England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT CARDIFF

		Royal Courts of Justice Strand, London, WC2A 2LL
		05/06/2015

Mrs Justice Patterson:


 


Introduction

1. This is a rolled-up hearing ordered by Lindblom J on 17 February 2015.
2. The decision under challenge is a planning permission granted on 7 November 2014 by the defendant for a photovoltaic solar park at Hafod Y Dafal Farm, Aberbeeg, Abertillery.
3. The claimant has an interest in land adjoining the application site. He is coordinating a mineral project.
4. The defendant is the Local Planning Authority for the area.
5. The interested party is the recipient of planning permission C/2014/0126. The interested party was not represented and did not appear at the hearing before me.
6. Planning permission was granted in the following terms:

"Provision of photovoltaic solar park (14 MW) comprising of 53,955 photovoltaic solar panels over 28.6 HA of agricultural land and ancillary infrastructure to include, 1 substation, 11 inverter stations, pole mounted security cameras, security fencing, creation of an all weather access route for maintenance, excavation of a cable trench to the south for grid connection and landscaping at Hafod-Y-Dafal Farm Aberbeeg, Abertillery."

The planning permission was conditional. The conditions which are relevant to the current proceedings are 14 and 20. They read:

"14. All electrical cabling between the solar park and the grid connection shall be installed underground.

…

20. The southern cabling route from the main site to Aberbeeg does not form part of this planning permission."

The reasons for their imposition are:

"14. In the interests of visual amenity.

…

20. The effects of the proposed cabling route on protected species and habitats have not been satisfactorily addressed by the developer."

7. The claimant alleges, in its grounds, that the decision is unlawful for four reasons:

i) that the planning permission is unclear and Wednesbury unreasonable on its face as it does not grant planning permission for the excavation of the cabling trench route to the south;

ii) that the defendant acted in breach of its biodiversity duties in granting planning permission without appropriate ecological surveys for either cabling trench;

iii) the defendant failed to take into consideration the ecological issues regarding the alternative track route;

iv) the defendant failed to take into account a material consideration, namely, the UK Solar Photovoltaic Strategy Part 2 published in April 2014.

8. As will become clear later in this judgment there was some amendment to the grounds during the hearing before me.

Factual Background

9. The site comprises 28.6 hectares of agricultural land at Hafod Y Dafal Farm. It forms part of an upland ridge of elevated moorland located between the settlements of Cwm and Abertillery. The site is agricultural land comprising improved and semi-improved grazing land in a distinctive rectangular field pattern.
10. Planning application reference C/2014/0126 was submitted by the interested party to the defendant on 16 May 2014 and was accompanied by numerous experts' reports.
11. The officer report recommended approval of the application. It summarised the application at the beginning as follows:

"Full planning permission is sought for a photovoltaic solar park with a generating capacity of 14 mw on agricultural land at Hafod Y Dafal, Cwm. The site occupies the ridge top position but is located within an existing field pattern of stone walls, hedges and trees. The development comprises 53,955 photovoltaic solar panels over 21 hectares of agricultural land with the access road and grid connection route increasing the site area to approximately 28.6 hectares. Ancillary infrastructure includes electrical equipment, security fencing, pole mounted cameras and all weather access route around the site, excavation of a cable trench and landscaping works. Access to the site would be via the existing forestry access track from the A4046 at Aberbeeg. The report addresses the material planning considerations. After careful consideration of the benefits of securing renewable energy it is my opinion that, on balance, the proposed development would not have an unacceptable adverse impact and that planning permission should be granted subject to conditions."

The issue of access to the site was important. The report said:

"- The site will be accessed via the existing forestry track to the site and the existing access track around the site will be utilised. However, an all-weather access track 3.5m in width will need to be constructed along the eastern boundary of the site, with spurs off it into the arrays, to provide a circulation route for maintenance works. The track bed will be constructed using loose aggregates which will be allowed to grass over. An indicative plan has been submitted but the final details could be a condition of planning permission.

