Recent solar DCO decisions

Overview

In his first week in office, the Secretary of State for Energy Security and Net Zero (SoS) granted development consent for three nationally significant solar farm projects in England: Sunnica Energy Farm, Mallard Pass Solar Farm, and Gate Burton Energy Park. Together, these projects are expected to generate around 1.3GW of renewable energy.

These decisions will be welcomed by those working in the solar industry as they follow a period of uncertainty caused by delays to decision making on solar NSIPs by the former SoS, driven by political concerns around large scale solar projects being granted consent in rural Conservative constituencies. Notably, the decision on the Sunnica Energy Farm was delayed five times, for a total of 10 months.

These three decisions should be regarded as a sign that the UK government is committed to delivering major onshore renewable energy projects, without politics being a potential blocker and source of delay and uncertainty. They also provide important clarification of how the SoS will apply the policy tests set out in the Overarching National Policy Statement for Energy (EN-1) for solar, particularly in relation to siting on "best and most versatile" agricultural land, landscape and visual impacts, food security and cumulative effects.

Introduction

On 12 July 2024, the SoS, Ed Miliband, granted development consent for three nationally significant solar farm projects in England. In one day, this doubled the number of development consent orders (DCOs) that have been granted for solar and battery energy storage projects. The three projects are the Sunnica Energy Farm, Mallard Pass Solar Farm, and Gate Burton Energy Park.

Together, the three projects are anticipated to generate around 1.3GW of renewable energy, a step towards the Government's target of having 70GW of installed solar capacity by 2035. 1.3GW is enough electricity to power over 400,000 homes.

Below I have summarised the projects and the important takeaways from each of the decision letters, which will be relevant to developers of solar and battery storage projects at earlier stages in the DCO process. As an overall observation, though, these decisions set a precedent about the way that the new SoS will apply the relevant policy tests for low carbon infrastructure developments set out in the Overarching National Policy Statement for Energy (EN-1) (albeit that these were "important and relevant" policies for these applications, given each application was made before the current EN-1 was designated in January 2024). In all three decision letters the SoS recognises the "urgent need" for each respective project as part of the decarbonisation of the UK's energy system, and in each case ascribes this need substantial positive weight in the planning balance. They also provide important and helpful clarification of how the SoS will apply the policy tests set out in EN-1 for solar, particularly in relation to siting on "best and most versatile" agricultural land, landscape and visual impacts, food security and cumulative effects.

These decisions will be welcomed by those working in the solar industry (us and our clients included!) as they follow a period of uncertainty caused by delays to decision making on solar NSIPs by the former SoS, which were largely driven by political concerns around large scale solar projects being granted consent in Conservative constituencies. Uncertainty was also recently caused by the Written Ministerial Statement in May, which we commented on here. These three decisions, granted in the first week the new Government was in office, should be regarded as a sign that the UK government is committed to the delivery of major onshore renewable energy projects to meet its net zero targets, without politics being a potential blocker and source of delay and uncertainty.

Sunnica Energy Farm

Key facts:

• Sunnica Energy Farm is spread across different sites in East Cambridgeshire and West Suffolk, near Newmarket, totalling c 2,500 acres. The grid connection point is Burwell substation in Cambridgeshire. The Applicant was Sunnica Limited.
• The project comprises ground mounted solar photovoltaic (PV) panel arrays and a battery energy storage system (BESS). The output capacity is anticipated to be 500MW, which is enough to power 172,000 homes.
• The application was submitted on 18 November 2021, and accepted for examination on 16 December 2021. It was examined between September 2022 and March 2023. The original decision date was 28 September 2023, however, the (then) SoS extended the statutory deadline for a decision a full four times to ask for additional information from the Applicant and interested parties, before the pre-election period extended the decision period for a fifth time.
• The delays were a result of the SoS requesting further information from the Applicant and Interested Parties three times, on matters including mitigation for landscape and visual effects, stone curlew mitigation and BESS design. The additional information received assisted the SoS in providing robust reasoning for granting consent, against the recommendation of the ExA. In this context, perhaps the delay seems more palatable.

