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

9 June 2023

[2023] EWHC 1394 (Admin)

High Court

Two councils argued that two nearby solar farms, together, were so big they needed special permission under a different set of rules. The judge said the farms were separate projects and didn't need that special permission, even if they were quite big. The judge also clarified that even if they did need that special permission, that didn't stop the current process.

Key Facts

•Durham County Council and Hartlepool Borough Council (claimants) challenged the Secretary of State's jurisdiction to determine planning appeals related to two proposed solar farms (Hulam and Sheraton) and associated infrastructure.
•Lightsource bp, the developer, argued the projects were not a Nationally Significant Infrastructure Project (NSIP) and thus didn't require development consent under the Planning Act 2008.
•The claimants argued that the combined projects constituted an NSIP, rendering the Secretary of State's jurisdiction invalid.
•The proposed Sheraton site is over a mile from Hulam, developed as separate projects by different companies, with separate metering of electricity generated.
•A Technical Note highlighted benefits from a shared substation and cable infrastructure, described as 'necessary related infrastructure'.

Legal Principles

Definition of 'development' under the Town and Country Planning Act 1990 (TCPA 1990).

TCPA 1990, s. 55(1)

Development consent regime for NSIPs under the Planning Act 2008 (PA 2008).

PA 2008, Part 3

Definition of 'generating station' and 'extension' under the Electricity Act 1989 (EA 1989), as incorporated into the PA 2008.

EA 1989, ss. 36, 64(1)

Jurisdiction of the court to determine whether development consent is required under PA 2008.

PA 2008, s. 171

Mutual exclusivity of planning permission under TCPA 1990 and development consent under PA 2008.

Planning Encyclopaedia

Outcomes

The claim for judicial review was dismissed.

The court held that it had jurisdiction to determine whether development consent was required under the PA 2008. It found that the combined projects did not constitute an NSIP because the two solar farms were developed separately, had separate distribution agreements and metering, and could operate independently. Even if they were an NSIP, the Secretary of State still retains jurisdiction.

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

Key Facts

Legal Principles

Outcomes

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