- There are two possible grid connection routes indicated in the application only one of which will be required. The first route would follow the line of the existing forestry track down to the site entrance, requiring the cable to be buried in the track. The second would take a southerly route down the mountain to Aberbeeg through an area of mainly plantation trees. This would require the excavation of a new cable trench. The applicant indicates that the grid connection works would be carried out by Wales & West Utilities under their permitted development rights but the routes are included in the application."

12. On landscape the conclusion was that, while there will be a significant negative impact on the landscape character of the site with the development, this is at the local level and the proposed landscape mitigation will help over time. The impact was not considered to be so significant as to recommend refusal of the planning application.
13. The report went on to consider ecology. It said:

"Council Ecologist: No objection

An Extended Phase 1 Habitat Survey has been submitted with the application which considers impacts upon priority and protected species and habitats. A number of recommendations are made in the report which should be implemented as part of this development. These recommendations should be written into the form of a Mitigation and Management Plan which should exist for the lifetime of the scheme.

The cabling/access routes have not been considered as part of the submitted ecology survey so it is not clear whether they are within or adjacent to any locally protected SINC areas or if there will be any protected species or priority habitat implications. The ecology report should have been updated to include the impacts of access and cabling routes on protected/priority species and habitats and locally designated sites. However, it is considered that the impacts can be addressed through the proposed Mitigation and Management Plan."

14. The report summarised the responses from the consultees. Amongst those was Natural Resources Wales. Their response said:

"Natural Resources Wales: No objection

Landscape: The proposal in its own right is unlikely to have an adverse impact of Designated Landscapes. Recommend that the Local Planning Authority consider cumulative impacts.

Ecology: Recommend that a works methodology is agreed that follows advice in section 4 of the 'Reports 4 Planning' report dated May 2014."

15. Relevant planning policy was summarised by reference to Planning Policy Wales Edition 7 and Technical Advice Note 8: Planning for Renewable Energy 2005.
16. The planning considerations section of the report was split into fifteen subheadings. Under the principle of the development the strong support for renewable and local carbon energy given by the UK and Welsh Government was set out. The report continued:

"The national policy context and Blaenau Gwent LDP encourages renewable energy schemes. Accordingly there is no policy objection to the principle of the development, but in order for the scheme to be acceptable it is necessary to assess it against all relevant planning policies and other material planning considerations."

17. Ecological interests were considered as follows:

"An Extended Phase 1 Habitat Survey has been submitted as part of the planning application which considers the impact of the development on priority and protected species and habitats. The report concludes that there are no significant impacts on matters of ecological importance and makes a number of recommendations in terms of mitigation and enhancement of biodiversity.

Natural Resources Wales and the Council's Ecologist raise no objections to the proposal from an ecology perspective, but both require that the recommendations in Section 4 of the Extended Phase 1 Habitat Survey are implemented as part of the development. These requirements should be the subject of a condition requiring the preparation of an Ecology/Landscape Mitigation and Management Plan for the long-term (10 year) management of the site.

…

In addition, an updated Construction Environmental Management Plan should be submitted detailing protection of retained habitat features and protected species during the construction works."

18. On the cabling/access route the officer report said:

"The Ecologist also notes that the proposed cabling/access route to the south has not been considered as part of the submitted ecology survey so it is not clear whether they are within or adjacent to any locally protected SINC areas or if there will be any protected species or priority habitat implications. The ecology report should have been updated to include the impacts of access and cabling routes on protected/priority species and habitats and locally designated sites.

The Ecologist considers that the impacts can be addressed through a condition requiring that, immediately prior to the commencement of the construction of the cabling route and laying of cables, a survey in relation to ecology to establish any localised impacts on protected species (in particular badgers) and on adjacent SINCs, and an appropriate mitigation strategy be submitted to the Local Planning Authority for approval. No works shall commence until the mitigation strategy has been approved. An ecological clerk of works shall be appointed to oversee the construction of the cabling routes in compliance with the approved mitigation strategy."

19. Section 13 of the report was headed 'Grid Connection'. That reads:

"The electrical connections between the substation and the local electricity distribution network will be the subject of a separate application by the distribution network operator. However, the applicant's research indicates that this could be achieved in one of two ways and the application site boundary has been drawn to take account of the two options. The applicant has confirmed that only one route will be required and this is currently the subject of ongoing investigations by the network operator.

