Durham County Council & Anor v Secretary of State for Levelling Up, Housing and Communities

Part III of the TCPA 1990 concerns control over “development”, which means “the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land”, except where the context otherwise requires and subject to ss. 55(2)-(5): s. 55(1).

Section 57 provides as follows:

“(1)

Subject to the following provisions of this section, planning permission is required for the carrying out of any development of land.

(1A) Subsection (1) is subject to section 33(1) of the Planning Act 2008 (exclusion of requirement for planning permission etc. for development for which development consent required).”

Section 78(1) confers on an applicant a right of appeal to the Secretary of State against (inter alia) a refusal of planning permission by a local planning authority. Section 79 empowers the Secretary of State to allow or dismiss the appeal, or reverse or vary any part of the decision of the local planning authority and to deal with the application as if it had been made to him in the first instance. Section 79(6) provides as follows:

“(6)

If, before or during the determination of such an appeal in respect of an application for planning permission to develop land, the Secretary of State forms the opinion that, having regard to the provisions of sections 70 and 72(1)… planning permission for that development—

(a)

could not have been granted by the local planning authority; or

(b)

could not have been granted otherwise than subject to the conditions imposed,

he may decline to determine the appeal or to proceed with the determination.”

Section 336(1) provides that “planning permission” (except in so far as the context otherwise requires and subject to the following provisions of s. 336) “means permission under Part III of section 239 but does not include permission in principle”.

Part 3 of the PA 2008 created a new development consent regime for major projects in the fields of energy, transport, water, waste water and waste. Under this regime, “development consent” is required “to the extent that the development is or forms part of a nationally significant infrastructure project”: s. 31. “Development” has the same meaning as in the TCPA 1990, subject to s. 32(2) and (3) (which are not material here): s. 32(1). An NSIP is defined in s. 14 as a project which consists of any of a list of specified kinds of development, including “(a) the construction or extension of a generating station”. However, this is subject to s. 15, which provides insofar as material as follows:

“(1)

The construction or extension of a generating station is within section 14(1)(a) only if the generating station is or (when constructed or extended) is expected to be within subsection (2), (3), (3A) or (3B).

(2)

A generating station is within this subsection if—

(a)

it is in England,

(aa) it does not generate electricity from wind,

(b)

it is not an offshore generating station, and

(c)

its capacity is more than 50 megawatts.”

(Subsections (3), (3A) and (3B) are not material.)

Section 235(1) (Interpretation) provides materially that:

“‘extension’, in relation to a generating station, has the meaning given by section 36(9) of the Electricity Act 1989 (and ‘extend’ must be read accordingly);

…

‘generating station’ has the same meaning as in Part 1 of the Electricity Act 1989 (see section 64(1) of that Act)”

Section 33 provides insofar as material as follows:

“(1)

To the extent that development consent is required for development, none of the following is required to be obtained for the development or given in relation to it—

(a)

planning permission;

…

(d)

authorisation by an order under section 4(1) of the Gas Act 1965 (c. 36) (storage of gas in underground strata)…

(2)

To the extent that development consent is required for development, the development may not be authorised by any of the following—

…

(b)

an order under section 4(1) of the Gas Act 1965 (order authorising storage of gas in underground strata);

…

…

(4)

If development consent is required for the construction, improvement or alteration of a highway, none of the following may be made or confirmed in relation to the highway or in connection with the construction, improvement or alteration of the highway…”

An order for development consent can only be made if an application is made to the Secretary of State: s. 37(1) and (2).

Section 51 empowers the Secretary of State to make regulations about the giving of advice about applying for an order for development consent or making representations about such an application.

Where an application purporting to be an application for development consent is made, the Secretary of State must within 28 days decide whether or not to accept it: s. 55(2). Section 55(3) provides:

“(3)

The Secretary of State may accept the application only if the Secretary of State concludes—

(a)

that it is an application for an order granting development consent,

(c)

that development consent is required for any of the development to which the application relates,

(e)

that the applicant has, in relation to a proposed application that has become the application, complied with Chapter 2 of Part 5 (pre-application procedure) and

(f)

that the application (including accompaniments) is of a standard that the Secretary of State considers satisfactory.”

(Sub-paragraphs (b) and (d) were repealed by the Localism Act 2011.)

