The High Court ruled that, in certain circumstances, the power to determine whether a project is a nationally significant infrastructure project is also bestowed on the courts, rather than being reserved only to the secretary of state.
In R (on the application of Durham County Council and another) v Secretary of State for Levelling Up, Housing and Communities [2023] EWHC 1394 (Admin); [2023] PLSCS 100, the court evaluated whether the planning applications for a 49.9MW solar farm in 2021 should be considered as extension of a contiguous solar farm. This contiguous solar farm was qualified as an NSIP and granted development consent in 2020 via the Planning Act 2008.
In 2021, the developer submitted five planning applications to Durham County Council and Hartlepool Borough Council to develop the 49.9MW solar farm. The applications were refused and, subsequently, appealed.
During the appeal, the councils argued that the project was “functionally linked” to the 2020 consent as the projects had shared cables and substation, so the project would amount to an NSIP.
The appeal was adjourned. An application for judicial review was submitted by the councils seeking declarations that the project in the 2021 applications constituted an NSIP and that the inspector had no jurisdiction to determine the appeals.
The court took into consideration parliament’s intention under the 2008 Act and held that both the High Court and county court are able to determine in “some circumstances” whether development consent was required for the project as an NSIP, instead of this power being exclusively reserved to the secretary of state. The court considered there were powerful reasons in this case as both the councils and the developer had invited the court to resolve the issue of whether the project constituted an NSIP.
The court also held that the Town and Country Planning Act 1990 and NSIP regimes are not mutually exclusive. Therefore, the councils’ power to grant planning permission, and the inspector’s jurisdiction to entertain the appeals, are not dependent on the projects not being an NSIP.
The court concluded that the 2021 applications did not constitute an extension (thus not under the NSIP regime), because the projects constituted different “generating stations”. To reach this conclusion, the court took into consideration that the projects: 1) were developed separately at different times; 2) had separate distribution and connection agreements; 3) the shared substation in reality consisted of two substations, one for each project; and 4) the shared cables were to make the projects more efficient, not for interconnection.
The ruling allows the developers to resume their appeals before the inspector.
Stefano D’Ambrosio-Nunez is a solicitor in the planning and environment team at Irwin Mitchell