The first grid connection option would involve laying cables under the existing access tracks to the site, to a connection point at Aberbeeg. The second option involves via a route from the site south to Aberbeeg through an existing commercial forestry plantation.

If the route to the south to Aberbeeg is selected as the preferred option two conditions are required. The first condition is to ensure that an ecological survey of the route is undertaken prior to its construction, primarily to mitigate impact on any badger sets that may be present and to ensure that the excavations are overseen by an ecological clerk of works. The second condition requires the implementation of the submitted Arboricultural Method Statement to in relation to tree protection and tree works. Both matters are covered in the ecology section of this report.

A grid connection, depending on the works proposed, may be the subject of a separate planning permission. As no detailed proposals have been submitted in respect of the grid connection works this cannot be determined at this stage. Two conditions are proposed in the event the southern cabling route grid is chosen as the preferred connection route."

The week before the planning committee met a holding direction was issued by the Welsh Government. As a result the committee could not determine the application. A second officer report was, therefore, prepared. The committee was advised that the second report should be read in conjunction with the first.

20. On 15 October 2014 the Welsh Government wrote to the defendant and stated that it had concluded that the application should not be called in. On the same day the defendant received a letter of objection from a third party. The letter of objection was to the effect that it would be unlawful to grant consent because of ecological issues, namely, that without any survey on the access tracks there was nothing upon which significant nature conservation effects could be assessed. The objection letter was summarised in the second report as follows:

"In effect the above statement challenges the legality of granting planning permission for the development on the grounds that officers recommended planning permission be granted subject to a condition (condition 19) requiring an ecological survey to be undertaken prior to the commencement of the construction of the proposed southern cabling route to Aberbeeg, rather than ensuring that all the information was made available prior to the determination of the application. The third party argues that granting planning permission on this basis would be unlawful because the application would be determined without full knowledge of all the impacts of the development on protected species/habitats. Third party cites planning case law in support of their position."

21. The officer report continued:

"To re-cap on the original officer report, the developer proposed to bury the electrical connection cable from the solar park to the electricity network underground. The southern cabling route is identified within the red line boundary of the planning application and runs from the main site down the mountain through a forestry plantation to a connection point at Aberbeeg. The route was belatedly added to the application by the applicant immediately prior to its validation. Accordingly it later became apparent that it was not subject to the ecological survey that was carried out for the remainder of the site and submitted with the planning application.

The southern cabling route was identified as an alternative to another cabling route which is proposed to be laid in the existing forestry access track up to the site. The applicant felt it expedient to include both routes in the application because, at the time of making the application, the District Network Operator (Western Power) had not concluded which would be the preferred connection route to the site.

…

Whilst the Ecologist felt that the lack of an ecological survey for the southern cabling route was an omission, she concluded that the risk to protected species (in particular badgers, breeding birds and to a lesser extent bats) and the nearby SINC as a consequence of the construction of the route was relatively low. This evaluation took into account that the area of the site through which the cable would be routed was between 40-50 metres wide and that the cabling would be laid using a 'mole' technology, which has the ability to circumnavigate around obstacles and areas that might be identified as sensitive, such as badger sets. Her recommendation to attach Condition 19, requiring an ecological survey of the route immediately prior to its construction, was therefore considered to be a low risk strategy as it would enable protected species/habitats to be avoided in the construction of the route.

Furthermore, I made the recommendation to attach Condition 19 in the knowledge that the Council could refuse to discharge the condition in the event that the ecological survey revealed that the cabling route could not be constructed without significant impacts on protected species/habitats (e.g. in the unlikely event that badger sets cut across the entire proposed route). Whilst this would have ruled out the use of the southern cabling route it would not have prevented the development being implemented because an alternative cabling route was included in the planning permission."