The decision letter (DL) is available here. Key points to note are:

• The Examining Authority (ExA) (comprising two panel members) recommended that the SoS refuse the application. This was on the basis of harm that would be caused to the setting of the Chippenham Park Registered Park and Garden, the extensive adverse impact on the landscape setting of and views from the Limekilns (a non-designated but an especially valued landscape), and the design of the Sunnica West A site. The ExA considered these elements to be in conflict with local plan policies on landscape and heritage assets and that the combination of these harms, taken together with the other harms identified, clearly outweighed the benefits of the project (DL, paragraph 7.2).
• The SoS disagreed with the ExA, and ascribed a lesser weight to these harms and a greater weight to the benefits of the project. He disagreed that the project conflicted in principle with national or local planning policy.
• Impacts on the horse racing industry relating to construction traffic impacts, socio-economic impacts and glint and glare from the panels potentially spooking horses received a lot of attention during the examination (I think this may be the first ever examination to receive opinions from horse behavioural specialists…!). The ExA thought that there could be significant impacts due to glint and glare which had not been adequately assessed. The SoS disagreed and was happy that the Applicant's assessment adequately assessed and mitigated for the effects of glint and glare (DL, paragraph 7.12).
• Mitigation proposals for effects on stone curlew habitats also received a lot of attention. The ExA recommended that the provision of replacement habitat for foraging and breeding was inadequate or unsuitable due to potential management issues, however, Natural England were satisfied with the proposals. The SoS saw no reason to disagree with Natural England's conclusion, as the relevant strategic nature conservation body (DL, paragraph 7.13).
• The SoS also disagreed with the ExA's conclusions on use of best and most versatile land and farming circumstances (DL, paragraph 7.17), and ascribed a lower weight of harm to the visual impacts of the project than the ExA did, noting that paragraph 5.9.8 of NPS EN-1 recognises that virtually all energy NSIPs will have landscape and visual effects. He was satisfied that the Applicant had designed the project carefully to reduce these impacts (DL, paragraph 7.9).
• An alternative proposal, referred to as the Suffolk County Council Alternative proposal (the SCC AP), was put forward as an alternative to the application by several interested parties, including the host local authorities. This proposed the removal of a number of land parcels from the project, to reduce effects on visual amenity and nesting sites for protected stone curlew. The Applicant rejected the SCC AP on the grounds that removing these parcels of land would significantly reduce the renewable generating capacity of the project and thus reduce its benefits. The Secretary of State agreed: he rejected that the SCC AP represented a "reasonable alternative" (DL, paragraph 4.12).

Mallard Pass Solar Farm

Key facts:

• Mallard Pass Solar Farm will be located on agricultural land either side of the East Coast Main Line near Essendine, partly situated in South Kesteven, Lincolnshire, and partly in Rutland. The Applicant was Mallard Pass Solar Farm Limited. (Pub quiz fact: the name Mallard Pass is a reference to the Mallard train, not the duck breed.)
• The project comprises ground mounted PV panel arrays, with an output capacity of 350MW, which is enough to power 92,000 homes (notably, no BESS element). The site is close to the National Grid's Ryhall subststion, which is where the electricity generated from the proposed solar farm will connect to the grid.
• The application was submitted on 24 November 2022, and accepted for examination on 21 December 2022. It was examined between May and November 2023. The original decision date was 16 May 2024, however, the (then) SoS extended the statutory deadline to 13 June 2024, which was then extended again due to the pre-election period. A far less substantial delay than the Sunnica decision, but a delay nonetheless.

