Bramley Solar Farm Residents Group v Secretary of State for Levelling Up, Housing and Communities
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 15 November 2023 |
| Neutral Citation | [2023] EWHC 2842 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1120/2023 |
[2023] EWHC 2842 (Admin)
Mrs Justice Lang DBE
Case No: CO/1120/2023
AC-2023-LON-000276
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Saira Kabir Sheikh KC and Michael Feeney (instructed by Freeths LLP) for the Claimant
Robert Williams (instructed by the Government Legal Department) for the First Defendant
Thea Osmund-Smith and Odette Chalaby (instructed by Burgess Salmon LLP) for the Second Defendant
The Third Defendant did not appear and was not represented
Hearing dates: 17 to 19 October 2023
Approved Judgment
This judgment was handed down remotely at 10.30 am on 15 November 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
The Claimant applies for a statutory review, pursuant to section 288 of the Town and Country Planning Act 1990 (“TCPA 1990”), of the decision, dated 13 February 2023, made by an Inspector appointed by the First Defendant (“the Secretary of State”), to allow the appeal of the Second Defendant (“BSL”) and grant planning permission for the installation of a renewable led energy generating station (“the Development”) at Minchens Lane, Bramley, Hampshire (“the Site”), following the refusal of permission by the Third Defendant (“the Council”).
The Claimant comprises a group of over 450 local residents who oppose the proposed Development. The Chairman is Mr Leigh Harrison FCA and the Secretary is Mr Steve Spillane. The Claimant objected to the application for planning permission when it was under consideration by the Council (the local planning authority). At the appeal before the Inspector, they were granted Rule 6(6) status under the Town and Country Planning (Inquiries Procedure) (England) Rules 2000, and they opposed the appeal and the grant of planning permission. It was not in dispute before me that the Claimant is a person aggrieved for the purposes of section 288 TCPA 1990. Unincorporated associations that do not have legal personality can bring statutory challenges in their own name: Aireborough Neighbourhood Development Forum v Leeds City Council [2020] EWHC 45 (Admin), at [29].
BSL has at times acted through its parent company, Enso Energy, but I do not attach any significance to that. To avoid confusion, I have referred to “BSL” throughout this judgment.
The grounds of challenge may be summarised as follows:
i) The Inspector erred in law by considering the Revised Scheme, as he failed to address whether the Revised Scheme was substantially different from the Original Scheme and/or he acted unreasonably/irrationally in referring to the changes as minor, and/or he failed to give adequate reasons for his conclusions.
ii) The Inspector erred in law in considering the Revised Scheme, as the consultation on the Revised Scheme was procedurally unfair and caused prejudice to the Claimant.
iii) The Inspector acted unfairly and erred in law by failing to reach a determination before the Inquiry as to whether the Original Scheme or the Revised Scheme would be considered at the Inquiry.
iv) The Inspector erred in law by failing to have regard to the objections associated with the proposed access onto Bramley Road (“the Bramley Road Access”) and/or to provide adequate reasons for considering that the Access was acceptable.
v) The Inspector erred in law by misinterpreting paragraph 174(b) of the National Planning Policy Framework (“the Framework”).
vi) The Inspector erred in law by failing to have regard to the Claimant's case on (1) valued landscape and (2) battery storage. Further and/or alternatively, the Inspector erred in law by failing to give adequate reasons for his conclusions on these issues.
vii) The Inspector erred in law by failing to take into account a material consideration, namely a lack of identified alternative sites being considered.
I granted the Claimant permission to apply for planning statutory review, on all grounds, on the papers on 24 April 2023.
Planning history
The Site extends across 85 ha of agricultural land, currently used as 6 fields of arable farmland and grassland, within a predominantly rural landscape on the fringe of Bramley village. It is an area of archaeological interest, and it is within the setting of several listed buildings. It is close to a Conservation Area. The Site also contains numerous public rights of way (“PROWs”).
On 28 November 2020, BSL applied to the Council for planning permission. The Original Scheme comprised an energy generating station, ground mounted photovoltaic solar arrays installed across 5 of the 6 fields, together with a significant amount of associated infrastructure, including sixteen transformer stations, underground and over-ground cabling and a battery storage facility. There would be approximately 100,000 Solar Photovoltaic panels and the boundaries of the Site would have 2m high fencing for 6.84km with CCTV cameras at regular intervals. There were landscaping biodiversity enhancements, including a proposed Forest School, associated car parking and a Nature Area at the Site. It was claimed that it would generate an export capacity of up to 45MW for a period of 40 years.