It concluded:

"To remove/minimise such risk I have concluded that an alternative approach would be more suitable. I consider that planning permission can still be granted for the development whilst removing the risk of a legal challenge in respect of Condition 19, which would involve making a minor amendment to the original resolution to grant planning permission. The amendment would be to remove Condition 19 and add a further condition stating that the southern cabling route indicated on the approved plans shall not be used (in effect vetoing its use as part of the planning permission). The removal of the southern cabling route would not prevent the permission being implemented because an alternative route, via the forestry track, is available. This approach has been discussed with the applicant and they have agreed to it.

Members should be aware that the southern cabling route could be implemented by the statutory undertaker (Western Power). In making the electrical connection between the solar farm and the network the statutory undertaker is governed by separate permitted development rights/legislation. Such a connection would be wholly unrelated to the planning permission."

22. The officer recommendation remained one of grant of planning permission, subject to the removal of the earlier condition 19 and its replacement with what is now condition 20, set out above. Planning permission was granted on 7 November 2014.

Legal Framework

23. In determining a planning application a Local Planning Authority is required to follow section 70 of the Town and Country Planning Act 1990 (as amended) (TCPA) and section 38(6) of the Planning and Compulsory Purchase Act 2004.
24. Conditions and planning permissions generally should not be construed like commercial documents. They are to be given the meaning that a reasonable reader would give to them: Carter Commercial Development Ltd v Secretary of State for Transport, Local Government and the Regions [2002] EWCA Civ 1994 at [27].
25. Conditions may be used to remove existing rights or permitted development rights: Richmond-upon-Thames London Borough Council v Secretary of State for the Environment [1974] 1 All ER 193.
26. A condition may remove an element of the proposed development such as a proposed means of access: Kent County Council v Secretary of State for the Environment [1976] 33 P&CR 70 at [76].
27. It is well established that planning permission may be granted for a smaller development or for less development than was applied for: Wheatcroft v Secretary of State for the Environment [1982] JPL 37.
28. The principles to be applied in construing a planning permission are well established. Keene J (as he then was) restated the principles in R v Ashford Borough Council ex p Shepway District Council [1999] P&CR 12. Keene J said:

"(1) The general rule is that in construing a planning permission which is clear, unambiguous and valid on its face, regard may only be had to the planning permission itself, including the conditions (if any) on it and the express reasons for those conditions: see Slough Borough Council v. Secretary of State for the Environment (1995) J.P.L. 1128, and Miller-Mead v. Minister of Housing and Local Government [1963] 2 Q.B. 196.

2. This rule excludes reference to the planning application as well as to other extrinsic evidence, unless the planning permission incorporates the application by reference. In that situation the application is treated as having become part of the permission. The reason for normally not having regard to the application is that the public should be able to rely on a document which is plain on its face without having to consider whether there is any discrepancy between the permission and the application: see Slough Borough Council v Secretary of State (ante); Wilson v West Sussex County Council (1963) 2 QB 764, (1963) 1 All ER 751; and Slough Estates Ltd v Slough Borough Council and others (1971) AC 958, (1970) 2 All ER 216.

3. For incorporation of the application in the permission to be achieved, more is required than a mere reference to the application on the face of the permission. While there is no magic formula, some words sufficient to inform a reasonable reader that the application forms part of the permission are needed, such as '. . . in accordance with the plans and application . . .' or '. . . on the terms of the application . . .', and in either case those words appearing in the operative part of the permission dealing with the development and the terms in which permission is granted. These words need to govern the description of the development permitted: See Wilson (ante); Slough Borough Council v Secretary of State for the Environment (ante).

4. If there is an ambiguity in the wording of the permission, it is permissible to look at extrinsic material, including the application, to resolve that ambiguity: see Staffordshire Moorlands District Council v Cartwright (1992) 63 P&CR 285, (1992) JPL 138 at page 139 of the latter report; Slough Estates Limited v Slough Borough Council (ante); Creighton Estates Ltd v London County Council (1958) 171 EG 685, (1958) EGD 182.

5. If a planning permission is challenged on the ground of absence of authority or mistake, it is permissible to look at extrinsic evidence to resolve that issue: see Slough Borough Council v Secretary of State (ante); Co-operative Retail Services Ltd v Taff-Ely Borough Council (1979) 39 P&CR 223, 250 EG 757 affirmed (1981) 42 P&CR 1, (1981) 2 FLR 377."