Section 120 provides that an order granting development consent may impose requirements in connection with the development, which include but are not limited to requirements corresponding to conditions which could have been imposed on the grant of any permission, consent or authorisation which, but for s. 33(1) would have been required for the development.

Section 160 makes it an offence to carry out or cause to be carried out development for which development consent is required at a time when no development consent is in force in respect of the development. Section 161 makes it an offence to carry out or cause to be carried out development in breach of the terms of an order granting development consent or otherwise fail to comply with the terms of such an order.

Section 171 empowers a local planning authority to apply to the High Court or a county court for an injunction “if it considers it necessary or expedient for any actual or apprehended prohibited activity to be restrained by injunction”. “Prohibited activity” means activity that constitutes an offence under ss. 160 or 161 in relation to land in the area of the local planning authority.

Section 36(1) of the Electricity Act 1989 (“the EA 1989”) requires consent from the appropriate authority for the construction or extension of a generating station. However, by s. 36(1A), this is subject to s. 33(1) of the PA 2008. Section 36(9) provides:

“In this Part ‘extension’, in relation to a generating station, includes the use by the person operating the station of any land or area of waters (wherever situated) for a purpose directly related to the generation of electricity by that station and ‘extend’ shall be construed accordingly.”

“Generating station” is not defined save where it is “wholly or mainly driven by water”. In that case, it “includes all structures and works for holding or channelling water for the generation of electricity by that station”: s. 64(1).

Mr Kohli submits that under s. 55(3)(c) of the PA 2008 the function of deciding whether the applications, taken together, constitute an NSIP has been allocated by Parliament to the Secretary of State as primary decision-maker. The question whether the applications, taken together, constitute an extension of the already permitted Hulam generating station (rather than a separate one) is a question of mixed fact and law which turns on the exercise of planning judgment on the basis of, inter alia, technical evidence. He relies on R (Hammerton) v London Underground Ltd [2022] EWHC 2307 (Admin), [2003] JPL 984, where Ouseley J said that judicial review of London Underground’s decision to refuse an undertaking not to demolish a goods yard was inappropriate, because it was for the local planning authority to decide whether to enforce against it – and the court should not usurp the local authority’s planning judgment: see at [184]-[189]. In these circumstances, it would be inappropriate for the court, in the exercise of its discretion, to grant a declaration.

In my judgment, the Hammerton case does not assist. The reason why the relief sought there was inappropriate was that it would have stopped the developer from proceeding when there was no legal prohibition on it doing so. Development in breach of planning control under the TCCPA 1990 is not an offence. It is up to the local planning authority to decide, in the exercise of its planning judgment, whether to enforce. It was inappropriate for the court to grant at the suit of a private individual relief which was tantamount to an injunction to prevent the carrying out of development when the local planning authority had not decided that it was “expedient” to take enforcement action: see at [184]-[185].

Mr Kohli’s argument depends critically on the proposition that the PA 2008 allocates the decision whether a project requires development consent exclusively to the Secretary of State. Certainly, s. 55(3)(c) of the PA 2008 requires the Secretary of State to consider that question if an application for development consent is made. It may be that the Secretary of State could give advice about it under s. 51 (though the advice would not bind the Secretary of State in the event that an application were made). But this does not mean that the statute allocates the decision about whether a project requires development consent to the Secretary of State alone.

If the developer does not apply for development consent, but the local planning authority considers that development consent is required, it can prosecute under s. 160. In that case, as Mr Kohli accepts, a criminal court would have to decide whether the project does or does not require development consent. I can see no reason why a criminal court (whether a magistrates’ court or the Crown Court) would be better placed than this Court to reach a view about whether development consent is required. Moreover, the availability of an application for injunctive relief under s. 171 seems to me to indicate that Parliament expressly envisaged the possibility that the High Court (or a county court) might have to decide that question for itself.

Mr Kohli did not accept that s. 171 required or permitted the court to determine whether a proposed development required development consent if that question turned on an “evaluative planning judgment”. He relied on South Buckinghamshire District Council v Porter, where Simon Brown LJ had said that the judge on an application for an injunction under s. 187B of the TCPA 1990 (the analogue of s. 171 of the PA 2008) was neither required nor even entitled to reach his own independent view of the planning merits of the case: see [2001] 1 WLR 1359, [38]-[40], affirmed by the House of Lords at [2003] UKHL 26, [2003] AC 558, [38] (Lord Bingham).

