Delivering solar DCOs

Development consent has been granted for a solar and energy storage project for the first time

15 June 2020

On 28 May the Secretary of State (SoS) for Business, Energy and Industrial Strategy (BEIS) granted a development consent order (DCO) for Cleve Hill Solar Park, a proposed solar farm and battery storage facility in Kent. With a total combined capacity of around 350MW, the project significantly exceeds the 50MW threshold for a Nationally Significant Infrastructure Project (NSIP) and is the first of its kind to be promoted.

The project is a joint venture between Hive Energy and Wirsol and is unsubsidised. It stands as yet another example of the continuing ascent of large scale subsidy free solar and battery storage, which we signalled in an earlier blog.

The scale of this project, however, is unprecedented, with the development site covering approximately 491 hectares in total. The decision sets the framework for solar DCOs, but also highlights how there will be a different model for smaller solar DCO projects.

Need in absence of NPS

As there is no National Policy Statement (NPS) that explicitly covers solar powered electricity generation or battery storage, the SoS could not rely on the presumption of need which the Overarching NPS for Energy (NPS EN-1) provides for in relation to other types of renewable energy infrastructure. Instead he was required, under section 105(2) of the Planning Act 2008, to consider other matters that he deemed to be important and relevant to the decision.

The primary factor that influenced the decision was the potential contribution of both the solar and storage elements of the project towards the Government’s legally binding ‘Net Zero’ decarbonisation target, as set out in the Climate Change Act 2008.

This clearly indicates the Government’s recognition of the integral role that solar will play in the transformation of the UK’s energy sector, whilst also taking account of the Local Plan and the National Planning Policy Framework. It is particularly notable in the context of increasing calls - including from the Committee for Climate Change - for the UK’s economic recovery from COVID-19 to incorporate a reduction in greenhouse gas emissions and an increase in climate investments. We recently wrote about how renewable energy projects will be key to this.

This decision shows a BEIS mind-set close to an NPS-style presumption in favour of consent.

Impacts and mitigation

Need is, of course, balanced against impacts.

Key issues were the visual effects of the development and its impact on the historic marshland landscape. Here, it was acknowledged that NPS EN-1 states that NSIPs are likely to give rise to negative visual effects that may be difficult to mitigate. However, it was important that these adverse effects had been minimised as far as possible, including through the Applicant’s modification of the solar panel design, a reduction in the extent of the arrays and the plan for strategic landscape planting around the site.

Biodiversity was also key. The development site overlaps party with an SPA/Ramsar site – with other parts of the site functionally linked to the SPA, with impacts on Brent goose, lapwing, golden plover and marsh harrier through noise and visual disturbance, loss or change of habitats, hydrological changes or deposition of dust. A substantial mitigation package had to be negotiated and secured under the terms of the DCO, including environmental and biodiversity management plans.

Finally, there was significant public concern over the safety of the battery storage facility and, in particular, the health risks of a fire or explosion connected with lithium-ion batteries (which the Applicant has not yet confirmed will be used).  However, the SoS was convinced that the risks could be managed or mitigated sufficiently through existing legislation and safety requirements, and the Applicant’s Battery Safety Management Plan, which was reviewed by the Health and Safety Executive and Kent Fire and Rescue Service. The importance of battery storage to a low carbon electricity network was also emphasised.

TCPA or DCO?

The solar market has understandably avoided the DCO regime for timetable and cost reasons. This decision marks an excellent start for the ‘mega’ solar DCO project – whose number will be limited by finding appropriate sites with grid connections.

Arguably, the more interesting challenge is for the smaller DCO sites, of which there are many emerging. This decision sets a strong need bench mark. The challenge will be crafting a DCO strategy and team which gets smaller DCO schemes through the system in a proportionate way.

The DCO process requires a new set of skills and mind-set from the TCPA regime. Experienced DCO advisors are essential to control costs and drive the timetable with confidence.

DCOs also bring acquisition powers directly to the table in a way most solar developers are not used to, which has the potential to release sites held back under the TCPA regime.

If you would like to know more about this decision, or how to deliver a solar DCO in a cost effective way, please contact Julian Boswall.

Key contact

Julian Boswall

Julian Boswall Partner

  • Energy, Power and Utilities
  • Infrastructure
  • Planning and Compulsory Purchase

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