Durham County Council v Secretary of State for Levelling Up, Housing and Communities

Hearing dates: 23 and 24 May 2023

Approved Judgment

Introduction

The claimants are Durham County Council (“Durham”) and Hartlepool Borough Council (“Hartlepool”). On 17 June 2020, Durham granted an application by a special purpose company related to Lightsource bp, which specialises in the development and management of solar energy projects. The application was for planning permission for a solar farm with a generating capacity of 49.9 MW, associated infrastructure and an electricity substation at Hulam Farm (“Hulam”). The permission has yet to be implemented.

In 2021, a further five applications were made by two further special purpose companies related to Lightsource bp. I shall refer to the applicants together as “Lightsource”. These were for planning permission for:

(A) a proposed solar farm with a generating capacity of 49.9 MW at Sheraton Farm occupying an area of approximately 77 ha (“Sheraton”);

(B) the construction of underground electricity cables and associated infrastructure;

(C) the construction of underground electricity cables and associated infrastructure to connect the Sheraton solar farm to the primary proposed substation. This proposal is intended to link the substation at Hulam into Sheraton;

(D) the erection of a substation and the installation of a physical cable connection to Hulam and the existing substation to the south of the A179 trunk road. The substation is intended to link into Sheraton; and

(E) the construction of underground electricity cables and associated infrastructure to connect Hulam to the existing substation near Hart.

Applications (A) and (B) were made to Durham. Applications (C), (D) and (E) were made to Hartlepool. All were accepted as valid but refused. All were appealed to the Secretary of State under s. 78 of the Town and Country Planning Act 1990 (“TCPA 1990”) and referred to the Planning Inspectorate (“PINS”). The appeals are referred to as Appeals A, B, C, D and E.

The Inquiry was due to commence on 15 November 2022. On 9 November 2022, PINS wrote to the claimants and Lightsource inviting legal submissions on the following questions:

a) whether any of the five appeals could be considered to be an extension to Hulam by reason of being functionally linked;

b) whether development consent would be required in accordance with the Planning Act 2008 (“the PA 2008”) for the resultant generation capacity;

c) whether there were implications related to these issues for any grant of planning permission for these appeals and the Inquiry.

The parties provided written submissions on these questions and the Inquiry opened on 15 November 2022. Lightsource's position was that the projects were not a nationally significant infrastructure project (“NSIP”), so development consent under the PA 2008 was not required. Durham and Hartlepool disagreed. In their view, the projects taken together were an NSIP. The Inspector adjourned the Inquiry for reasons she later reduced to writing. In a letter of 17 November 2022, she said that:

a) she had adjourned the Inquiry for a limited period on the understanding that the claimants would issue the present claim for judicial review within a period of two weeks of the receipt of her letter;

b) it was not within her power to make a “definitive ruling” on whether or not the proposed developments comprised an NSIP – this was a matter for the courts;

c) she believed that she had jurisdiction to determine the appeals before her.

Durham and Hartlepool filed the present claim, seeking three declarations. The third is not now pursued. The first two are:

“Declaration One: A declaration that the subject matter of the appeal applications comprise a Nationally Significant Infrastructure Project within the meaning of the Planning Act 2008.

Declaration Two: A declaration that the Defendant does not have jurisdiction or is otherwise entitled to determine the appeal applications made under the Town and Country Planning Act 1990.”

Permission was granted on the papers by Lang J on 22 February 2023. The hearing took place over two days on 23 and 24 May. John Barrett appeared for Durham, John Hunter for Hartlepool, Ryan Kohli for the Secretary of State and Michael Humphries KC for Lightsource. I am grateful to all counsel for their helpful submissions.

There are three issues for me to determine today:

a) Can and should the court determine whether development consent under the PA 2008 would be required for the projects taken together? Messrs Humphries, Barrett and Hunter submit that I should. Mr Kohli submits that I should not, because that question is allocated by the PA 2008 to the Secretary of State in the first instance and he has not yet determined it.

b) Are the projects an NSIP? Messrs Barrett and Hunter say “Yes”. Mr Humphries says “No”. Mr Kohli says that, although the Secretary of State has not formed a concluded view, his preliminary view is “No”.

c) If the projects are an NSIP, does the Inspector have jurisdiction to consider the appeals? Messrs Barrett and Hunter say “No”, because the regimes under the TCPA 1990 and the PA 2008 are mutually exclusive. Mr Kohli and Mr Humphries submit that the Inspector's jurisdiction to hear the appeals does not depend on whether the projects are an NSIP.

The claimants originally invited me to determine another issue: whether, having accepted the planning applications as valid, they were estopped from asserting that the Inspector lacked jurisdiction to hear the appeals. The third declaration sought (not now pursued) related to this issue. However, both Mr Kohli and Mr Humphries confirmed that they were not suggesting that the claimants were estopped, so the issue does not arise.

The facts

Lightsource emphasises the following facts, which are not in dispute.

The proposed Sheraton site is over a mile from the proposed Hulam site. From inception the two sites were considered, developed and managed as separate projects. The planning applications were submitted by different special purpose companies. The electricity generated at each site will be transmitted by 33kV underground cables to the proposed Hart Moor substation, which will in fact consist of two side-by-side substations and switch houses, one for each solar farm. The electrical output from the two farms will be separately metered. The proposed Hart Moor substations will then connect via 66kV underground cables to the existing Hartmoor substation, operated by Northern Powergrid (“NPg”), the Distribution Network Operator (“DNO”), and then on to the wider distribution network. It is anticipated that NPg will adopt the proposed Hart Moor substations as part of its DNO network.

The claimants, for their part, point out that Lightsource had provided a Technical Note clarifying the inter-relationship between the cable proposals and the solar farms at Sheraton and Hulam. This Note sets out a range of benefits from the location of the proposed shared or “common” substation at Hart Moor and the consequent need for the proposed cable, which had been described as a “necessary piece of related infrastructure”. The solar farm at Sheraton consists of four non-contiguous fields each containing an array of photovoltaic panels.

The law

The TCPA 1990

Part III of the TCPA 1990 concerns control over “development”, which means “the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land”, except where the context otherwise requires and subject to ss. 55(2)-(5): s. 55(1).

Section 57 provides as follows:

“(1) Subject to the following provisions of this section, planning permission is required for the carrying out of any development of land.

(1A) Subsection (1) is subject to section 33(1) of the Planning Act 2008 (exclusion of requirement for planning permission etc. for development for which development consent required).”

Section 78(1) confers on an applicant a right of appeal to the Secretary of State against (inter alia) a refusal of planning permission by a local planning authority. Section 79 empowers the Secretary of State to allow or dismiss the appeal, or reverse or vary any part of the decision of the local planning authority and to deal with the application as if it had been made to him in the first instance. Section 79(6) provides as follows:

“(6) If, before or during the determination of such an appeal in respect of an application for planning permission to develop land, the Secretary of State forms the opinion that, having regard to the provisions of sections 70 and 72(1)… planning permission for that development—

(a) could not have been granted by the local planning authority; or

(b) could not have been granted otherwise than subject to the conditions imposed,

he may decline to determine the appeal or to proceed with the determination.”

Section 336(1) provides that “planning permission” (except in so far as the context otherwise requires and subject to the following provisions of s. 336) “means permission under Part III of...