The King v Test Valley Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Morris |
| Judgment Date | 06 September 2023 |
| Neutral Citation | [2023] EWHC 2221 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2047/2022 |
and
[2023] EWHC 2221 (Admin)
THE HONOURABLE Mr Justice Morris
Case No: CO/2047/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
James Burton (instructed by Lewis Silkin LLP) for the Claimant
Robin Green and Robert Williams (instructed by Sharpe Pritchard LLP) for the Defendant
The Interested Party, represented by Pinsent Masons LLP, did not appear
Hearing dates: 26, 27 and 30 January 2023.
Further written submissions: 8 February 2023
Approved Judgment
Introduction
By this application for judicial review, Mrs Chala Fiske (“the Claimant”) seeks an order quashing the decision dated 27 April 2022 of Test Valley Borough Council (“the Defendant”) to grant Woodington Solar Limited (“the Interested Party”) planning permission pursuant to section 73 Town and Country Planning Act 1990 (“TCPA”) (“the 2022 Permission”) “varying” the conditions in respect of an earlier planning permission. That earlier planning permission granted on 4 July 2017 (“the Original Permission”) was for the development of a solar farm, including ground mounted solar panels and an electricity substation, a 33kV substation, on approximately 72 hectares of agricultural land at Woodington Farm, Woodington Road, East Wellow (“the Site”). The 2022 Permission removes the 33kV substation.
The Claimant contends that the 2022 Permission was unlawful for two reasons, in summary:
(1) The 2022 Permission was ultra vires section 73 TCPA since, by removing the substation permitted by the Original Permission, the Defendant granted a permission that conflicts with the operative wording of the Original Permission and/or that fundamentally alters the development permitted under the Original Permission.
(2) The Defendant failed to have regard to a mandatory material consideration, namely the fact that in granting the 2022 Permission it would be granting a permission which altered the Original Permission by removal of the substation.
Permission to apply on these two grounds was granted by David Elvin QC on 29 July 2022.
The facts in summary
The Site is in the countryside, near to the settlement of East Wellow, Test Valley, Hampshire. The Site “red line” extends to a little over 70 hectares of agricultural land, separated by woodland, hedgerows and trees. A 132kV overhead electricity line runs across the Site. The Claimant lives near the Site at Little Woodington, within East Wellow, with her husband, Mr Anthony Fiske. She provided two witness statements. She explains that she is a scientist with an extensive science education and a science based career in industrial network architecture and engineering projects over 30 years. She gives evidence about the nature of the solar park. The Defendant is the local planning authority. The Interested Party is a company, of which Mr Timothy Redpath is a director. Mr Redpath is also a director of Hive Energy Limited (“Hive”), the Interested Party's parent company (referred to in paragraph 7 below). Mr Redpath's witness statement in the 2021 Permission Judicial Review (see paragraphs 21 and 38 below) is also relied upon by the Defendant in these proceedings. Mr Hugh Brennan is also a director or employee of the Interested Party and of Hive.
The context for this challenge to the 2022 Permission is a sequence of events since 2017. On 4 July 2017 the Defendant granted planning permission, ref. 15/02591/FULLS, (“the Original Permission”) addressed to Mr Brennan for the development of a solar farm, including ground mounted solar panels and an electricity substation, at the Site.
On 24 May 2021 the Defendant granted planning permission, ref. 20/00814/FULLS, (“the 2021 Permission”) to the Interested Party for the installation of a different electricity substation, ground mounted solar panels, ancillary equipment, infrastructure and access on 6.78 hectares of land located within an area close to the centre of the scheme covered by the Original Permission.
On 27 April 2022 the Council granted planning permission, ref. 21/03722/VARS, (“the 2022 Permission”) to the Interested Party for the variation of conditions attached to the Original Permission, the effect of which is to remove development from the area covered by the 2021 Permission, allowing the remainder of the solar farm permitted by the Original Permission to operate in tandem with the 2021 Permission. It is the 2022 Permission which is the subject of this application.
The Detailed Factual Background
(1) The Original Permission 2017
The application
In November 2015 Mr Brennan acting for Hive applied for planning permission for installation of a ground mounted solar park at the Site.
