Round 2 – same boxers, same rules


Ms Laura Gardener
Case officer NSDC
Proposed solar farm construction off Weston Road, Egmanton
Reference: 14/00975/FULM

This application is a re-submission of 13/01422 with, as far as we can tell, no change to the scheme details. As such, our five papers relating to the earlier scheme are still relevant. The content of these earlier papers (the last one dated 1st May 2014) is attached to this our sixth paper as a single document. All references in those papers to 13/01422 should now be read as 14/00975.

The residents of Egmanton Parish met on 26th June 2014 to consider the re-submitted planning application. The result of the vote held in a packed village hall was 36 against, 3 in favour and 1 abstention. The main points raised at the meeting on 26th June 2014 against the proposal, and which must be added to all the points presented previously in opposing the earlier submission, are set out below.

Executive summary
Legal advice indicates that basing the new application on a single and old piece of case law is without merit. If this matter reaches Court, we believe it will fail.
According to The Localism Act 2011, there must be prior consultation before this application can be made.
The application form contains factual errors.
The principles of development relied on by the applicant are out of date.

Current planning guidance and Rhodes v Minister of Housing and Local Government (1963)
So far as we can tell, the sole justification for re-submission of the solar farm application relies on the Case Law quoted in the above heading. The Judge – Paull J. ruled that it was not for the Minister to have to seek out and consider all alternatives; it was not appropriate to refuse the application merely because there might be more suitable sites elsewhere which had not, at the time of the enquiry, been fully investigated. TPS also refer to NSDC’s solicitor advising the planning committee regarding the lawfulness of refusal and in so doing relying on the same judgement.

We have researched “Rhodes” thoroughly. It concerns what is now East Midlands Airport. During the Second World War, the land in question was used as an airstrip for the war effort. After the war, the site was taken over by a tenant farmer (Lockington Grange Farm) who spent much capital and skill in creating a successful farming business. The Local Authority wanted to obtain the land and allow it to be developed as an airport. This would be of public benefit both locally, nationally and internationally. The judge held that whether consideration of an alternative site has to be taken into account depends on the nature of the application. He said that if an objector could show that within a few miles of the land in question there is another site equal in all respects to the site in question and where it would be unnecessary to disturb anyone …. the fact would clearly be a material consideration and should be taken into account before a final decision is made. What weight should be given however is a matter for the minister or the local authority. All the minister/LA has to do is consider the evidence, nothing more. It is not for them to “rout round” for alternative sites.

In all the circumstances, we felt it wise to seek legal opinion and the following is the advice received:-
“New Planning Practice Guidance published by the Government in March 2014 must be followed by Planning Committees.
Nick Boyles in a Ministerial statement to parliament on 6th March 2014 introducing the Governments policy in these maters, stated amongst other things that
– he stresses the importance of bringing Brownfield land into use and makes it clear that authorities do not have to allocate a site on the basis of maximum possible return for the landowner and developer.
– in relation to solar farms, he said visual impact is a particular factor for consideration.
All planning applications must now be read taking into account the Guidance issued in March 2014. Although it doesn’t change the black letter law, both the Secretary of State and the Courts must be mindful of the government guidance when making decisions now the guidance has been published. As such old case law may be distinguished from any current matters because historically the new guidance did not have to be followed or taken into account and had it been outcomes may have been different.
In this case it appears:
– From the applicants supplemental statement that alternative sites for the solar farm have been arbitrarily rejected without actually considering the criteria used by the planners. As Nick Boyle says in his statement to Parliament “maximum possible return” is not an issue for the planners.
– the wholesale rejection of alternative sites, within a very short space of time suggests the desperation and determination of the applicants to prove the Greenfield Egmanton site is the only one for them is manipulative. Particularly so as they don’t adequately justify their objections to the other sites using the new government guidelines”.

We contend that “Rhodes” is irrelevant to the current application since:-
• New Planning Practice Guidance must be followed
• Neither the minister or the local authority has been asked to seek out and consider alternative sites. We, as opponents, did this work in order to encourage the developer to comply with latest central government guidance on not using Greenfield sites when alternative Brownfield ones are available
• Finding an alternative site for what was to be an airport serving the community is a very different proposition from finding an alternative for a 60 acre field.

On this basis, the planning committee was within its right to refuse planning permission on the first application. We have asked the Secretary of State to call in the application.

Lack of prior consultation
Planning Application 14/00975/FULM is a new application. It’s type and scale falls within the Planning Act 2008 as amended by the Localism Act 2011. As such there has to be prior consultation with the local community. Our understanding is that until this process has been satisfactorily completed, the application cannot be considered by the Planning Committee.

