High Court rules on practicalities of amendments at appeal stage

Judgment was handed down today in R (Bramley Solar Farm Residents Group) v Secretary of State LUHC [2023] EWHC 2842.

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Local residents challenged an Inspector’s decision to grant permission at appeal for a solar farm and battery storage scheme on 85ha of agricultural land in Hampshire. Lang J made a number of important findings, including on topics that repeatedly rear their heads at appeals of this sort: (1) amendments at appeal stage, (2) landscape harm under the NPPF, (3) the right to choose your witnesses, and (4) whether the PPG requires an alternatives assessment.

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Amendments at appeal – Appellant can conduct the consultation

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At appeal, the Appellant had made revisions to the scheme and updated the Environmental Statement. The Council did not want to carry out a further consultation. So, the Appellant carried out a consultation itself, through site notices, newspaper articles, letters, and copies posted on the Council website and in the Council offices.

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At the CMC, the Rule 6 Party objected to consideration of the Revised Scheme. The Inspector decided that, given the dispute, and since the proposed amendments were not extensive, it would be pertinent to consider both schemes at the Inquiry.

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The Inspector in his decision letter concluded in light of the consultation being carried out and the fact that the changes (including removal of some solar panels) were “minor”, the appeal could properly be pursued on the basis of the Revised Scheme.

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In the High Court, the Claimant contended that: the Inspector had erred in law by considering the Revised Scheme; that the consultation had been unfair; and that the Inspector should have reached a determination before the Inquiry (Grounds 1-3).

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The Judge held:

·???????? In practice, consultations are today sometimes carried out on appeal amendments, as acknowledged by PINS new 2023 Procedural Guidance (§43).

·???????? Holborn Studios identifies that there are both substantive constraints (e.g. is the change substantial) and procedural constraints (e.g. does fairness require re-consultation) on amendments at appeal.

·???????? The Inspector made a lawful exercise of planning judgment when he found that the modifications were minor (§67).

·???????? There is no legal obligation to comply with the requirements of the DMPO (which apply to application-stage) when applying to amend a scheme at an appeal (§86). At appeal stage, there is no statutory obligation to consult on a proposed amendment, but consultation may be required in the interests of fairness.

·???????? While the Appellant’s consultation did not comply strictly with the DMPO, reasonable steps were taken to notify the public, who had a fair opportunity to air their views (§87).

·???????? There is no requirement that a consultation on a proposed amendment should be conducted by a public body. It was appropriate in this case for the developer to carry out the consultation (§90).

·???????? The Inspector was entitled to consider both schemes at the Inquiry, and to wait to decide on whether to accept the amendments in his final decision letter (§§103-106).

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Landscape under the NPPF

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The Claimant contended that the Inspector had misinterpreted §174 of the NPPF (Ground 5). ?The Judge disagreed, holding that §174 draws a distinction in respect of the policy applicable to valued landscape and other countryside, at sub-paragraphs (a) and (b). Valued landscapes are to be “protected” and “enhanced” whereas other countryside is to be “recognised” for its intrinsic character and beauty (§140). Whilst “recognise” must have some protective implication, the level of protection afforded to valued landscape is plainly higher (§140).

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Witnesses – Parties can choose who to call

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The Appellant at the Inquiry had chosen not to call one of the witnesses that had submitted a Proof, in the interests of time and on the basis that no opposing Proof on the topic (battery storage) had been submitted by the Council or Rule 6 Party. The Claimant argued that this was unfair, and that they should have been given the opportunity to cross-examine this Appellant’s witness (Ground 6).

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The Judge held that it would have been highly unusual for the Inspector to issue a witness summons in respect of an expert witness in these circumstances, and the Inspector was entitled to take the view that it was a matter for the parties to decide which witnesses they wished to call (§158).

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Alternatives – No sequential test under the PPG

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Finally, the Claimant contended that the PPG on Renewable and Low Carbon Energy imposed at §013 a requirement to consider alternatives where solar farms use best and most versatile agricultural land (“BMV”). The Judge disagreed, holding that:

·???????? The PPG is merely practice guidance which supports the policies in the NPPF. It is not a binding code which prescribes the steps that must be taken when planning a solar farm (§177).

·???????? The PPG does not mandate the consideration of alternatives. Still less does it require a sequential test be adopted. Where national policy requires a sequential test to be applied it expressly provides as much (§179).

·???????? Lang J also referred back to her recent judgment in Substation Action Save East Suffolk that consideration of alternative sites will only be relevant to a planning application in “exceptional circumstances”.

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See the full Judgment here: https://www.bailii.org/ew/cases/EWHC/Admin/2023/2842.html