High Court dismisses challenge to Planning Inspector’s jurisdiction to determine solar farm appeals belatedly contended as NSIPs
This morning, Chamberlain J handed down Judgment in R (on the application of (1) Durham County Council; (2) Hartlepool Borough Council) v Secretary of State for Levelling Up, Housing and Communities (D); Lightsource SPV 206 Limited and Lightsource Development Services Limited (IPs)  EWHC 1394.
The local planning authorities sought to challenge the jurisdiction of a Planning Inspector to determine solar farm appeals which they belatedly contended comprised a Nationally Significant Infrastructure Project (“NSIP”). The challenge was a surprising one as the LPAs had validated and determined the applications as ordinary planning applications.
The Secretary of State contended that the Inspector had jurisdiction to determine the appeals whether or not they might comprise an NSIP. There was nothing within the Planning Act 2008 or the Town and Country Planning Act 1990 which provided that planning permission could only be granted where it was required. This was in contrast to the position in respect of NSIPs under the 2008 Act where it was clear (s. 55(3)(c) PA 2008) that Parliament intended that development consent should only be granted where it is required.
Additionally, the Secretary of State contended that the Court should not consider, for itself, whether the development constituted an NSIP as Parliament had allocated that function to the Secretary of State as the primary decision maker. In the event that the Court wished to consider that issue, the Secretary of State’s preliminary view was that the development did not amount to an NSIP.
The Court examined the Planning Act 2008 regime and determined that Parliament had not allocated the question of whether a development constitutes an NSIP solely to the Secretary of State. That question could also be determined by the Magistrates’ Court in the course of a criminal prosecution (s. 160 PA 2008) and may also be considered by the County Court and High Court on an application for an injunction to restrain the implementation of development constituting an NSIP where no development consent had been granted (s. 171 PA 2008). The High Court decided that, in those circumstances, it was entitled to determine whether the development constituted an NSIP for itself even if it meant the Court had to make evaluative planning judgements (Paras 28-38).
The Court examined the appeals and determined that the development underlying them did not constitute an NSIP (Paras 39-48). Among other matters, the sharing of cabling and a common substation between two solar farms which were one mile apart were insufficient to mean that they constituted a single generating station. That finding was sufficient to dispose of the case. Importantly, however, the Court also considered the question of whether the Planning Inspector was entitled to determine the appeals even if they did constitute an NSIP. Despite commentary in the Planning Encyclopaedia to the contrary, the Court agreed with the Secretary of State’s position and held that the Inspector did have jurisdiction to determine planning appeals even if planning permission was not required (Paras 49-55).
The judicial review claim was refused.
Ryan Kohli of Cornerstone Barristers acted for the Secretary of State, instructed by the Government Legal Department.