Advice to Newark and Sherwood District Council

Enquiry

• From: Newark and Sherwood District Council
• Date advice given: 10 August 2022
• Enquiry type: Email

The Council has received two separate planning applications on directly adjacent sites for two 49.9MW solar farms. They have been submitted by the same agent, on behalf of different companies logged as the applicant (but with the same address), but the same overall landowner and are both 49.9MW Solar Farms. The sites are directly next to one another (see attached picture of the combined areas) and if considered together they would exceed the threshold for a Nationally Significant Infrastructure Project. The applications have been validated by the LPA separately but we are unsure whether this is the right procedure we should follow as cumulatively they both would exceed the NSIP threshold. Please could you offer us any advice as a matter of procedure please?

Advice given

Thank you for your query of the 30 June 2022 regarding the two proposed solar PV sites, located at Hockerton Road, Caunton in the area of Newark and Sherwood District Council. Please accept my apologies for the delay in replying. As you will be aware, under section 14(1)(a) of the Planning Act 2008, as amended (PA 2008) the construction or extension of a generating station is defined as a Nationally Significant Infrastructure Project (‘NSIP’). Section 15 of PA 2008, amongst other things, provides that the construction or extension of an onshore generating station in England is within section 14(1)(a) only if the generating station, when constructed or extended, is expected to have a capacity of more than 50 megawatts. Development consent for development that is or forms part of a NSIP must be sought through the NSIP regime, as provided for by PA 2008, rather than under other legislation including, where relevant, the Town and Country Planning Act 1990 (see section 31 of the PA 2008). An application for such a project would be submitted to the Planning Inspectorate in accordance with the process outlined on the National Infrastructure Planning website. If a developer decides to submit an application to the relevant local authority, the Council will need to satisfy itself, taking its own legal advice if appropriate, as to whether or not any proposal can be considered and determined by the planning authority under any regime other than the development consent regime provided for by the PA 2008. It should be noted that, under section 160 of PA 2008, it is an offence if a “person carries out, or causes to be carried out, development for which development consent is required at a time when no development consent is in force in respect of the development”. It will of course be for the developer who proposes to construct the generating station to decide whether or not to apply for an order granting development consent, taking their own independent legal advice. Please note that the Planning Inspectorate does not have the power to give a legally binding interpretation on such matters. Only the Courts can provide a definitive interpretation of legislation, and, so far as we are aware, to date there has been no case law on this point under the PA 2008 regime. The Planning Inspectorate, on behalf of the Secretary of State, is only able to decide whether an application for an order granting development consent can be accepted for examination, under section 55 of PA 2008, once an application has been formally submitted. Looking at the information provided, the developer asserts that the solar PV installations on the two sites will operate independently of each other and this is indeed pertinent to considering whether the sites can be considered as different generating stations. Important considerations may include whether the solar parks will share a connection to the Distribution Network Operator (DNO) and whether a shared capacity agreement has been negotiated with National Grid. Other material considerations that may inform whether these are separate generating stations are related to the environmental impact of the proposals, if the development requires an Environmental Impact Assessment. In particular, we note that the two sites, are immediately adjacent to each other and are likely to be viewed as a single solar park in landscape and visual terms. It may also be pertinent in environmental terms if they are constructed at the same time by the same contractor and how the construction impacts are therefore assessed and mitigated. Another consideration may also be whether all of the sites are operated by the same entity and the maintenance regime(s) for the installation(s). This email should not be taken as providing any view on which is the appropriate consenting regime for these proposals, nor should any advice given in this letter be taken to pre-judge any future decisions that may be made by, or fetter any discretion of, the Secretary of State in relation to these proposals. Please note that the Inspectorate has a statutory duty to record and make publicly available any advice, such as this, given under s51 of the PA 2008 about applying for an order granting development consent; or making representations about an application, or a proposed application for a development consent order. If you wish to seek any further advice in relation to the NSIP planning regime and these proposals, please contact us again.