Athos Solar GmbH & Ors, R (on the application of) v The Secretary of State for Business, Energy and Industrial Strategy

A consultation proposal does not bind the decision-maker to implement it unchanged. Reconsultation is required only where a subsequent change is so fundamental that proceeding would be conspicuously unfair. A planning application’s validity is determined by compliance with statutory requirements, not created by the local planning authority’s later decision. A policy-maker may define eligibility for a grace period by reference to that objective status. The resulting distinction between valid and invalid applications is not irrational merely because it produces hardship at a fixed cut-off date. Government may change policy on rational grounds unless its prior conduct created a specific assurance. Commercial expenditure made in reliance on a consultation proposal remains at the developer’s risk, and any interference with protected possessions must be proportionate to the public interest.

The claim concerned the December 2015 consultation response on withdrawing Renewables Obligation support for small-scale solar photovoltaic projects. The response stated that eligibility for a grace period required evidence of a valid planning application submitted by 22 July 2015, although the July consultation had referred simply to a planning application received by that date.

Lark Energy argued that the requirement for validity was an unlawful change requiring renewed consultation. It also alleged irrationality, breach of legitimate expectation, unlawful retrospectivity and interference with rights under article 1 of the First Protocol to the European Convention on Human Rights. The court considered whether any ground was arguable on the renewed application for permission.

1. Permission refused. None of the grounds was arguable. The court also considered the renewed application in the light of the earlier refusal of permission by Langstaff J.
2. A planning application is valid if it complies with the statutory requirements in the applicable Development Management Procedure Order. It is invalid if it does not. The local planning authority’s decision records the existing legal status; it does not create that status. The category of non-validated applications, arising in a validity dispute, did not undermine the basic distinction between valid and invalid applications.
3. The December 2015 response did not materially change the July proposal. Requiring a valid application made explicit what was already implicit in the reference to a planning application. In any event, a change during consultation does not require renewed consultation unless it is fundamental and proceeding without further consultation would be conspicuously unfair. That threshold was not met. Consultees had an opportunity to address the grace-period criteria, including the effect of incomplete applications submitted after the consultation opened.
4. The valid-application criterion was rationally connected with the policy of identifying projects that had reached the stage of a properly constituted planning application, while limiting expenditure under the Renewables Obligation and protecting the Levy Control Framework. Hardship at the boundary did not make the criterion irrational or arbitrary.
5. The consultation document was a proposal, not an enacted policy. It created no legitimate expectation that the proposal would be implemented unchanged or without adverse effect. The Government remained entitled to reformulate its policy on rational grounds, absent a specific assurance. The retrospectivity argument could not be distinguished from the reasoning in Solar Century, and was not arguable.
6. The article 1 of the First Protocol claim added nothing of substance. Any adverse effect on commercial interests was proportionate to the public interest in the policy. The court therefore refused permission to proceed on the merits. It was unnecessary to determine the alternative objection based on delay.

This was a first-instance renewed application for permission in the Administrative Court.

• Administrative Court: Langstaff J refused permission on the papers on 18 July 2016. Mr Justice Hickinbottom refused the renewed application and permission to proceed on the merits.