The Council's Screening Opinion, dated 1 October 2020, determined that the Original Scheme fell within Schedule 2 of the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (“the EIA Regulations”). Therefore, the Original Scheme was subject to an Environmental Impact Assessment (“EIA”), and the application was accompanied by an Environmental Statement (“ES”). It was not in dispute that the ES formed an acceptable basis upon which the Council could determine the application.
The Council carried out a consultation in accordance with the statutory requirements. Thereafter, amendments were made to the proposed scheme, and consulted upon by the Council, in June and December 2021.
There were about 683 objections to the application which were summarised in the Officer's Report (“OR”), dated 20 April 2022. The OR recommended the Original Scheme for approval, subject to conditions.
However, the Council refused planning permission, on 21 April 2022, on the following grounds:
“1. The proposed development due to its scale would have an adverse impact on the landscape character and visual amenity of the area and upon the enjoyment of public rights of way where the harm would not be outweighed by the benefits of delivering a form of renewable energy. The proposal is contrary to the National Planning Policy Framework (2021) and Policies EM1 and EM8 of the Basingstoke and Deane Local Plan 2011–2029 and Policy D1 of the Bramley Neighbourhood Development Plan 2011–2029.
2. The proposed development would result in harm to the local historic environment having particular regard to the potential archaeological interest on the site itself contrary to the National Planning Policy Framework (2021), Policies EM8 and EM11 of the Basingstoke and Deane Local Plan 2011–2029 and Policy D1 of the Bramley Neighbourhood Development Plan 2011–2029.”
On 16 June 2022, BSL's agents wrote to the Council, enclosing notification of its intention to appeal against the refusal of planning permission. BSL informed the Council that it was “proposing minor changes to the refused scheme to be considered through the planning appeal process” (hereinafter “the Revised Scheme”). It went on to say:
“Paragraph M.2.2 of Annex M of the Planning Inspectorate Procedural Guide, Planning appeals – England, March 2021 explains that a Planning Inspector is able to take account of amendments during the appeal process under the Wheatcroft Principles and that a consideration for the Inspector is whether the amendment(s) sought might prejudice anyone involved in the appeal.
BSL is proposing minor changes to the masterplan to remove a small number of solar panels and a proposed forest school and car parking associated with the forest school. These areas will instead be replaced by landscape and biodiversity enhancement planting. The intended Appellant also seeks to amend the Description of Development to remove reference to the proposed forest school and associated car parking.
Where scheme changes are sought in relation to a planning appeal under the Wheatcroft Principle the onus is on the appellant to notify interested parties of these changes to demonstrate that no one is prejudiced.
BSL is proposing to notify the following parties before the planning appeal is submitted to the Planning Inspectorate:
• neighbours living in close proximity to the site;
• members of the public who responded to Basingstoke and Deane Borough Council when the planning application was lodged;
• local councillors who responded to the planning application;
• the Local Planning Authority; and
• statutory and non-statutory consultees that responded to Basingstoke and Deane Borough Council when the planning application was submitted:
○ Bramley Parish Council
○ Silchester Parish Council
○ BDBC Biodiversity, Landscape, Historic Environment, Trees, Transport
○ Hampshire County Council (HCC) Highways
○ HCC Historic Environment
○ HCC Flooding
○ HCC Archaeology
○ Environment Agency
○ Hampshire Countryside Access
○ Hampshire Environmental Protection Team
○ Historic England
○ Natural England
○ Ramblers Association
○ British Horse Society
Each party will be sent a letter explaining what is happening and the changes proposed. This letter will include a link to a dedicated website which will include information relevant to the proposed changes and details of how people can respond to the Appellant. Hard copies of information will be made available upon...
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...Limited) v Royal Borough of Windsor and Maidenhead [2021] EWHC 3408 (Admin) at [78]–[79] and Bramley Solar Farm Residents Group v Secretary of State for Levelling Up, Housing and Communities [2023] EWHC 2842 (Admin) at [165] to [166], [174] and [177] to 53 By contrast, in R (Kinsey) v Lon......