In my judgment, however, nothing in Porter supports Mr Kohli’s argument. Section 187B of the TCPA 1990 empowers a local planning authority to apply to a court “where they consider it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction”. In the cases under consideration in Porter, it was common ground that planning permission was required and (at the time when the injunctions were granted) had not been granted: see [6] and [7] of Lord Bingham’s opinion in the House of Lords. That was the context for Simon Brown LJ’s observation at [38] of his judgment in the Court of Appeal that the judge was required to take the “planning merits” (i.e. whether planning permission should have been, or should be, given) as “decided within the planning process” and “a given”.

Neither Simon Brown LJ nor Lord Bingham was saying that the court could not or should not decide the threshold question whether the development was an actual or apprehended breach of planning control, if there was a dispute about that. If, for example, it was the respondent’s case that what he was proposing to do did not require planning permission, the court could not avoid reaching its own view about that (if it were otherwise disposed to grant an injunction). Ipswich Borough Council v Fairview Hotels (Ipswich Ltd) [2022] EWHC 2868 (KB), [2023] JPL 630 illustrates this point well. In that case, a local planning authority sought an injunction under s. 187B of the TCPA 1990 to restrain the use of a hotel to house asylum seekers. There was a dispute about whether this involved a material change of use and so required planning permission. Holgate J considered the arguments for and against in some detail and decided that the issue was “triable”: see at [103]. He went on to conclude that the balance of convenience was against the grant of relief until trial. The conclusion that the threshold issue was “triable” presupposes that that issue was, on the facts of the case, suitable for resolution by the court.

The same reasoning applies, mutatis mutandis, to s. 171 of the PA 2008. The existence of that provision shows that Parliament envisaged that the threshold question whether development consent is required might, in some circumstances, have to be determined by this court (or a county court). The present proceedings are not, of course, proceedings for an injunction under s. 171, but I do not think that matters. They are proceedings brought by parties which could have sought relief under s. 171 in this court. Their purpose is to resolve an issue which both the claimants and Lightsource consider ought to be resolved. If, as I have concluded, that issue can in principle be determined by the court, there are powerful reasons why it should be.

The alternatives are, in my view, unpalatable. Mr Kohli’s suggestion that Lightsource could make an application to the Secretary of State for development consent is impractical and would not achieve the certainty required. It is impractical because applications for development consent are “front loaded” in the sense that they involve a very large amount of preparatory work, including consulting affected parties (see ss. 41-48). Why would Parliament have intended that a developer should be required to consult in relation to an application which, in its view, does not require development consent at all? How could such a consultation be carried out in circumstances where the developer considers that the project is not an NSIP without confusing or misleading those being consulted? In any event, even if a developer undertook all the necessary preparatory work, and submitted an application for development consent, and the Secretary of State rejected the application on the ground that development consent was not required, nothing in the PA 2008 suggests that the Secretary of State’s view would bind the court if the local planning authority took a different view and decided to prosecute (though it might in practice be persuasive).

If the developer chose not to apply for development consent, it would be open to the local planning authority to prosecute under s. 160 once the development had started. Then, as Mr Kohli accepts, the criminal court would have to determine the issue. But why should a developer have to incur the expense of beginning the development when it is clear that there is a dispute between it and the local planning authority about whether development consent is required? And why should a developer have to run the risk of a criminal conviction in order to obtain certainty on a point which both it and the local planning authority wish to have resolved?

Finally, even if there are cases where the question whether development consent is required turns on disputed issues of fact, that is not the position here. Even Mr Kohli did not submit that there were any material disputes of fact. He was right to submit that the question whether development consent is required involves a judgment (or, as it is sometimes put, a question of mixed fact and law). But it is not the kind of judgment which requires the court to weigh the “planning merits” (i.e. the advantages and disadvantages in planning terms of a proposed development). The judgment no doubt involves considering more than one factor, but it is the kind of judgment a court has to make whenever it asks whether a given set of facts falls within a statutory concept. I can see no constitutional or institutional reason why it would be wrong for that judgment to be made by me in circumstances where both the local planning authority and the developer invite me to resolve the issue.

Messrs Barrett and Hunter submit that Hulam and Sheraton are physically connected by a piece of “critical infrastructure”. They note that – in the one situation in which “generating station” is defined, where electricity is generated from water – it includes structures and works for holding water: see s. 64(1) of the EA 1989. By analogy, the substation and cables are part of the generating station. Sheraton and Hulam are to perform as one solar farm, sharing the commercial advantages of common infrastructure. If the individual fields at Sheraton are parts of the same solar farm despite being non-contiguous (as Lightsource accepts), it is not obvious why the addition of those fields to the already permitted solar farm at Hulam is not an extension of the latter.

