Durham County Council & Anor v Secretary of State for Levelling Up, Housing and Communities

The court may determine whether proposed development requires development consent under the Planning Act 2008, including where the question involves applying a statutory concept to undisputed facts. The statutory allocation of functions to the Secretary of State does not make that question exclusive to him. A generating station ordinarily means the place where electricity is generated. Substations and cables used to transmit and distribute electricity are generally ancillary infrastructure, not part of the generating station. Whether additional generating capacity is an extension depends on the facts, including separate development, metering, contractual arrangements, physical infrastructure and operational independence. Planning permission is not barred merely because development consent may also be required.

Durham County Council and Hartlepool Borough Council challenged the Secretary of State’s jurisdiction to determine five planning appeals concerning two proposed solar farms and associated cabling and substations. The claimants sought declarations that the projects, taken together, constituted a nationally significant infrastructure project under the Planning Act 2008, and that the Secretary of State therefore lacked jurisdiction under the Town and Country Planning Act 1990.

The court considered whether it should determine the development-consent issue, whether the projects formed an NSIP or an extension of an existing generating station, and whether the planning and development-consent regimes were mutually exclusive.

1. The court’s jurisdiction. The court could determine whether development consent was required. Sections 55(3)(c), 160 and 171 of the Planning Act 2008 did not allocate that question exclusively to the Secretary of State. The existence of criminal and injunctive remedies showed that courts might have to determine the threshold issue. Since the material facts were undisputed and the question involved applying a statutory concept rather than weighing planning merits, there was no institutional reason to decline relief.
2. Meaning of generating station. The court followed the reasoning in R (Redcar and Cleveland Borough Council) v Secretary of State for Business, Enterprise and Regulatory Reform [2008] EWHC 1847. A generating station is the place where electricity is generated. Cables and substations transmit and distribute electricity and are not themselves part of the generating station. They may instead constitute associated development under section 115 of the Planning Act 2008.
3. Extension. Additional generating capacity at a non-contiguous site could constitute an extension if the sites formed part of the same generating station. Here, however, the separate development history, separate distribution and connection agreements, separate metering, ability to operate independently, two physically distinct substations and the transmission function of the shared infrastructure pointed strongly to separate stations. Sheraton was therefore a new generating station, not an extension of Hulam, and development consent was not required.
4. Relationship between the regimes. Even if the projects had been an NSIP, sections 33(1), (2) and (4) of the Planning Act 2008 did not prohibit the grant of planning permission. They removed specified requirements and restricted specified statutory procedures. They did not make planning permission incapable of being granted. Planning permission could have practical effect for development below the statutory generating-capacity threshold.
5. The declarations were refused and the claim for judicial review was dismissed.