In the October edition of Solar Business Focus UK I reflected on how the new National Planning Practice Guidance (NPPG) had resulted in some very different interpretations from the Planning Inspectorate (PINS) on how that guidance should be applied when determining planning appeals for ground mounted solar.

The ambiguity arises because in somewhat vague terms at the snappily titled paragraph 013-5, the NPPG requires local planning authorities (LPAs) to consider using previously developed (aka ‘brownfield’) land; and to ask whether the use of greenfield sites (in practice, farmers’ fields) has been “shown to be necessary”, with a preference for lower quality agricultural land when greenfield sites are proposed.

Back in June 2014, in a unique appeal decision, the Inspector, Elizabeth Ord, insisted that the NPPG compels solar farm developers to consider, sequentially, alternative sites over a geographic area that was potentially without limits. This was quite a departure and to date still a one-off personal decision with no legal basis, as we shall see.  The ‘sequential test’ had hitherto only been encountered in town centre planning, where it is used by local planning authorities to aid plan making and development control through identifying brownfield land in and around towns and cities for shops, leisure facilities, offices and so forth. What all these land uses have in common is that large numbers of people need to travel to them on a daily basis. The NPPG notes that this process requires “a thorough assessment of the suitability, viability and availability of locations for main town centre uses” and that when retail developers are required to perform a sequential test, the local planning authority should support the applicant in this exercise by “sharing any relevant information”.

As a result, LPAs collect data on the location and status of brownfield land in locations suitably located for in and around existing settlements, for example through inviting submissions for Strategic Housing Land Availability Assessments and implementing Employment Land Reviews. This information then informs the identification of sites for town centre uses in development plans and assists developers seeking land to find the best sites for the needs of a given population.

One of the main problems with applying such a test to solar farms is the lack of information on potential sites. There has been no requirement on LPAs to prepare an evidence base to identify land suitable, viable and available for solar farms, a point made by the Inspector in the case of Westerfield Farm in Oxfordshire, published on 1 December 2014.

In this appeal decision, the Inspector, Robert Mellor, brought the NPPG requirements for solar farms more in line with town centre uses by putting the onus on finding brownfield land squarely at the feet of the LPA, not the developer. He opined: “It can be expected that the Council would know what brownfield land is available in West Oxfordshire but there is no evidence before me that non-agricultural brownfield land of comparable scale and suitable for solar energy is available in West Oxfordshire or that there is any local policy to identify such land for renewable energy or to direct development towards it.”

This is remarkable stuff and, in my opinion, long overdue. It goes to the heart of the problem facing solar farm developers asked to demonstrate that there are no more suitable brownfield (or lower grade agricultural) land available in the area, which is the non-existence of data. Asking solar farm developers to demonstrate that there are no more suitable, alternative sites available through a sequential test is to commit a fundamental logical fallacy, shifting the burden of proof. By doing so, an LPA (or, in the case of the Valley Farm appeal, the Planning Inspector) is asking the developer to disprove his own case. This is tricky as the developer already has evidence that his site is suitable, viable and available (after all, he has chosen to develop it) and the LPA is presuming the existence of something for which there is no evidence. The unreasonableness of this position is exactly what the Inspector in the Westerfield Farm appeal decision highlights.

If there is a better site then it is the LPA’s responsibility to show evidence for it as it is the planning authority, not the developer, who is entertaining the possibility that it exists. Not only that, there is nothing in planning policy nor in law that requires developers to show theirs is the best site.

As Mr Mellor succinctly puts it: “It is not local or national policy for a developer to be required to prove that there is no better alternative location for a development before planning permission may be granted.”

Town centre uses are a special case because local planning authorities collect the data needed to decide on the best locations for shops and leisure facilities, and they are working within well-defined, geographically discrete areas. Such an imposition cannot work with development that isn’t located proximate to its end user and where a host of – often complex – factors come in play to determine location.

Solar farm site selection is dictated not by the proximity of the end user but by intricate supply side inputs, from irradiation levels, a landowner’s long term vision for his farm business to the logistics of transmission to the grid. As such, the only way to make reasonable planning decisions on solar farms in a particular location is to look at all the factors in the round and take a balanced view. Fortunately, the majority of decision makers, both at local authority and Inspectorate level, do weigh all factors and read the government advice as a whole.

To have legitimacy, policies that guide the development of land must be based on sound justification and fairness. Requiring solar farm developers to discount alternative sites not only shifts the burden of proof and has no support in law, but also puts solar farms on an unequal footing with land uses that take more land out of agricultural production, and for longer time periods. Golf courses are the obvious culprits, because of their large land take, but it remains that developers of ground-mounted solar farms have been singled out in needing to justify their selected site against other, unknown sites. This is despite solar farms being temporary uses of 25-30 years.

Further, it is a test not required of other energy plants, the location of which are similarly driven by supply side economics, such as shale gas drilling rigs and using farmland to grow biofuel crops. The latter may not require planning permission, but biofuel power plants do and the government has previously given generous subsidies to enable the construction of advanced biofuel plants in the UK. The fuel for those plants is grown each year on thousands of acres of prime British farmland.

The Westerfield Farm appeal decision should be heralded as the latest in a series of reasoned decisions from the Planning Inspectorate, in which the developers were not burdened with the need to discount alternative sites. Instead a balanced view was taken of the development as a whole.

The Inspector concluded that the various initiatives in the NPPF & NPPG 5-013 – sustainable development, biodiversity enhancement, continued livestock grazing, reduction in carbon emissions, social and economic benefit – were arguments that weighed in favour of the use of intensively worked arable fields for a solar farm for 25 years.

In my opinion, a sequential test for a solar farm is a flawed concept. I would like to see a re-evaluation of the NPPG guidance on solar farms, if only to bring back the level playing field for ground-mounted solar against other types of development. The National Planning Policy Framework protects the best farmland from all development so there was never any need to add another layer of ambiguously worded planning guidance aimed solely at the solar industry.  Good planning decisions look at proposals in the round and let’s hope we see more of this common sense approach in 2015.