Major UK solar park development moves closer after appeal ruling

The proposed Cleve Hill Solar Park, which would deliver capacity to generate 373MW of power, is a ‘nationally significant infrastructure project’ (NSIP) that received development consent from the secretary of state in 2020.

The developer plans to build a battery energy storage system (BESS) on the same site as the solar park. The secretary of state approved an outline battery safety management plan alongside the development consent order (DCO) in 2020, following scrutiny of that plan by the Planning Inspectorate in examination.

The DCO that was granted for the scheme imposes requirements, similar to planning conditions, one of which obliged the developer to prepare a detailed battery safety management plan (BSMP) which accorded with the outline plan approved by the secretary of state. The BSMP was required to “prescribe measures to facilitate safety during the construction, operation and decommissioning” of the BESS, including in relation to “the transportation of new, used and replacement battery cells both to and from the authorised development”.

Earlier this year, the local planning authority for the scheme held that the developer had not met the requirements pertaining to the BSMP. However, that decision was appealed by the developer, and a planning inspector, appointed to consider the appeal by the secretary of state, has now ruled that authority had behaved unreasonably in refusing the application.

The planning inspector considered that it was appropriate in this case, in line with planning practice guidance, to require the local planning authority, Swale Borough Council, to bear the developer’s costs for what he deemed was the “unnecessary or wasted expense” the developer incurred in being forced to pursue an appeal.

Swale Borough Council had, among other things, considered that the BSMP failed “to demonstrate that risks to public safety have been adequately assessed by virtue of a lack of on-site water storage capacity; insufficient access to the battery storage enclosure in the event of a fire and the lack of a detailed emergency evacuation plan and risk assessment”.

However, neither the Health and Safety Executive nor Kent Fire & Rescue Service (KFRS), who the developer and local authority were obliged to consult, raised objections with the BSMP, while the council’s own appointed experts also recommended that the council determine that the developer had met its related statutory requirements in relation to the BSMP.

The planning inspector said there was “very little evidence” to justify the council departing from the recommendations it had been given to approve the application. He considered the council was required to give “clear and cogent reasons … for the refusal and an explanation as to why the decision deviated from the specialist advice provided by the local fire service” but that it had not done so.

“Whilst it is open to the discharging authority to refuse to approve the details submitted [by the developer in respect of meeting the BSMP requirements set out in the DCO], little justification has been provided as to why the advice of the mandatory consultees was departed from,” Cullum Parker, the planning inspector appointed to hear the appeal, said. “Indeed, the unreasonable behaviour I have identified above has directly led to the need for the appeal to take place. This could have been avoided. The unreasonable behaviour has led to unnecessary and wasted expense for the [developer] in having to pursue the appeal process for a scheme where the mandatory consultees … did not object.”

Renewable energy expert Gareth Phillips of Pinsent Masons, which acts for the developer, said: “The appeal result is confirmation that the developer’s battery proposals met the planning and safety requirements, and the local authority’s rejection of the plan was made without justification.”

“The full costs award is reassuring that unreasonable conduct by public decision makers, which serve to delay clean energy projects, will get called out. The project will be an important step in providing the UK with clean, renewable solar energy and a vital part of the country’s ambitions to meet its net zero targets,” he said.

“This is a case where the developer, the statutory consultees, and the planning officers at the local authority did all that was required of them, with the officers taking the extra step of consulting the local community and appointing an independent expert to achieve greater reassurance. Both were let down by unsubstantiated decision making. The costs award serves as a reminder that public law decision making should be evidence-based and impartial in order to achieve the legal requirement for good administration,” he said.

Phillips added that the case also highlights the need for developers to consider carefully the requirements and appeal provisions included in DCOs. Here, bespoke appeal provisions included in the DCO for Cleve Hill enabled the appeal to be determined within a couple of months, much faster than achievable under planning legislation.