In my judgment, Messrs Humphries and Kohli are correct that the reference to s. 64(1) of the EA 1989 does not assist the claimants. In the first place, the fact that a special definition was employed for a generating station involving water suggests that, without that definition, the structure and works for holding or channelling the water would not fall within the ordinary meaning of “generating station”. In any event, even if it were appropriate to draw an analogy from a generating station using water to one using solar power, the definition suggests inclusion of structures and works for containing and channelling the raw material from which the power is generated. In the case of solar, that source is sunlight. The structure and works whose function is to collect and channel the sunlight are the photovoltaic panels. There is nothing in the definition in s. 64(1) to suggest that the apparatus needed to transmit and distribute the electricity is itself part of the “generating station”.

On this point, the decision in R (Redcar and Cleveland Borough Council) v Secretary of State for Business, Enterprise and Regulatory Reform [2008] EWHC 1847 is directly relevant. There, the Secretary of State had given consent under s. 36 of the EA 1989 for the construction and operation of an offshore wind farm. The developer had applied separately under the TCPA 1990 for planning permission for an on-shore substation and underground cabling connecting the wind farm to the substation. The local planning authority’s argument was that the consent for the offshore wind farm was invalid because the cables and substation were part of the “generating station” and a consent under s. 36 of the EA 1989 could only be granted for the whole of the generating station.

At [18], Sullivan J said this:

“It is true that the ‘whole scheme’ proposed by the interested party includes both the wind farm offshore and the elements comprised in the onshore application: the cabling and the onshore substation. However, it does not follow that the wind farm comprised in the s 36 application could not properly be described as a ‘generating station’ for the purposes of that section. In ordinary language a ‘station’ is simply a place, building or structure where a particular activity occurs. Thus, we speak of police stations, polling stations, railway stations, et cetera. A non‑technical description of a ‘generating station’ would simply be a building or structure where electricity is generated. The nature of the building or structure will depend on the means of generation: wind, water, coal, nuclear power, et cetera. An application for consent under s. 36 may include ancillary facilities, such as transformers, substations and associated cabling, and, for example, coal stockpiles and handling equipment if the generating station is coal‑fired, et cetera. Whether or not such ancillary facilities are included in any s. 36 application will depend upon the facts of the individual case, including, in particular, the physical proximity of the ancillary facilities to the turbines themselves. In the case of an oil or coal‑fired generating station the turbines and some or all of the ancillary facilities may well be housed in one building or structure or complex of buildings or structures. In the case of an offshore wind farm the turbines may well be separated by many kilometres of territorial waters from the ancillary facilities onshore. In the former case it will be sensible to include all of the elements of the scheme, including any ancillary facilities, in one application under s. 36. In the latter case it will not, not least since the environmental implications of the offshore turbines may well be entirely divorced from the environmental impact of the onshore facilities many kilometres distant.”

At [27], he continued:

“Both as a matter of ordinary language, and on any reasonable interpretation of the provisions of the 1989 Act as amended by the 2004 Act, the ‘generating station’ is the place, in the present case the wind farm offshore, where the electricity is generated. Once it has been generated there, at a ‘generating station’, it is transmitted ashore.”

These passages demonstrate that the cables and substation the subject of the present applications are not part of a “generating station”. They are the means by which the electricity is transmitted and distributed, not generated. It is true that the PA 2008 does not incorporate all the provisions of the EA 1989 upon which Sullivan J placed reliance. But, by s. 235(1) of the PA 2008, Parliament made a deliberate decision that “generating station” should bear the same meaning as in Part 1 of the EA 1989. This would be a bizarre drafting technique if the intention had been to give the term “generating station” a different meaning. The Redcar case is therefore, on the face of it, fatal to the claimants’ argument that the cables and substation are part of the generating station. As the decision of a judge of co-ordinate jurisdiction, I am obliged to follow it unless convinced it was wrongly decided. I am not convinced that it was wrongly decided. On the contrary, I find the analysis of Sullivan J compelling as a matter of ordinary language.

