Solar Farms on Agricultural Land – part two

Solar Farms on Agricultural Land – part two

CategoryArticles Author Stephen Tromans KC, Philippa Jackson Date

In July’s PEP newsletter, we explored some of the issues relating to proposals to locate photovoltaic (“PV”) projects on best and most versatile agricultural land (“BMVAL”) and, in particular, whether applicants are required to undertake a sequential test to demonstrate the absence of suitable alternative sites on land of lower agricultural quality. While there is no policy requirement to undertake a formal sequential assessment, it is clear that the use of BMVAL will need to be justified by “the most compelling evidence”, in light of the ministerial statement on solar farms published by the former Secretary of State, Eric Pickles MP, on 25 March 2015.

A recent decision of a Planning Inspector, Paul K Jackson B Arch (Hons) RIBA, provides some useful guidance as to the kind of evidence which will be deemed to constitute the most compelling evidence, so as to justify the use of BMVAL. By a decision letter dated 9 September 2015, the Inspector allowed an appeal and granted planning permission for the erection of a 30MW solar photovoltaic facility on land at Rose and Crown Farm, Mill Road, Walpole St Andrew, Norfolk.[1] Stephen Tromans QC and Philippa Jackson represented the applicant, Elgin Energy (instructed by Phillips Planning Services) at the appeal.

The site consisted of 66 hectares of arable land in open countryside, which is currently used for arable crops including wheat, rapeseed and barley. The whole of the site is classified as Grade II agricultural land for the purposes of the Agricultural Land Classification (ALC).

The only issue between the Appellant and the Local Planning Authority was the effect of the proposal on best and most versatile agricultural land. Perhaps unusually for a scheme of this size, there was no objection on landscape, visual amenity, noise, heritage, highway safety, ecological or tourism grounds.

The Inspector noted that there was no prohibition on the use of any particular grade of agricultural land for solar panels. He identified the test as being that set out in the ministerial statement, namely “to provide ‘the most compelling evidence’ that use of BMV land is necessary and that poorer quality land is not available in each case.”

In support of its appeal, the developer relied upon a sequential analysis, which showed that there were severe grid restrictions in the wider area for a development of the scale proposed, and that the grid network was already operating at maximum capacity. Moreover the viability of the proposal (and indeed of any PV proposal) depended on the distance to the grid connection point, as the cost of the connecting cable relative to the power generated is a significant constraint.

In response to the Local Planning Authority’s argument that the Appellant had failed to consider the availability of smaller sites in its sequential analysis, the Inspector observed that, while a sequential analysis which took account of the potential availability of all schemes of all sizes on land of lower quality might be feasible for a local authority or group of local authorities, this had not been done. Moreover any such analysis would not, in any event, take account of the grid constraints.

The Inspector also described the Council’s inability to provide any collated information on PV projects and renewable energy as a whole in the Borough as “unhelpful”, as this meant that he was unable to assess the extent to which solar energy was being harnessed in King’s Lynn and West Norfolk. He noted, however, that it was a “notable feature of this part of East Anglia that there is almost no grade 4 land and very little grade 3” so that “given the practical need to limit the distance between generation capacity and the grid, the availability of poorer quality land suitable for PV… must be extremely constrained.”

In concluding that the most compelling evidence existed to justify the grant of permission, the Inspector also took into account the benefits of the scheme, including its continued use for grazing sheep, as well as the temporary (25 year) nature of the loss of arable use. He concluded that the land would not, therefore, be lost to agriculture. He also accepted the Appellant’s expert evidence concerning the productivity of the appeal site and the chemical characteristics of the soil, which meant that high value crops (such as potatoes or cauliflowers) could not be grown there, despite its Grade II classification. Although the temporary removal of arable production was a factor against the scheme, this was more than compensated for by the use of the site for the raising and fattening of sheep together with the production of electrical energy.

As this decision demonstrates, the availability of a grid connection (or lack thereof) will be fundamental to showing that the use of BMVAL is justified, since without a grid connection the PV proposal cannot go ahead. Moreover, applicants cannot be expected to discharge the burden of proving that no alternative sites of any size would be available on lower agricultural land, and this would therefore be for the LPA to demonstrate.

In addition, neither applicants nor LPAs should treat the ALC as the final word concerning the quality and productivity of the land in question. On the contrary, applicants would be well advised to obtain their own expert evidence on this issue, and to analyse the actual use of the land, including factors such as soil productivity and crop yields. As previous appeal decisions have also demonstrated, conditions requiring the use of the land for sheep grazing and the restoration of the land after a specified period (usually twenty five years) will help to tip the balance in favour of a grant of permission.

Finally, however, a note of caution: there appears to be a lack of consistency in the approach being adopted by different Inspectors in relation to this issue. We note, for example, the decision of an Inspector, Anne Jordan BA (Hons) MRTPI, dated 24 July 2015, concerning a 16ha site in Devon, where the Inspector accepted that it was reasonable of the Appellant to exclude land where no suitable grid connection was available but went on to reject the site analysis, in part on the basis that there was no “convincing evidence… to indicate why the proposal needs to be the size proposed.”[2] By contrast, in dismissing an appeal on 6 July 2015 (determined by written representations) concerning a PV proposal on 15ha of Grade 3a land in Leicestershire, Inspector David Rose held that the applicant’s sequential test was flawed, by searching only for sites with an adequate grid connection.

While a detailed analysis of these decisions is outside the scope of this article, the reasoning which led to the dismissal of these appeals appears to us to be problematic. It is to be hoped that this most recent decision will provide some much needed clarity as to the correct approach to considering applications for PV proposals on BMVAL land.

[1] Appeal ref: APP/V2635/W/14/3001281

[2] Appeal ref: APP/U1105/W/15/3007994

Stephen Tromans QC & Philippa Jackson.

This article is taken from the September 2015 Planning, Environment & Property Newsletter.

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