29. In Barnett v Secretary of State for Communities and Local Government & East Hampshire District Council [2009] EWCA Civ 476 Keene LJ (as he had then become) reviewed his judgment in Ashford as follows, "What I said in the Ashford case was not intended to apply to the interpretation of a full detailed planning permission because", as Sullivan J said:

"On its face, a grant of full planning permission for building operations is incomplete without the approved plans and drawings showing the detail of what has been permitted. In the absence of any indication to the contrary, those plans and drawings will be the plans listed in the application for permission. If the local planning authority does not wish to approve the plans submitted with the application and wishes to approve amended plans, then it can include a statement to that effect in the decision notice."

30. On whether a consideration is material Glidewell LJ in Bolton Metropolitan Council v Secretary of State for the Environment [1991] 61 P&CR 343 reviewed the position at [352/3] and set out a series of principles which included:

"2. The decision maker ought to take into account a matter, which might cause him to reach a different conclusion to that which he would reach if he did not take it into account. Such a matter is relevant to his decision making process. By the verb 'might' I mean where there is a real possibility that he would reach a different conclusion if he did take that consideration into account.

3. If a matter is trivial or of small importance in relation to the particular decision, then it follows that if it were taken into account there would be a real possibility that it would make no difference to the decision and thus it is not a matter which the decision maker ought to take into account.

4. As Hodgson J. said, there is clearly a distinction between matters which a decision maker is obliged by statute to take into account and those where the obligation to take into account is to be implied from the nature of the decision and of the matter in question. I refer back to the Creed N.Z. case.

5. If the validity of the decision is challenged on the ground that the decision maker failed to take into account a matter in the second category, it is for the judge to decide whether it was a matter which the decision maker should have taken into account.

6. If the judge concludes that the matter was "fundamental to the decision," or that it is clear that there is a real possibility that the consideration of the matter would have made a difference to the decision, he is thus enabled to hold that the decision was not validly made. But if the judge is uncertain whether the matter would have had this effect or was of such importance in the decision-making process, then he does not have before him the material necessary for him to conclude that the decision was invalid."

31. Jonathan Parker LJ in R (Kides) v South Cambridgeshire District Council [2002] EWCA Civ 1370 said at [121]:

"In my judgment a consideration is "material", in this context, if it is relevant to the question whether the application should be granted or refused; that is to say if it is a factor which, when placed in the decision-maker's scales, would tip the balance to some extent, one way or the other. In other words, it must be a factor which has some weight in the decision-making process, although plainly it may not be determinative. The test must, of course, be an objective one in the sense that the choice of material considerations must be a rational one, and the considerations chosen must be rationally related to land use issues."

32. To export electricity from an electricity generating station, such as a solar farm, to the network operated by the distribution network operator (DNO) requires a grid connection. The DNO is a statutory undertaker which benefits from permitted development rights (PD rights) pursuant to the Town and Country Planning (General Permitted Development) Order 1995 (GPDO). The GPDO was revoked and replaced in England on 16 April 2015 but not in Wales.
33. Under Class G of the GPDO the DNO benefits from a deemed grant of planning permission to connect a solar farm to the electricity network except by the use of an overhead line. The DNO, therefore, has permission to install an underground connection between the solar farm and the DNO's network.
34. Under section 28G(2) of the Wildlife and Countryside Act 1981 if a statutory undertaker proposes to carry out development – whether under PD rights or otherwise – which is likely to affect a site of nature conservation in any way he must take reasonable steps to further the conservation and enhancement of the features of the site which are of special interest.
35. There are controls on planning permission granted under the GPDO to ensure that any permitted development is not in breach of the EIA Directive or the terms of Article 6 of the Habitats Directive (see Article 3).

Ground One and Ground Two: Is the Planning Permission Unclear on its Face?