The Officer Report: May 2017
In the Officer Report dated around May 2017, it was stated, at paragraph 3.5, that a District Network Operator (DNO) substation was proposed in the southern part of the site. Underground cabling would be laid from the solar panel strings to the inverter housings and then routed along the access tracks to the DNO substation. At paragraph 8.33 the Report recorded that an application for grid connection had been made to the DNO with a point of connection proposed to the south of the site on land under the control of the applicant.
The Officer Update Report: June 2017
The Officer Update Report dated around 6 June 2017 explained late changes to the application regarding the substation and that the solar farm would be connected to the grid, on site, by the substation. It stated, inter alia as follows:
“3.0 PLANNING CONSIDERATOINS
..
3.6 Proposed Substation
Further clarification has also been received in respect of the substation required in order to connect the proposed solar farm to the National Grid. The supporting information originally submitted with the application made reference to a new substation being provided on land to the south of the application site, as referred to in paragraphs 3.5 and 8.33 of the report – however no details regarding this location were provided.
3.7 The applicant has now confirmed that the substation is to be sited in the eastern half of the middle field of Parcel B, adjacent to the existing tower to connect into the grid. The substation would be positioned as close as practicable to the tower and connected via underground cables – as such, the only structure required would be a single storey building, measuring 5m x 4.5m in footprint … The applicant has stated that the final siting would be determined in discussion with the District Network Operator.
3.8 The sub-station building would be positioned adjacent to the solar panels proposed in this section of the site, with Smidmore Copse to the north. It is also noted that additional tree planting is proposed in the wildlife conservation area in the easternmost section of this middle field area, supplementing the existing tree belts around the field boundaries. Given the presence of the existing overhead lines and tower and the backdrop of the proposed panels and existing tree belts/woodland, it is not considered that there would be any adverse visual impact arising from the substation in this location. A condition is recommended to ensure the final details in terms of siting, materials and means of enclosure are submitted for approval.”
( emphasis added)
The condition referred to at paragraph 3.8 was to become Condition 15 in the Original Permission.
The Claimant submits that, in this way, the 33kV substation was presented to, and approved by, the Defendant on the basis that it was essential to allow the solar park to achieve its purpose, namely connection to the grid.
The Original Permission
On 4 July 2017 the Defendant granted the Original Permission for
“Installation of a ground mounted solar park to include ancillary equipment, inverters, substation, perimeter fencing, cctv cameras, access tracks and associated landscaping”
( emphasis added)
I refer to the foregoing as the “operative wording”.
The Original Permission continued as follows:
“In pursuance of its powers under the above-mentioned Act the Council… hereby grants full planning permission for the above development in accordance with the approved plans listed below and subject also to due compliance with all conditions and notes specified hereunder:
Approved Plans:
Site Layout – Plan Ref No. H.0357_06-H - 20/01/17
…
Details – Plan Ref no DIS000 – 21/10/15
…”
Condition 2 provided that:
“The development shall not be carried out other than in complete accordance with the approved plans comprising drawings:
…
Site Layout Plan … drwg H.0357_06-H
…
Typical Single 33KV GRP Housing Switchgear – drwg DIS000
…”
Site Layout plan H.0357_06-H at that stage did not indicate a location for the, or any, substation. However drawing DIS000 is a drawing of a 33kV substation and is the substation referred to in the operative wording of the Original Permission.
Condition 15 to the Original Permission provided:
“Prior to the commencement of the development hereby permitted, full details of the proposed siting, external materials, external lighting and means of access/enclosure for the sub-station, as shown on drawing DIS000, shall be submitted to and approved in writing by the Local Planning Authority. Implementation shall be in accordance with the approved details.
Reason: To safeguard the visual amenities of the area in accordance with Policy E2 of the Test Valley Borough Revised Local Plan (2016).” ( emphasis added)
(2) The first section 73 variation: February 2019 to June 2020
On 18 February 2019 the Interested Party applied pursuant to section 73 TCPA to vary Condition 2 to the Original Permission. On 10 July 2019 the Defendant granted planning permission...
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