the age and content of the development plan required that the NPPF tilted balance in favour of permission be applied, the Inspector did not find the relevant policies out of date, but did “give greater weight where necessary to the NPPF” [§50, 51, 167]. This was the approach the planning authority had advocated.
  • Ultimately, the Inspector gave “substantial weight” to the renewable energy generation and significant weight to biodiversity improvements which outweighed the identified harms and justified granting permission other than in accordance with the development plan [§168].
  • As for the substantial area of BMV agricultural land within the appeal site, the 2015 Written Ministerial Statement on solar and agricultural land “must be read in light of more up to date events.” [§166]. In addition, and after referring to the NPS for Energy (EN-1), the Inspector decided “none of the policy or guidance set out above prohibits [the use of BMV agricultural land] for large scale solar farms.” [§96, 165]
  • Turning to the evidence on loss of agricultural land, the Inspector held that the loss, even if permanent “would not cause significant harm when compared to the amount of BMV in the District overall.” [§101, 108].

A copy of the decision letter is here.

Our comment

The decision raises important questions about the state of policy and guidance on this important form of energy generation. For example, the Inspector’s treatment of the agricultural land issue reflects the continued uncertainty over how the Government expects decision makers to balance the tension between the need for renewable energy on the one hand and productive agricultural land on the other. This uncertainty is damaging for local communities, for trust in the decision-making process, and for the delivery of renewable energy proposals where it leads to inconsistency and, potentially, arbitrary decision making.

If the Government’s stated policy is that “large scale solar farms should be mainly on brownfield, industrial and low/medium grade agricultural land” as the Inspector acknowledges at §134, then there needs to be some policy levers capable of making this possible. If the correct approach is to allow losses of BMV land unless there is evidence of consequential harm, a fact which played a part in the Inspector’s reasoning at §101 and §108, then there should be greater clarity on that point.

Finally, the proposed transformation of the local environment inherent in all large-scale solar development is harmful for local communities if not done sympathetically. In this case there are landscaping schemes, biodiversity improvements, soil management plans, and the routing of construction traffic included within the promised mitigation measures. This requires care and long-term commitment from the contractor/operator. Decision makers need to think about how that is to be delivered and how developers who do not deliver on the environmental promises made when obtaining consent should be held to account if those promises are to have force.

Harriet Townsend and Olivia Davies acted for Uttlesford District Council in the above appeal.