The King (on the application of Ian Galloway) v Durham County Council

Hearing date: 17.1.24

Draft judgment: 12.2.24

Approved Judgment

I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Introduction

This is a judicial review case about planning permission and a proposed solar farm development in DH7. The Developer (the Interested Party) is a special purpose company related to Lightsource bp, as was the case in R (Durham County Council) v Levelling Up Secretary [2023] EWHC 1394 (Admin) [2023] PTSR 1735 (see §2). The location (postcode DH7 0RY) is a group of fields described as 93 hectares (230 acres) of land, approximately 230m north of Burnhope, 800m south east of Maiden Law, 1.5km east of Lanchester and 2.2km to the south of Annfield Plain and Stanley. The solar farm would be connected to the National Grid by underground cable, to provide clean energy for up to 13,861 homes. Mr Galloway (the Claimant) lives in Burnhope. His witness evidence tells me about Burnhope, the nearby landscape and footpaths across it.

The Developer made two applications. First, an application dated 30 June 2022 (reference DM/22/01769/FPA) for full planning permission pursuant to s.70 of the Town and Country Planning Act 1990. The Council (the Defendant) by its County Planning Committee resolved on 7 March 2023 to grant that application. It was subsequently granted by a Decision Notice dated 13 July 2023. The March 2023 resolution was preceded by a March 2023 Officer Report by the Council's Senior Planning Officer (Chris Shields), whose recommendation was accepted by the Committee. Secondly, an application dated 24 October 2023 (reference DM/23/03147/NMA) for a non-material amendment (“NMA”) pursuant to s.96A of the 1990 Act (§33 below). The Defendant by its Head of Planning and Housing (Michael Kelleher) granted that application on 7 November 2023. That November 2023 NMA decision was preceded by a 7 November 2023 Officer Report by Mr Shields and Claire Teasdale, whose recommendation was accepted by Mr Kelleher. The NMA had four aspects (see §§33, 52, 67–68 below). The virtues of open-administration and online-accessibility in the planning world mean that any reader's thirst for further detail can be quenched by googling the references.

This case has three features with parallels in other recent cases. (1) The Statutory Capacity Threshold for solar farm developments approvable by a local planning authority (§9 below) featured in Durham. (2) An exercise of interpreting a conformity planning condition (§35 below) featured in R (Swire) v Canterbury City Council [2022] EWHC 390 (Admin). (3) An interpretive premise for an NMA decision (§34 below) featured in R (Milne-Skillman) v Horsham District Council [2023] EWHC 2919 (Admin).

The Developer asked the Council to afford substantial positive weight to the level of renewable energy that would be generated by the solar farm, pointing to the Council's 2019 declaration of a climate emergency and Climate Emergency Response Plan. Objective 17 of the County Durham Plan (“CDP”), adopted by the Council in 2020, is: “Reduce the causes of climate change and support the transition to a low carbon economy by encouraging and enabling the use of low and zero carbon technologies, supporting the development of appropriate renewable energy sources and sustainable and active transport”. Policy 33 says: “Renewable and low carbon energy development in appropriate locations will be supported. In determining planning applications for such projects significant weight will be given to the achievement of wider social, environmental and economic benefits”.

The Committee decided this was an appropriate location. It decided that it was acceptable to have a solar farm development, at this location, sufficient to provide clean energy for up to 13,861 homes. The planning assessment in the March 2023 Officer Report had included these conclusions (§§196–200):

196. Although there would be a degree of landscape harm, and harm to amenity of recreational routes, it is considered that the benefits of the proposal would outweigh this harm. The proposed solar farm development would provide a significant renewable energy source using solar power sufficient to provide clean energy for up to 13,861 homes whilst also reducing dependence on fossil fuel power stations. Further benefits of the scheme include significant biodiversity and landscape improvements to the site and direct employment to the construction industry. Officers consider that the proposed solar farm would accord with CDP Policy 33 .

197. Although changes have been made to the proposed solar farm during the course of consideration of the application, it would still constitute development in the countryside resulting in a degree of landscape harm and a conflict with CDP Policy 26 in respect of public rights of way. Efforts have been made to screen the solar arrays and from many public viewpoints the arrays would be obscured by vegetation or topography. In more open, and distant views the solar arrays would be seen as a developed feature within a rural landscape that could not be mitigated by screening. All other material considerations have been taken into account in the determination of the solar farm application and found to be acceptable .

198. Whilst it is accepted that the proposed solar farm would have an impact to the landscape it is considered that the benefits of the development in terms of energy supply and security, support for renewable energy, biodiversity enhancement and job creation would outweigh that harm and planning permission should be granted .

199. The proposed development has generated significant public interest, with letters of objection having been received. Concerns expressed regarding the proposal have been taken into account, and carefully balanced against the scheme's wider social, environmental and economic benefits .

200. The solar farm proposal is considered to broadly accord with the relevant policies of the County Durham Plan and relevant sections of the [National Planning Policy Framework] .

The acceptability of this as a location is a planning judgment which is unimpeachable. But did the Council give planning permission for a solar farm with a “capacity” above 50MW? Did the Council give planning permission for a ‘footprint’ of blue land covered by “the solar arrays” which was bigger than is needed? Was the size of this ‘footprint’ a detail left over for pre-commencement approval? These are among the questions I need to address.

The Agreed Issues

The Agreed Issues are as follows (the labelling is mine):

[AI.1]: Whether the original grant of planning permission approved Trina 685 Wp panels and thereby purported to grant planning permission for a generating station with a capacity of 50MW or more (indeed, around 75MW);

[AI.2]: Whether the planning permission, correctly interpreted, approved such a very large number and area of solar panels that they could only have a capacity under 50MW if the panels were considerably below the power of panels conventionally used and available;

[AI.3]: Whether the planning permission is unlawful because: [AI.3a] The Defendant approved a scheme which cannot be authorized by planning permission; [AI.3b] The Defendant approved a scheme which is incapable of being built out in full, as a matter of law; and [A1.3c] The Defendant failed to take into account a material consideration, namely, that it was approving more panels over a larger area than were required to produce the stated (and a lawful) electricity generating capacity;

[AI.4] If the original grant of planning permission was unlawful, whether this can be saved from quashing by the non-material amendment purportedly made under section 96A of the 1990 Act: [A1.4a] Given (on this premise) that it was an amendment to an unlawful original permission; [A1.4b] Given the effect of the non-material amendment, as correctly interpreted; and [A1.4c] Whether the non-material amendment was lawfully granted .

On analysis, Mr Galloway's claim for judicial review really boils down to two key lines of challenge (§§59, 71 below). Before getting to them, I have a lot of ground to cover.

‘Rolling judicial review’

The ventilation of Agreed Issue [A1.4c] attracted resistance from the Council and the Developer. They characterised it as inappropriate ‘rolling judicial review’. But this resistance subsided. Here is what happened. Mr Kelleher's November 2023 NMA Decision came just in time to be relied on in the Council's, and the Developer's, Detailed Grounds of Resistance. Those documents were the pleaded responses to Mr Galloway's August 2023 judicial review challenge to the July 2023 Planning Permission. This reliance was the purpose of the NMA. When Mr Galloway promptly applied to amend his judicial review grounds, to challenge the NMA Decision, the Council and Developer persuaded HHJ Klein that Mr Galloway should instead have issued a second judicial review claim. Mr Galloway did so, while also invoking a ‘liberty to apply’ for which HHJ Klein rightly made provision. The Council and Developer sought to rely on the NMA Decision at the hearing before me, while at the same time opposing the Court considering Mr Galloway's four-page grounds impugning its legality. I found that bewildering. But...