In a rare called-in solar farm application the Secretary of State, in a decision letter dated 31 October 2016, has refused planning permission under section 77 of the Town and Country Planning Act 1990 for the installation and operation of a solar farm and associated infrastructure on 8.4 hectares of land south of Three Houses Lane, Codicote, Hertfordshire.
The application had been made by Lightsource SPV 114 Limited. Despite considerable local opposition, and the application site being wholly within the Green Belt, the local planning authority, North Hertfordshire District Council, were minded to approve the application. Local residents and two Parish Councils brought the application to the attention of the Secretary of State who then exercised his power of call. The objectors were then accorded Rule 6 status and Martin Edwards of Cornerstone Barristers instructed to act and represent them at the inquiry.
The Council continued to support the application at the inquiry. This left the task of objecting to the development with the Rule 6 parties. As the inspector recorded in his report, the thrust of the Rule 6 parties' objection was that it was not for Rule 6 Parties to demonstrate why planning permission should be refused but for the Applicant to justify its case, and for the Council to justify its recommendation to approve the application. Since the revised scheme has been the subject of consultation there has been virtually no public support for the proposal. Two fundamental objections lay at the heart of the application. The 8.4 ha site was wholly within the Green Belt and 3.8 ha of it was grade 3a Best and Most Versatile agricultural land. Consequently the proposal was contrary to both national and local policy towards the Green Belt and loss of BMV land. Furthermore, the Rule 6 parties argued that it was for the Applicant and Council to demonstrate the existence of very special circumstances sufficient to outweigh the clear harm to the Green Belt by virtue of inappropriateness and any other identified harm.
The Council acknowledged that all elements of the proposal amounted to inappropriate development. The main, if not only, benefit advanced was the potential generation of 5 MW of renewable energy. However the Rule 6 parties argued that harm to the Green Belt by reason of inappropriateness must be given "substantial weight" and drew attention to other recent Secretary of State solar farm decisions in recovered jurisdiction appeals against refusals which demonstrated a recurrent theme that Green Belt harm must be accorded "substantial weight" in line with longstanding Green Belt national and local policy. However this did not feature in the critical balancing exercise undertaken by the Council when determining to approve the application. For this reason alone, it was argued, the Council's decision to approve the proposal was open to question and so it was not possible to say that the benefits were sufficient to outweigh the Green Belt harm when that harm has not been accorded the appropriate weight. The Applicant had fallen into the same error as the Council as neither had carried out the proper balancing exercise. Consequently the proposal faced two insurmountable planning policy objections – Green Belt and loss of BMV agricultural land such that the climate change benefit was insufficient to outweigh the harm.
The Secretary of State agreed with his inspector's recommendation to refuse planning permission. He considered that substantial weight had to be attached to the harm which arose because the scheme was inappropriate development in the Green Belt and that the proposal would be at odds with one of the purposes of the Green Belt and would erode its openness and harm in the Green Belt. He also agreed that the loss of productivity from using 3.8 ha of the best and most versatile agricultural land weighed significantly against the proposal.
The value of this decision is that it shows that it is possible for objectors to successfully oppose planning applications even when faced with resistance from not only the applicant but also the local planning authority. As always, however, the key consideration is that such opposition should be soundly based on planning and other technical and policy issues supported by robust evidence and appropriate forensic argument. Martin Edwards acted for the Rule 6 parties.
Please click here for the decision letter.