This is consistent with the scheme of the PA 2008, which permits an application for development consent to include both “development for which development consent is required” and also “associated development”: see s. 115(1)(a) and (b). Annex B of the Department for Communities and Local Government’s Guidance on associated development applications for major infrastructure projects (April 2013) lists both overhead and underground cables and substations as examples of associated development related to onshore generating stations. Although not determinative as to the proper interpretation of the PA 2008, this is consistent with the analysis in the Redcar case.

That leaves the argument, upon which Messrs Barrett and Hunter placed emphasis at the hearing, that even if the cables and substation are not part of the generating station, the addition of further generating capacity at Sheraton, functionally linked to that at Hulam, counts as an extension of the latter. As to this, I accept that the addition of generating capacity, even at a site which is non-contiguous with the site of the existing generating capacity, could fall within the definition of an “extension” in s. 36(9) of the EA, if – on the facts – the two sites could properly be regarded as part of the same generating station. In this case, however, there are a number of features which point strongly against that conclusion.

First, the projects at Hulam and Sheraton were developed separately at different times. This would not be determinative on its own, but it points in the direction of separate stations, other things being equal. Second, they have separate distribution and connection agreements and are separately metered. A third, related point is that Sheraton and Hulam could operate independently of each other – both in contractual terms and in terms of physical infrastructure. Fourth, the common substation at Hart Moor in reality consists of two substations, one for Sheraton and one for Hulam. Fifth, in any event, this substation is part of the apparatus for transmitting and distributing electricity, not generating it – as reflected in the proposal that it will in due course be adopted by NPg. Sixth, as the Technical Note shows, the reason for the proposed common 66kV cable transmitting electricity from the common substation to the grid is that this arrangement is more efficient, not that the generating capacity of the two solar farms is interconnected.

These factors, taken together, make it clear that the proposed generating capacity at Sheraton is, in terms of the PA 2008, a new generating station and not an extension of the permitted solar farm at Hulam. I would therefore refuse to grant Declarations One and Two, not because the grant of declarations would be in principle inappropriate, but because the substance of the declarations is wrong in law. Mr Humphries did not ask me to grant any other declaration and I do not do so.

Given my conclusions on issues (a) and (b), this issue does not strictly arise. However, given that I have heard argument, I will briefly express my view on it.

The claimants’ case is that the regimes under the TCPA 1990 and the PA 2008 are mutually exclusive. They say that the position is as set out in the Planning Encyclopaedia: “where development consent is required under the Act, planning permission under the Town and Country Planning Act 1990 is neither required nor capable of being granted” (emphasis added). In my view, this is wrong, for four reasons.

First, it is clear that Parliament intended that development consent under the PA 2008 should not be granted unless it was required: s. 55(3)(c). There is nothing equivalent in the TCPA 1990. Section 336(1) provides that “planning permission” means “permission under Part III or section 293A but does not include permission in principle”. Parliament could have provided that planning permission can only be granted for projects for which it is required in accordance with s. 57, but it did not do so.

Second, s. 33 of the PA 2008 does two separate things. Section 33(1) provides that, where development consent is required in relation to development, various other permissions, consents, notices and authorisations are “not required to be obtained or given” (emphasis added). These latter words reflect the fact that some of the things that are not required – e.g. planning permission granted under the General Permitted Development Order or notice under s. 35 of the Ancient Monuments and Archaeological Areas Act 1979 – are “given” rather than “obtained”. Sections 33(2) and (4) provide that, to the extent that development consent is required for development, it cannot be authorised pursuant to certain specified statutory procedures. There is no prohibition on the grant of planning permission.

Third, it is true that, in general, Parliament is unlikely to empower a public authority to undertake a resource intensive function, such as deciding whether to grant planning permission, if the permission will have no effect. By the same token, however, it is unlikely that parties would commit the time and expense involved in making a planning application in cases where it is clear that implementing it would be unlawful under s. 160 of the PA 2008.

Fourth, the facts of the present case are a good example of a situation in which the planning permissions sought would be far from useless even if – contrary to my conclusion – the two solar farms, taken together, were an NSIP. In that case, parts of the permissions could be lawfully implemented, provided that the generating capacity of the whole did not exceed 50 MW.

I would therefore hold that the local planning authority’s power to grant planning permission, and the inspector’s jurisdiction to entertain the appeals, are not dependent on the projects not being an NSIP.

For these reasons I conclude as follows:

The claim for judicial review is therefore dismissed.