Judge rejects challenge to solar development on 65-acre site

In Rodmersham Parish Council, R (On the Application Of) v Swale Borough Council [2026] EWHC 2381 (Admin) (16 September 2026), Mr Tim Smith, sitting as Deputy High Court Judge, concluded that during the course of the Application, the Parish Council “had not been hampered in its ability to make extensive representations quickly notwithstanding its normal lengthy meeting cycle”.

Meanwhile, he concluded there was no Tameside duty of enquiry triggered in the circumstances of this case.

The Development in question is on a 65-hectare site at Pitstock Farm, Pitstock Road, Rodmersham.

The Claimant in the case was the local Parish Council - a long-standing objector to the Development.

Despite objections from the Parish Council and others, the Council's Planning Committee resolved to grant planning permission for the Development in a close vote on 11 September 2025.

Various complaints were made by the Parish Council in the ensuing period of three weeks, but planning permission was granted on 3rd October 2025, following the completion of a unilateral planning obligation by the Interested Party.

The Parish Council brought a challenge against the grant of the Permission by way of judicial review.

The claim included four grounds of challenge:

a) Ground 1: unlawful failure to publish the draft unilateral undertaking in good time before the decision was made;
b) Ground 2: unlawful failure to review the previous negative Environmental Impact Assessment (EIA) Screening Opinion from 2023;
c) Ground 3: material misdirection to members of the Planning Committee by the Chair saying that they would need a "substantial" reason for refusal of the Application and would be required to attend any appeal against refusal and defend the decision;
d) Ground 4: failure in the duty of enquiry regarding the likely date of a grid connection in circumstances where the Permission was granted for a temporary period of 40 years which did not begin until the first date for the export of energy.

The claim was considered on the papers by Mr C M G Ockleton (sitting as a Deputy High Court Judge).

By his Order dated 25 March 2026, Mr Ockleton granted permission for Ground 1 to proceed but refused permission for Grounds 2 to 4.

The Parish Council applied to renew grounds 2-4 following the refusal of permission. By his Order dated 19 May 2026, Mould J gave directions that the substantive hearing of ground 1 and the renewed application for permission in grounds 2-4 be heard together as a rolled-up hearing.

Mr Tim Smith said: “On this basis the case came before me for hearing. At the outset of the hearing all parties agreed that, if I were minded to grant permission for any of grounds 2-4, they were content for me then to make a substantive determination of those grounds and that no further material not already before the court would be necessary for this determination to take place.”

On ground 1, counsel for the claimant submitted that the extent and purpose of article 40(3)(b) of the Development Management Procedure Order (DMPO) is clear: a copy of any proposed planning obligation must be publicised in good time before any decision involving it is made so that it may be reviewed by third parties and any comments on its terms shared.

Rejecting this argument, the Court found that there had been no breach of Article 40 DMPO, neither technically nor in spirit, by the Council in publishing a draft S.106 Agreement minutes before the planning committee.

Mr Tim Smith said: “The period of 22 days between the date of the Committee's resolution and the date the Permission was granted afforded ample time for the Parish Council to consider and make representations on the content of the draft planning obligation if it considered it to be deficient.

The draft undertaking was available for all of that time. The terms are not especially lengthy or complex. Whilst I accept that 7 minutes was insufficient time to read and digest it fully, 22 days was ample time to be able to do so.”

Turning to ground two – that there was an unlawful failure to review the previous negative EIA Screening Opinion from 2023 - the court concluded that, read fairly and as a whole, “the officer's report reveals that he did ask and answer the right type of question about whether the previous Screening Opinion needed to be revisited. His conclusion that it did not is unimpeachable”.

Considering whether the Chairman of the planning committee misdirected members with remarks made before the vote, materially or at all, the judge rejected this argument.

Dismissing ground three on its substantive merits, Mr Tim Smith said: “The most telling gap in the evidence is anything which demonstrates that members were in fact misled into voting in favour of the application in light of the Chair's comments. Despite what he said, six members of the Committee still chose not to heed his advice and voted against the officer's recommendation. None of the five members voting in favour of the Application alongside the Chair have given any evidence to suggest that they were mistaken or misled into doing so by the Chair's comments.”

Finally, on the fourth ground, Mr Tim Smith found there was no Tameside duty of enquiry triggered in the circumstances of the case.

He said: “In my judgement, the Parish Council is a long way from demonstrating that the duty of further enquiry was triggered in this case. Weight was given by the Council to the fact that the scheme was for renewable energy because that is what policy said should happen, and because the ability to connect renewable energy to the grid was a benefit of the scheme. The weight attributed to that benefit was neither dependent upon nor influenced by the date that the benefits may start to accrue.

“Officers did not misreport the immediacy (or otherwise) of the export of energy to the grid. For all of these reasons the Council was not reasonably required to enquire any further into the likely export dates.”

Concluding the case, Mr Tim Smith dismissed ground one, granted permission for each of grounds two to four but in each case, dismissed the substantive challenge.

Giles Atkinson of Six Pump Court Chambers represented the Defendant.