36. The claimant contends that the planning permission is confusing because it recites as part of the development permitted: "excavation of a cable trench to the south for grid connection and landscaping at Hafod Y Dafal Farm, Aberbeeg." However, condition 20 removes all reference to the excavation of a cable trench to the south. Although the defendant refers to the existence of the existing forestry track it is not encompassed by the words of the planning permission. On the one hand, planning permission is to be read as granting planning permission for grid excavation operational works but then that is taken away as a result of condition 20. The effect of that could be to prevent the planning permission from being implemented.
37. It is submitted that it is illogical to remove the southern route from the planning permission because there is no lawful means of addressing the absence of ecological survey work after the decision as the alternative route suffers from the same deficiency namely the absence of an ecological survey.
38. The defendant submits that when planning permission was granted the DNO was still investigating the proposed cabling route for grid connection. As a result no details had been provided to the defendant. Any cabling route will be either:

i) subject to a separate planning application; or

ii) granted under the DNO's PD rights under section 37 of the Electricity Act 1989 and schedule 2 of part 17 Class G of the GPDO.

39. The interested party had indicated two potential routes for grid connection in its application neither of which was likely to give rise to significant adverse environmental impacts. As a precautionary measure the defendant excised express reference to the grid connection by condition 20 to ensure that when the cabling route was selected it would undergo further scrutiny.
40. Condition 20, the defendant contends, is perfectly clear and achieves the objective of making any grid connection to the south out the subject of a separate planning application or process. Each of the routes under consideration, if proceeded with, will have the benefit of a consultation response from Natural Resources Wales made with the benefit of full details of the then proposed route.

Discussion and Conclusions

41. In my judgment, there is nothing unusual or unlawful about the defendant's way of proceeding or its grant of planning permission. The wording of the permission is clear, but it has to be read in conjunction with the conditions attached to it. Condition 20 expressly removes the southern cabling route from the main site to Aberbeeg. There is nothing ambiguous in the language used. It is clear and not confusing. Using conventional principles of construing a planning permission a planning consent was granted for the photovoltaic park, as applied for, but without the southern track which was removed from the planning permission. The reason why that was done is clearly set out in the reason for condition 20 so that a reasonable reader is left in no doubt as to what has happened and why.
42. Nor is there anything inconsistent about the treatment of alternative track routes, namely, the existing forestry track and that to the south. The existing forestry track did not need consent for its construction as it was already there. The southern route, if required, needed to be constructed and so was the subject of the planning application. Only that needed to be removed from consideration by the members. In time, it will be for the DNO to consider the most appropriate mode and location for connection to the grid. It is for the DNO to consider all options and proceed accordingly.
43. For those reasons grounds one and two fail.

Ground Three: Was There Any Failure to Take Into Account a Material Consideration?

44. The claimant submits that the defendant failed to take into account material considerations as follows:

i) The defendant failed to take into account the ecological report. The defendant had to be satisfied that there was no significant detrimental ecological effect from the development. Without an ecological assessment of the connection tracks it was impossible for the defendant to be so satisfied. The effects of excavating a long access track were unknown without such an assessment;

ii) The defendant omitted to have regard to the UK's Solar Photovoltaic Strategy Part 2 – April 2014 which was a significant omission given that the development was entirely on a greenfield site. The strategy expressed a clear preference for development to take place on brownfield sites.

45. The defendant submits that it was not likely that the cable connection would have any significant effect on the environment. The defendant's approach of addressing environmental considerations by way of condition was, therefore, lawful and so there was no need to consider detailed ecological surveys as part of the application before it as a material consideration.
46. The UK Solar Photovoltaic Strategy Part 2 is not a policy document. It is a strategy. Whilst a strategy can be material no explanation has been given other than the preference for greenfield sites as to why the strategy is a material consideration in the circumstances of this case. If, in fact, the strategy is material then it would strongly support the case for solar photovoltaic development. Read as a whole the document does not seek to prioritise rooftop solar energy plants over greenfield solar development. It is supportive of the solar voltaic development wherever.
47. The defendant, in addition, had regard to Planning Policy Wales published in July 2014, Tan 8 Planning for Renewable Energy and the Welsh Government Practice Guidance on Planning Implications for Renewable and Low-Carbon Energy. All of those documents confirm that it is a matter of planning judgment whether any site is an appropriate location for a solar farm. That is what occurred here. The members took into account all relevant material considerations and came to a decision as a matter of their planning judgment.

