In the case of Drayton Manor Farms Ltd v Stratford-Upon-Avon District Council [2025] EWHC 775 (Admin), the claimant, Drayton Manor Farms Ltd, sought clarity as to whether the solar farm for which it already had received planning permission from the local planning authority in 2023 also required development consent under section 31 of the Planning Act 2008 (2008 Act).
The claimant has been granted planning permission to develop a 32MW solar farm at Drayton Manor Farm, Alcester Road, Stratford-Upon-Avon. This development included changing the use of two existing dwellings into a solar control building and associated works.
The contention arose in considering whether the development permitted under the 2023 planning permission would have the effect of creating an extension to a 45MW adjacent existing solar farm, thereby creating a nationally significant infrastructure project (NSIP), defined under section 14(1)(a) of the 2008 Act.
What caused the confusion?
The 2023 planning permission included a series of notes which, in summary, stated that the application was an extension of the existing project and that it may be an NSIP due to the combined generating capacity when taken together with the existing development.
The Council, asserting that it was capable of granting planning permission without confirming whether a development consent order was also required under the 2008 Act, confirmed that the applicant would be “proceeding at its own risk if it did not apply for a DCO and proceeding without a DCO could be unlawful under section 160 of the 2008 Act” (potentially committing a criminal offence for carrying out a development for which development consent was required).
The claimant believed that the planning permission created uncertainty as to whether carrying out the development for which it now had permission, would involve committing a crime – as such, it sought a declaration from the court that the proposed development was (a) not an extension of the existing project and (b) did not require development consent.
Development Consent Thresholds
Presently, a solar power project with a generating capacity of under 50MW is capable of being granted planning permission by a local planning authority under the Town and Country Planning Act 1990.
15(2)(c) of the 2008 Act confirms that a generating station capable of generating more than 50MW falls into the NSIP regime and subsequently requires development consent.
Over the last decade, solar projects capable of generating up to 49.9MW have filled the project pipeline – avoiding engagement with the development consent process. The NSIP regime has been seen by developers of generation projects as administratively burdensome and costly, and as such small and medium sized projects have dominated the landscape. In December 2024, Solar Energy UK confirmed that not a single project between 50MW and 99.9MW had been proposed in England, whereas there were 174 projects either built or in the pipeline at 49.9MW.
As such, the significance of the project falling into either the NSIP or TCPA regime was, as Mould J confirmed, legal and practical. If the proposed solar farm was considered to be an extension of the existing, and the combined generating capacity of that project would exceed the 50MW threshold, the claimant would have to begin the long process of consultation and extended application under the 2008 Act – with no guarantee that it would be granted development consent and whilst firmly of the belief that development consent was not needed.
Relationship to the existing project
In considering whether the 2023 planning permission would be an extension of the adjacent project, Mould J considered:
- that the solar panels authorised by the 2023 planning permission would be situated on adjacent land to the existing solar farm;
- that the proposed and existing developments were not conceived as one project but would be developed separately – demonstrated by having received permission over seven years apart;
- that the two projects would have separate distribution and connection agreements, lease agreements, and other commercial arrangements; and
- the evidence of an electrical engineer and infrastructure consultant who confirmed that (a) the existing scheme comprised of nine separate solar farms which were all required to be separate in order to receive a government subsidy, (b) the 2023 farm will have no dependencies or overlap with the existing farms, and (c) the sole common point between the existing solar farms and the new will be the distribution network operator’s licenced network.
Decision
Mould J considered and followed Durham, a case that also considered whether a proposed development was correctly to be considered as an extension to a generating station within sections 14 and 15 of the 2008 Act, in determining that it was appropriate for him to make a judgement on whether the development was an extension and consequently required development consent.
The Judge found the evidence of the electrical engineer to be wholly persuasive and confirmed that there was very little, if any, interdependence between the existing and proposed developments.
As such, he made a declaratory statement as to the legal rights conferred by the 2023 planning permission – it being in the public interest to resolve any uncertainty as to whether the development could be lawfully delivered under that permission. Mould J confirmed that indeed it could.
One Eye on the Horizon
This is a case that may rear its head in the future as renewable energy developers look to enhance, modify, or grow existing generation sites. This is particularly poignant as developers are being encouraged to utilise sites for the production of more than one renewable energy source to encourage efficient land use.
As part of the government’s mission to reform the NSIP regime, on 10 March 2025 it laid the draft Infrastructure Planning (Onshore Wind and Solar Generation) Order 2025. Article 3 of the Order will amend section 15(2) of the 2008 Act (from 31 December 2025), altering the threshold capacity for onshore generation (at which the projects will become NSIPs) from 50MW to 100MW.
It is hoped that this will encourage more large projects to come forwards (>50MW) across England and Wales. No doubt the renewables planning pipeline will once again become filled with developments that fall just shy of the NSIP threshold (~99.9MW) and the TCPA v 2008 Act tightrope will have just moved further off the ground, rather than being taken away.
This will also have implications for already stretched local planning authorities whose responsibilities will now be extended to deal with generation projects on a far greater scale (i.e., all those under 100MW capacity). We are expecting NESO to deliver a strategic special energy plan in 2026 that will assist local planning authorities in their decision making, it is likely that more guidance will be needed to deal with applications of this scale.