The decision letter (DL) is available here. Key points to note are:

• The ExA (comprising two panel members) recommended the application be made, and the SoS agreed. The application was, however, robustly opposed by the local community (through the Mallard Pass Action Group (MPAG)). Back in March, local MP Alicia Kearns presented a petition to Parliament stating that the project should be refused due to its scale, impact on community, loss of agricultural land, impact on landscape and biodiversity and environment, damage to historical environment, and the risk of solar panels would be produced by forced labour in China.
• The proposed site contains a relatively high proportion of "best and most versatile land", with the Applicant's agricultural land classifications surveys showing 11.7% Grade 2 land and 30.5% Grade 3a land within the Order Limits (DL, paragraph 4.72). MPAG argued that the Applicant's surveys were not adequate and commissioned its own soil surveys which concluded that over 50% of the site was BMV land. The ExA and SoS were, however, satisfied that the Applicant's soil surveys were sufficiently detailed (DL, paragraph 4.84 and 4.101).
• On design, the SoS was happy with the approach that the design evolution had led to the removal of all fields that were Grade 2 only, but that fields with a mix of grading were retained in the scheme, noting that further avoidance of BMV land would have led to a longer cable route to Ryhall substation (DL, paragraph 4.99). He therefore concluded that the use of BMV land has been justified (DL, paragraph 4.103) in accordance with paragraph 5.11.34 of EN-1. This is a helpful statement of how the policy in EN-1 relating to BMV land is to be applied, making clear that there are circumstances where siting on Grade 2 land is acceptable.
• MPAG and Lincolnshire County Council, amongst others, raised concerns that a smaller site had not been considered. The SoS also agreed with the ExA's conclusions that the lack of consideration of smaller sites should not weigh against the project and was content that the Applicant's site selection process was in accordance with EN-1 (DL, paragraph 4.66).
• A cumulative assessment considered possible effects of other solar projects across Lincolnshire and Rutland, which concluded these projects would cumulatively affect 0.5% of the BMV land across the counties. The SoS concluded (in agreement with the ExA) that the effect on national food production was "negligible" (DL, paragraph 4.100).
• In respect of concerns about the supply chain for PV panels, the SoS concluded that he did not consider ethical procurement to be a relevant planning matter in itself, and therefore did not ascribe this any weight in the planning balance (DL, paragraphs 4.107 and 7.10).

Gate Burton Energy Park

Key facts:

• Gate Burton Energy Park is proposed to be built on land near Gate Burton in Lincolnshire. The electricity generated will be exported via a connection into the existing national electricity transmission system at National Grid's Cottam substation in Nottinghamshire. The Applicant was Gate Burton Energy Park Ltd, part of Low Carbon (one of our clients).
• The project comprises ground mounted solar photovoltaic (PV) panel arrays and a battery energy storage system (BESS). The output capacity is anticipated to be 500MW, which is enough to power 160,000 homes. (Note this is lower than the figures given for Sunnica for the same output capacity – are homes bigger / more energy intensive in Lincolnshire than they are in Cambridgeshire?)
• The application was submitted on 27 January 2023, and accepted for examination on 22 February 2023. It was examined between July 2023 and January 2024. The original decision date of 4 July 2024 had to be extended due to the pre-election period. This decision was therefore only delayed by six working days – compare that to Sunnica's delay of almost 10 months.

The decision letter (DL) is available here. Key points to note are:

• The SoS agreed with the ExA's (comprised of a single panel member) recommendation to grant development consent.

• Cumulative effects were an issue that received attention at Examination from local objectors. The Gate Burton site is located in close proximity to a number of other solar NSIPs – primarily Cottam Solar Project, West Burton Solar Project and Tillbridge Solar Project, all of which share part of a cable route corridor to their respective grid connection points (which the SoS welcomed in paragraph 4.177 of the DL).
• The SoS agreed with the ExA that the cumulative effects of the project in conjunction with the other local projects leads to a moderate adverse landscape effect and that material harm to the landscape character would result, and ascribed this a moderate negative weight. The SoS reached similar conclusions with regard to the cumulative effects on land use and agriculture (DL, paragraph 4.178) and human health and wellbeing (DL, paragraph 4.111).
• The SoS also found that the Applicant's comparison to a counterfactual CCGT facility was an inappropriate baseline for the assessment of climate change impacts, noting that 2011 NPS EN-1 requires all combustion power stations with a capacity over 300MW to be constructed Carbon Capture Ready. Nonetheless, he was satisfied that the project would result in considerable carbon savings in line with the trajectory to net zero (DL, paragraph 4.59).

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