Discussion and Conclusions

48. In my judgment the defendant took into account all relevant material considerations.
49. First, the ecological report was taken into account. An extended Phase One Survey had been carried out and submitted as part of a suite of application documents. The ecological report was considered by the Council Ecologist who, at all times, had no objection to the development. Although the impacts of the access and cabling routes should have been considered she was content that the impacts could be addressed through the proposed Landscape and Ecology Mitigation and Management Plan that was made a condition of the permission (condition 18). In addition, an updated Construction Environmental Management Plan was required to be updated which would take into account any amendments that needed to be made as a result of an updated ecological survey submitted to and approved by the defendant (condition 17).
50. The reason for the ecologist's view that it was preferable to have an updated report and that the matter could be dealt with by condition was because the risk to protected species (in particular, badgers, breeding birds and to a lesser extent bats) and the nearby SINC as a consequence of the construction of the route was low. Her recommendation of the original conditions was thus considered to be a low risk strategy.
51. To overcome the third party objection the officer recommended deleting the southern access route altogether. As the report said, that did not prevent the permission being implemented as there was an alternative route of access by the existing forestry track. Far from failing to take into account the ecological report, therefore, the reverse was the case. The defendant took the report into account and removed the area of potential uncertainty, even though it was low risk, namely, the southern access track, from the scope of the permission.
52. Second, the UK Solar PV Strategy Part 2 was a document published in April 2014 by the Department of Energy and Climate Change. It is not a planning policy document. Whilst documents published by other government departments can be material considerations this document, in my judgment, was not. It was a document seeking to promote further sustained growth for the domestic PV industry. It was supportive of well sited and well designed solar developments. It focussed on the ambition for key market segments and how they would be realised through innovation and partnership and benefits that would bring for jobs and investment in the UK, in addition to vitally important emissions reduction. It contained reference to the advantage of using existing built environment rather than previously undeveloped land. Part of the Solar Farm 10 Commitments best practice included:

"1. We will focus on non agricultural land or land which is of lower agricultural quality.

2. We will be sensitive to nationally and locally protected landscapes and nature conservation areas, and we welcome opportunities to enhance the ecological value of the land."

53. The document was thus not adding anything new to the planning advice contained within PPW, Tan 8 and the Welsh Government Practice Guidance referred to in paragraph 44 above. It was not something, therefore, that could "tip the balance" in the determination of the planning application. It was, therefore, not a material consideration.
54. For those reasons this ground fails also.

Other Matters

55. During the course of argument it became apparent that a further ground relating to habitats was emerging. In essence, the Claimant contended that the reliance on the Town and Country Planning (General Permitted Development) Order 1995 (GPDO) by the defendant to address any failure than might arise as a consequence of failing to carry out any ecological assessment in respect of alternative areas of land for cabling was misplaced as there was a gap in the legislation in Wales under the GPDO in respect of the duties of a planning authority under the Habitats Directive and the Conservation of Habitats and Species Regulations 2010.
56. As a result, I heard argument, insofar as it was possible, at the hearing before me and then adjourned the issue for further written submissions within an agreed timetable with which both parties complied.

Ground Four: What was the Effect of Article 3(1) of the Town and Country Planning (General Permitted Development) Order 1995?

57. The claimant submits that there is a gap in the permitted development legislation applicable to Wales as Article 3(1) of the Town and Country Planning (General Permitted Development) 1995 (the 1995 GPDO) refers to legislation that no longer exists (regulations 60 to 63 of the Conservation (Natural Habitats &c) Regulations 1994 (1994 Regulations)). It was not amended to make any reference to the Habitats Regulations 2010.
58. Article 3(1) of the 1995 GPDO reads:

"(1) Subject to the provisions of this Order and regulations 60 to 63 of the Conservation (Natural Habitats, & c.) Regulations 1994(1) (general development orders), planning permission is hereby granted for the classes of development described as permitted development in Schedule 2."

