Planning Court upholds rejection by inspector of appeal over solar farm

A planning inspector was entitled as a matter of planning judgement to reject an appeal over the construction of a solar farm, the High Court has found.

In Lullington Solar Park Ltd v Secretary of State for Levelling Up, Housing and Communities & Anor (Re Statutory Review under s.288 Town and Country Planning Act 1990) [2024] EWHC 295 (Admin) HHJ Jarman KC, sitting as a judge of the High Court, heard Lullington Solar Park had brought the case to question the validity of the inspector’s decision to dismiss its appeal under section 78 of the Town and Country Planning Act 1990 Act against the refusal by South Derbyshire District Council to grant planning permission for a 49.9MW solar farm near Lullington.

This would have been built on some 70 hectares of arable land, nearly half of which is designated as ‘best and most versatile’ agricultural land.

The inspector attached significant weight to the provision of clean electricity from the solar farm and moderate weight to biodiversity gains, landscape benefits and job creation, but found the harm of lost food production would be of greater significance and so conflict with the development plan and the National Planning Policy Framework.

This was challenged on the ground that it was irrational to conclude that a site selection assessment submitted by Lullington Solar Park was not sufficiently robust.

A further challenge was that the inspector’s approach to another solar farm proposal at nearby Oaklands Farm was flawed as he undertook his own research, made a mistake of fact, did not give an opportunity to comment on the research and failed to consider whether Oaklands Farm was available for a solar farm.

Lullington Solar Park’s application was recommended for permission by South Derbyshire officers but then rejected by the planning committee, in part because of the loss of agricultural land.

Under ground 1, Lullington Solar Park submitted the inspector's approach was inherently contradictory.

He had accepted it was not practicable or reasonable to investigate every possible location for a solar farm within a wide study area or incumbent on appellants to demonstrate that there are no possible alternatives to an application site.

On the other hand, he concluded that the assessment was deficient because no soil investigation was completed other than on the appeal site and as a result he concluded the assessment was not robust.

HHJ Jarman said: “Reading the decision letter fairly and as a whole, in my judgment there is no such inconsistency.

“The inspector clearly accepted, twice, that it is not practicable to investigate every possible location for a solar farm within a wide study area. He also clearly accepted that it was not incumbent on the claimant to show that there were no possible alternative sites. It is not then necessarily inconsistent to conclude that an assessment which involves no soil survey outside the appeal site is not sufficiently robust.”

He said this could have been achieved by sample surveys on other possible sites.

It was clear from the decision letter that the inspector “had well in mind the net zero targets” and gave significant weight to the development’s contribution to decarbonising electricity.

The judge said: “In my judgment the high threshold of irrationality under ground 1 has not been reached.”

During his assessment the inspector had clicked on a hyperlink in the authority's evidence and so saw a preliminary environmental report submitted for a development control order for a 163 MW solar farm at Oaklands Farm.

Lullington Solar Park argued this did not mean that attention was drawn to it as set out in the decision letter.

“In my judgment this is overly critical in circumstances where a party's evidence provides a hyperlink which goes to a webpage where such a reference then appears,” HHJ Jarman said. “There is nothing wrong in this in my judgment.”

He said the inspector had looked at Oaklands Park “as an example of why the claimant's assessment was not robust in its assessment of the agricultural value of the land and so the developer’s irrationality arguments were not made out”.

The judge concluded: “The inspector had to make a planning judgment as to the competing benefits and harms of permitting the proposed development on the one hand and of refusing it on the other.

“In so doing, he came to a different conclusion to the authority's planning officer, but it was one which he was entitled to come to and one with which this court should not interfere.”

Mark Smulian