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Inconsistent Planning Permissions – Guideline Ruling Focuses on Solar Farm

It may seem counterintuitive, but there is nothing wrong in principle with a council granting two planning permissions that are mutually inconsistent. The High Court made that point in upholding planning consent for a solar electricity substation.

A developer was granted permission in 2017 to develop a 72-hectare solar energy farm in the countryside, together with associated equipment and a 33kV substation to house switching gear. Crucially, a condition attached to the permission required that the development was not to be carried out other than in complete accordance with approved plans, which showed the substation located to the west of some overhead power lines.

It was, however, subsequently realised that the proposed substation would not be capable of connecting the farm to the grid via the power lines. In response to that difficulty, a further planning application was made to construct an enlarged 132kV substation in a new location to the east of the power lines. The local authority granted planning permission for that development in 2021.

In mounting a judicial review challenge to the 2021 permission, a local resident argued that the council erred in having no regard to the fact that it was inconsistent with the 2017 permission and could not be implemented without breaching planning control. That was because, if the 2021 permission were implemented, the project authorised by the 2017 permission – on which work had already begun – could not be carried out in complete compliance with the approved plans.

Rejecting her arguments, however, the Court noted that there is, in principle, nothing objectionable about a local authority granting two permissions that are inconsistent with each other. Such a course enables developers to choose which development to carry out. It was not inevitable that the developer would implement the 2021 permission, thus breaching planning control. There were other options available, including a fresh application for a composite permission to permit the solar park and substation as currently proposed.

The Court acknowledged that it might well be that the potential difficulties arising from the incompatibility of the two permissions were simply not considered by the developer before it submitted the 2021 planning application. It was, however, unsurprising that planning a project of such magnitude should be an evolving process.

The incompatibility between the two permissions was a matter for the developer to resolve and it was not something the council was compelled to grapple with or speculate upon. It was for the developer to decide how to complete the solar farm in a way that would not involve a breach of planning control.

31 May 2022
Last Updated
27 June 2022