Lynn Ross v Secretary of State for Housing, Communities and Local Government & Anor

National policy on renewable-energy infrastructure should be read objectively, as policy rather than legislation, and with restraint before implying restrictions. EN-3 did not impliedly prohibit overplanting undertaken for site maximisation or to address the difference between laboratory and actual panel performance. Footnote 92 did not impose a separate threshold requirement that the extent of overplanting be reasonable; it required justification, compliance with the capacity threshold and assessment of the development’s full extent. Planning inspectors may determine applications on a reasonable worst-case basis despite unresolved details where sufficient information and practical constraints exist. They need address principal controversial issues, but need not give reasons for matters that are no longer materially disputed.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s decision allowing planning permission for a 49.9MW AC solar farm. The challenge concerned the interpretation and application of EN-3, the extent and justification of solar-panel overplanting, the adequacy of the worst-case assessment, clipping and foregone energy, the EIA screening opinion, and alleged failure to address effects on skylarks and yellowhammers. The inspector had considered the proposal against the relevant national policy statements because its capacity was close to the NSIP threshold. The central issues were whether the inspector had erred in law or acted irrationally in allowing the appeal.

1. Ground 1 failed. The inspector correctly interpreted EN-3. Section 2.10.55 and footnote 92 did not imply that only overplanting addressing module degradation was acceptable. The policy did not purport to regulate every form of overplanting, and overplanting for site maximisation and the effects of the STC rating was consistent with the policy objective of maximising renewable-energy generation.
2. Footnote 92 imposed no separate reasonableness test. The word reasonable described overplanting addressing module degradation. The operative requirements were that it could be justified, that the relevant NSIP capacity threshold was not exceeded, and that impacts were assessed on the basis of the development’s full extent.
3. The inspector had addressed justification and was entitled to conclude that the likely degree of overplanting did not justify dismissing the appeal. Whether less overplanting or less land could have achieved the export capacity was not, on these facts, an obviously material consideration requiring separate treatment. Galloway was confined to its particular facts and did not establish a general rule.
4. Grounds 3 and 5 failed. The inspector and the EIA screening officer were entitled to proceed with incomplete but sufficient information. The reasonable worst-case assessment was rationally open to the inspector, having regard to the indicative layout, conditions, practical spacing requirements and other physical constraints. The screening opinion was likewise rationally open to its author.
5. Grounds 4 and 6 failed. The inspector had understood clipping and foregone energy, which formed part of the assessment of overplanting rather than a separate obviously material consideration. The effects on skylarks and yellowhammers were not principal controversial issues by the time of the decision, so no separate reasons were required.
6. The claim was dismissed.