Low Carbon Solar Park 6 Limited, R (on the application of) v Secretary of State for Levelling Up Housing and Communities & Anor

Procedural fairness in a planning application is assessed in the statutory and factual context. A procedure designed for speed and written representations may permit late material, but it does not automatically require the decision-maker to admit it. The applicant must have a reasonable opportunity to address the gist of significant objections. Where heritage assets may be affected, their significance must first be understood before proposed mitigation or the planning balance can properly be assessed. An applicant cannot avoid that requirement by asserting that mitigation will prevent harm. Refusal to admit a late rebuttal will not be unfair where the applicant already understood the substance of the objections and had a sufficient opportunity to respond during the representation period.

The claimant applied directly to the Secretary of State under section 62A of the Town and Country Planning Act 1990 for permission to construct and operate a solar park. The application was determined by written representations under the statutory section 62A procedure.

After the representation period had ended, the claimant submitted a lengthy rebuttal addressing objections, including archaeological concerns raised by Essex County Council and Historic England. The inspector exercised the discretion under regulation 6(2)(b) of the Town and Country Planning (Section 62A Applications) Written Representations and Miscellaneous Provisions) Regulations 2013 to disregard it. Planning permission was refused, principally including because the significance of potential archaeological remains had not been established.

The central issue was whether refusing to admit the rebuttal was procedurally unfair or involved failure to consider an obviously material matter.

1. The claim was dismissed. Procedural fairness is context-dependent. The relevant context included the statutory section 62A scheme, its accelerated written-representation procedure, the applicant’s responsibility to identify matters likely to weigh against the application, and the discretion to admit late material.

2. The claimant understood the gist of the archaeological objections before submitting the section 62A application. The earlier application, the archaeological survey, and the responses from Essex County Council and Historic England made clear that targeted field evaluation was sought before determination. The issue was not materially a new or unforeseeable technical case.

3. The requirement to identify the significance of potential heritage assets preceded assessment of mitigation. It was legally incorrect to contend that significance need not be established because an above-ground foundation design or a planning condition could avoid harm. Without an understanding of significance, the decision-maker could not assess whether proposed mitigation was appropriate or conduct the balancing exercise required by paragraphs 201 and 202 of the Framework.

4. The claimant had an adequate opportunity to address the archaeological issue before the representation period ended and before the inspector’s decision. The inspector was therefore entitled, in the circumstances, to disregard the late rebuttal. The correspondence from PINS did not create an unrestricted entitlement to submit further representations.

5. Even if the rebuttal had been admitted, the inspector would have reached the same conclusion. The rebuttal approached the issue in the wrong order and did not cure the absence of evidence establishing the significance of the archaeological assets.

Any consequential matters not agreed were to be addressed by written submissions, with an agreed draft order filed within 14 days.