Factual errors on the application form 04:6060
Whilst it may be true that the new agents, TPS, have not sought assistance or prior advice from the local authority about this application (Question 5 is answered “No”), we would remind the planning committee members that the consultants Carter Jonas have had at least one meeting with planning officials on the initial submission. A letter from Carter Jonas dated 25th March 2014 to Laura Garnener starts with “Further to our meeting yesterday with Matt Lamb”.
Question 21 asks “What is the site area?” The stated area of 09.67 hectares is wrong. The area is 23.6 hectares as stated in para 3.5 of the planning application – page 11 (58 acres) and this is net of the area set aside for use by the Newark Internal Drainage Board.
Flood risk assessment
The re-submitted planning application includes a paper from Carter Jonas and states “there will not be an increase in runoff from the site”. We would respectfully inform the planning committee that Mr David Sisson, Engineer to the Newark Internal Drainage Board wrote to the Development Business Unit of NSDC on 1st May 2014, giving the results of the modelling exercise carried out by independent consultants and specially commissioned to assess this aspect in addition to their current flood alleviation project for Egmanton Village (severely flooded in June 2007). This document does not appear to be on the planning website. It contains the following:- “The effect upstream in Egmanton has been shown to be minimal, with in channel water levels deviating by only millimetres upstream of the solar farm site, which can be considered within the tolerance of the hydraulic model”. So, whilst the effect may be minimal, it does exist.

TPS Planning Statement – May 2014 – Planning history, para 2.10
“The objections made by the Parish Council have been recognised, but were weighed in balance by the Planning Officer as material considerations. It was still found that: whilst I note that the planning concerns of the Parish Council represent a significant material planning consideration, so too does equally the fact that there remains no objections with the principle of development, and its visual, ecological, amenity, and highway impacts. On this basis the recommendation for approval remains, subject to appropriate worded conditions”.

The residents of Egmanton know that the hitherto principles of development referred to, and thus weighed in the balance, no longer apply. As the planning committee will be aware, the first two bullet points of the new guidance say that the particular factors a local planning authority will need to consider include:-
• Encouraging the effective use of land by focusing large scale solar farms on previously developed and non-agricultural land, provided it is not of high environmental value
• Where a proposal involves Greenfield land, whether (1) the proposed use of any agricultural land has been shown to be necessary and poorer quality land has been used in preference to higher quality land; and (2) the proposal allows for continued agricultural use where applicable and/or encourages biodiversity improvements around arrays.
In addition and relevant to Egmanton is bullet point No 7:-
• Great care should be taken to ensure heritage assets are conserved in a manner appropriate to their significance, including the impact of proposals on views important to their setting. As the significance of a heritage asset derives not only from physical presence, but also from its setting, careful consideration should be given to the impact of large scale solar farms on such assets. Depending on their scale, design and prominence, a large scale solar farm within the setting of a heritage asset may cause substantial harm to the significance of the asset.

This additional planning guidance asks the local planning authority to refer specifically to a speech by the Minister of Energy and Climate Change, the Rt Hon Gregory Barker MP, to the solar PV industry on 25th April 2013.

The very first point made by the minister in that speech was:-
“Solar is rightly popular. But if we aren’t careful, or if the sector expands inappropriately, that invaluable popular public support will slip through our fingers. We don’t want solar to become a bone of public contention like onshore wind. And that is my key message today. Solar is a genuinely exciting energy of the future. It is coming of age and we want to see a lot, lot more. But not at any cost….. not in any place…. not if it rides roughshod over the views of local communities. As we take solar to the next level, we must be thoughtful, sensitive to public opinion, and mindful of the wider environment and visual impacts”.

Department for Communities and Local Government
As the planning committee will also be aware, the RH Eric Pickles MP has just refused permission for two solar farms on Greenfield sites in Sussex. One slightly larger (Lark Energy – 100,000-panel at Ellough, later reduced to 60,000) and one smaller than that proposed for Egmanton. On Friday 20th June 2014, Mr Justice Lindblom thought this refusal caused the developer “substantial prejudice” and sent the plan back to Mr Pickes for a final decision. Confused? We are too.

NCC Nature Conservation and Weston PC
We wholeheartedly agree with the points raised by NCC Nature Conservation and especially emphasise the presence of water voles in the locality. We think much weight should be given to objections raised by our neighbouring PC of Weston.

Delay in publishing the appeal
Only at the very last minute, 26th June 2014, has ROC Energy’s appeal been published. This appeal seems to be dated 8th June 2014. What is the reason for the delay? How is it possible to both appeal an earlier application and submit a new but identical one at the same time?

J G Smith – honorary treasurer – Egmanton Parish Meeting – 30 June 2014