‘Utility scale’ solar backed in revised UK planning regime

That EN-3, the draft national policy statement for renewable energy infrastructure, will now refer specifically to solar energy generation, is a long-awaited and significant step. It forms part of a wider package of reforms planned to the national policy statements for energy infrastructure in the UK – documents which guide decision-makers on the application of government policy when determining applications for development consent for nationally significant energy infrastructure under the Planning Act 2008 regime.

The existing regime and its challenges

The existing EN-3 does not refer to solar generation specifically. This has meant that, while utility scale solar projects – those being over 50 MW in scale in England and over 350 MW in Wales – have been able to be promoted under the national policy statements for energy infrastructure, developers have had to follow a more protracted route to gaining planning permission.

To-date, developers have had to rely on the general policy support within EN-1, the overarching national policy statement for energy infrastructure, for their solar projects.  Importantly, however, the legislative requirement to determine their application in accordance with the Planning Act 2008 regime did not apply. Rather, applications were determined with the Secretary of State having regard to any local impact report submitted by a relevant local planning authority, certain prescribed matters and any other matters which the Secretary of State thought was important and relevant. The proposed amendments to EN-3 in the current review will not only address this but provide a much stronger basis for promoting utility scale solar.

At the time of publication of the last version of this document in 2011, utility scale solar schemes were not considered viable and therefore they were not referred to. That is emphatically no longer the case – the first solar development consent order (DCO) was granted in May 2020 for the Cleve Hill Solar Park, and another solar DCO is currently in the examination phase for the Little Crow Solar Park. We are aware of many more solar DCOs likely to be brought forward on the basis of the new policy.

Solar’s role in the UK’s energy mix

The government expects solar, together with wind, to be the predominant source of energy generation by 2050. It also recognises that whilst solar and wind will provide the predominant component in the energy mix it will need to be supported by other forms of electricity generation, including energy storage. This position reflects the government’s drive to meet its net zero carbon emission targets while ensuring security of supply and maintaining low costs to the consumer.

Solar projects are now one of the cheapest forms of electricity generation and viable without subsidy from central government. They are also capable of being delivered relatively quickly, assisting with the urgent need for new electricity generation in the short to medium term as well as the long term. This is recognised by the draft policy and will be welcomed by the solar industry, with the government having drawn upon key themes from the Cleve Hill Solar Park DCO and cemented them in the new policy.

NPS EN-1 establishes that the Secretary of State, when determining applications for development consent, should assess that application on the basis that the government has already established that there is an urgent need for those types of infrastructure referred to in the document. There have been previous challenges to the grant of development consent applications on the basis that the Secretary of State ought to examine the quantitative need that a particular project would contribute towards meeting the overall need for increased electricity generation. Therefore, solar farm developers have had to produce their own statement of need to supplement the aging policy statement.

The changes made to NPS EN-1 make it clear that the government does not intend there to be any limits on new electricity infrastructure to be consented in accordance with the revised new policy statements as they have other mechanisms to deliver its energy objectives.

Technical details in the revised EN-3

EN-3 sets out a series of matters that are relevant to bringing forward an application for development consent and which the Secretary of State will consider when determining whether development consent should be granted.

The new EN-3 clarifies when a utility scale solar farm will be considered a nationally significant infrastructure project (NSIP) for which a DCO is required. Previously it was not clear whether the generation capacity threshold should be measured in DC or AC – solar panels generate in DC but the power exported to the grid after inversion is AC. The government has clarified that, for the purposes of interpreting the threshold, the solar project should be measured using the combined capacity of the installed inverters in AC.

The draft revised EN-3 also helpfully sets out an example of the size of site and number of panels required to generate over 50MW of solar energy – between 100,000 to 150,000 panels and 125 to 200 acres – and notes that the scale of development will inevitably have impacts if sited in rural areas. The focus is therefore on the use of good design to mitigate impacts as far as possible, as set out in EN-1.

EN-3, as revised, makes it clear that site selection is a matter for the promoter – grid connection capacity and access will be a significant factor in site selection. The presumption remains that solar projects should make use of previously developed land, contaminated land, industrial land or agricultural land of classification 3b, 4 and 5 – i.e. not best and most versatile (BMV) land), however land type should not be a predominating factor in determining the suitability of selection of a site. Confirmation that land type should not be a predominating factor will be very helpful when considering schemes that include BMV land, which before now would have been a consenting risk.

The proposed new policy also recognises the biodiversity benefits of solar farms where agricultural land is no longer managed intensively, and it refers to the aim for solar projects to achieve environmental and biodiversity net gain in line with the ambition set out in the 25 year environment plan, though this is likely to be updated once the legal obligation for biodiversity net gain for NSIPs proposed in the Environment Bill comes into force.

The draft revised EN-3 further clarifies that the proposed generation capacity should not be used as a tool to constrain impacts of the solar farm. There are other parameters, such as the total area or percentage of ground under solar panel, much better suited to controlling the environmental effects of solar farms, so this is a welcome development. By not constraining capacity, promoters will have the flexibility to take advantage of improvements in technology.

The proposals also make clear that different types of panel layout and technology may be used, for example south facing, east-west or tracker, and acknowledges that the final design may not be known pre-consent. Provision is made for the potential use of energy storage instead of panels, if viable. Promoters will need to ensure that the worst-case effects have been assessed to have flexibility over the final design consented by the DCO.

The draft revised EN-3 refers to time limited consents – based on the design life of solar panels – as being an option for promoters. The time limit would commence once the solar farm starts to generate electricity. This is likely to only be of interest to a promoter for sites where there are particular impacts where the temporary nature of the development can be considered a form of mitigation for those impacts, such as in the case of heritage impacts. However, reference in the draft policy to a typical life span of 25 years may set an unrealistic expectation – viability assessments for new utility scale solar projects have been based on 35-plus years, with Cleve Hill consented on the basis of a minimum of 40 years. It will be interesting to see if stakeholders and local communities request such time limits for all solar farms.

Overall, the proposed revised EN-3 provides a much stronger basis for promoting the pipeline of utility scale solar farms expected over the next five years.

Co-written by Tom Edwards of Pinsent Masons.