59. The text of Article 3(1) and its reference to regulations 60 to 63 of the 1994 regulations was exactly the same in both England and Wales after Article 3 was amended on 24 August 2011 until 15 April 2015 when it was superseded by Article 3(1) of the Town and Country Planning (General Permitted Development (England)) Order 2015. The updated Article 3(1) in England reads:

"(1) Subject to the provisions of this Order and regulations 73 to 76 of the Conservation of Habitats and Species Regulations 2010 (general development orders)(1), planning permission is hereby granted for the classes of development described as permitted development in Schedule 2."

60. The defendant submits the Interpretation Act 1978 is of relevance. Section 20(2) provides:

"(2) Where an Act refers to an enactment, the reference, unless the contrary intention appears, is a reference to that enactment as amended, and includes a reference thereto as extended or applied, by or under any other enactment, including any other provision of that Act."

61. Section 23(1) of the 1978 Act provides:

"(1) The provisions of this Act, except sections 1 to 3 and 4(b), apply, so far as applicable and unless the contrary intention appears, to subordinate legislation made after the commencement of this Act and, to the extent specified in Part II of Schedule 2, to subordinate legislation made before the commencement of this Act, as they apply to Acts."

62. The effect of section 23 of the 1978 Act is, therefore, that the law which applies to the interpretation of subordinate legislation is the same as that applying to a primary act.
63. The 1994 regulations were amended by the 2010 regulations in that regulations 60 to 63 were replaced in England and Wales by regulations 73 to 76 of the 2010 regulations. Under regulation 73 development "likely to have a significant affect on a European site… must not be begun until the developer has received written notification of the approval of the local planning authority under regulation 75."
64. Where it is intended to carry out development in reliance on permission granted by a general development order an application may be made in writing to the appropriate nature conservation body for their opinion as to whether the development is likely to have a relevant effect. On receiving such an application the nature conservation body must consider whether the development is likely to have such an effect. Where the nature conservation body has sufficient information to conclude on the effect of the development it must notify the applicant and the Local Planning Authority in writing: regulation 74. An application to the Local Planning Authority for approval under a general development order must, among other things, be accompanied by a copy of any relevant notification by the appropriate nature conservation body. If the nature conservation body state their opinion is that the development is not likely to have a significant environmental effect then that opinion has to be sent to the applicant by the Local Planning Authority. Regulations 75(6) and (7) read:

"(6) In any other case in which the application has been sent to the appropriate nature conservation body, the local planning authority must, taking account of any representations made by the appropriate nature conservation body, make an appropriate assessment of the implications of the development for the European site or European offshore marine site in view of that site's conservation objectives.

(7) In the light of the conclusions of the assessment the local planning authority may approve the development only after having ascertained that it will not adversely affect the integrity of the site."

65. It follows that there is no gap in the legislative framework in Wales as submitted by the claimant.
66. Were there to be any doubt, member states are obliged to interpret domestic legislation in a manner that gives it effect to European legislation where European legislation has competence. It follows that Article 3(1) of the 1995 GPDO must be construed so as to refer to legislation currently in force in Wales, that is the 2010 regulations, to give effect to the intention of the Habitats Directive so as to preserve, protect and improve the quality of the environment, including the conservation of natural habitats and of wild fauna and flora.
67. For those reasons there is nothing in the point raised by the claimant.
68. It follows that, in respect of the pleaded case, as developed orally and in later written submissions, I would have granted permission but refused the application for substantive judicial review on all grounds.
69. In the claimant's response to the defendant's submissions on Article 3(1) of the GPDO further argument is raised as to the legality of the entire GPDO applicable in Wales. That is a substantial new point which is not contained in the summary of facts and grounds, nor referred to in the claimant's skeleton arguments nor was it raised in oral argument. No application to amend any pleadings has been made. In my judgment, it is far too late to raise a submission of that nature in the context of these proceedings. There must be finality in a legal process which has to take place in accordance with the CPR. What is proposed now by the claimant is neither of those matters. I refuse the claimant permission to raise that issue in these proceedings.
70. This claim fails. I invite submissions as to the order and costs.