Project Nutcracker: Solar Court Victory Shows Hopeless Cases Can Now Be Knocked Out Fast

New NSIP judicial review reforms have knocked out the Stonestreet Green Solar DCO challenge in just four months, with no right of appeal. What does this landmark ruling mean for infrastructure developers? 

It was a big day in court for our client, Evolution Power, last Friday. The judicial review brought by a parish council against the Stonestreet Green Solar development consent order (DCO) was dismissed by the High Court as “totally without merit”. 

Under the Government’s recent reforms this means that it’s the end of the road for the case. There can be no request made to the Court of Appeal to reverse the High Court’s refusal of permission for the case to be heard. It was disposed of within just four months, much more quickly than most judicial reviews of nationally significant infrastructure projects (NSIPs) to date. If the target timescales set by the Government for the listing of the hearing had been met, it could in fact have been determined in just two months.

As there is much interest in this case and what it tells us about the effectiveness of the Government’s reforms of judicial review, I give some more detail and reflections in this article. 

Huge thanks to my colleagues Charlotte Dyer and Leon Culot, and our barrister Hugh Flanagan, for their excellent work in achieving this historic outcome.

A quick reminder of how our court system works 

We have three tiers of courts relevant to judicial review: the High Court, the Court of Appeal and the Supreme Court. Anyone bringing a judicial review (a “claimant”) against the grant of a DCO must do so within six weeks of the project being granted consent. Prior to the Government’s reforms, the first step when a claim was filed was for a single judge to review that claim “on the papers” (ie not in court at all) to determine whether it should be given “permission” to proceed to full consideration. 

Normally claimants bring multiple grounds of claim in respect of an NSIP they oppose, hoping at least one will stick. Even if the judge refused permission for all grounds “on the papers”, claimants previously had the right to “renew” their claim and have all grounds heard orally at a hearing in the High Court. In practice, most claimants availed themselves of this right in the case of NSIPs. For this reason, Lord Banner recommended that this on the papers stage was cut out for all judicial reviews of NSIPs. The Government implemented this. 

All such claims now have to get the High Court’s “permission”, at a hearing, to get off the starting block.

If the High Court gives permission for a claim to be heard, then it gets heard in full (a “substantive hearing”) by the High Court either (a) at a later date; or (b) there and then as part and parcel of the permission hearing (in what is known as a "rolled-up" hearing). 

It used to be the case that if the High Court refused permission to hear the case, the claimant could (in all cases) still appeal that permission decision up to the Court of Appeal. Very often the Court of Appeal refused permission to appeal, but that process still added time and additional costs.

However, following the Government’s reforms there is an exception to this right of appeal: where grounds of the claim are considered “totally without merit.” This was the case for all the grounds of the Stonestreet Green Solar claim, as explained below. 

Stonestreet Green Solar: timeline to success 

Stonestreet Green Solar is a large solar and energy storage project located near Ashford in Kent which will connect into National Grid’s Sellindge Substation. As the project’s capacity is more than 50 megawatts, a DCO was required (the threshold has since increased to 100 megawatts for solar). 

The timeline of the case was as follows:

Another of the Government’s reforms based on Lord Banner’s recommendations was the introduction of various target timescales for the key stages of the court process, and clarification that NSIP judicial reviews are always subject to existing target timescales for “significant” claims. One of those target timescales is that applications for permission should be determined within three weeks of the filing of the Acknowledgement of Service. This deadline was not met in this case, in part due to the availability of the parties to the claim – which impacted the earliest available hearing date. It is interesting to note that the case could in fact have been knocked out in just two months (as opposed to four) if such availability challenges had not arisen and the court had been quicker to list the hearing. 

The three grounds of challenge

There were three grounds of claim. This is relatively few compared with other NSIP judicial reviews we have worked on. The claim brought against Sizewell C’s DCO, for example, had seven grounds. Some NSIPs have even more.

The fact that so few grounds were brought may partly reflect the fact that solar NSIPs are relatively simple in nature and impacts, making it harder to find grounds with even a passing appearance of substance.

The grounds all essentially related to whether the Secretary of State gave adequate reasons for why the DCO had been granted, with regard to harm to heritage assets, consistency with a nearby (much smaller) solar scheme and the consideration of alternatives to the project. 

The judge (Mrs Justice Lieven) held each of the grounds to be “unarguable” (ie that they had no realistic prospect of success). The judge commented that the claim was a classic example of the claimant not reading a decision letter or examining authority’s recommendation report as a whole, but instead seeking to apply an exegetical, overly legalistic analysis. 

After concluding that all three grounds were unarguable, she then went on to rule that the claim as a whole was “totally without merit”, meaning that the case was “truly bound to fail” – a high bar indeed. As a result of this ruling, the claimant could not seek leave to appeal (thanks to the Government’s recent reform). It is worth noting that the judge could in fact have found that despite each of the three grounds being “unarguable”, the high bar of the claim overall being “totally without merit” was not met. But in this case she felt that this high bar was met.

Not all High Court judges who hear planning cases have practised as planning barristers. It happens that Mrs Justice Lieven was previously a leading planning barrister. This may have helped her confidently reach a view on the (lack of) merits. The permission hearing was also relatively long (more than half a day) and the judge noted that she had considered the papers in some detail. 

The counter-factual

So how would this case have played out if it were not for the Government’s reforms? Prior to the reforms a claimant could have appealed Mrs Justice Lieven’s decision to the Court of Appeal, who would have had to decide whether to grant permission to appeal. The Secretary of State and our client would have had to incur time and legal costs reviewing the claimant’s “Appellant’s Notice” and likely drafting their own “Respondents’ Statements”. Even if the Court of Appeal refused permission to appeal, which they likely would have done given all grounds were certified totally without merit, this decision could have added several months of uncertainty to the overall process.   

To what extent can we expect more NSIP claims to be deemed “totally without merit”?

The fact that the Stonestreet Green Solar judicial review was disposed of within four months of being brought is certainly an endorsement of the “totally without merit” reform. It shows that for simple projects, where objector groups are really scraping the bottom of the barrel to find grounds of complaint, a full stop to proceedings can be given by the court at a relatively early stage. 

Solar developers don’t always have the deep pockets of some other types of developers. They and their funders are unlikely to be able or willing to fund implementation of a DCO in parallel to fighting a judicial review, mindful that the DCO could be quashed in a worst case ruling. Disposing of a judicial review quickly is therefore all the more important for such developers.

Most planning judicial reviews are brought as a form of protest against the project or as a delaying tactic in the hope that the uncertainty created by the judicial review will cause the project to lose its funding or otherwise act as a delay to implementation. Being able to dispatch such claims quickly is important for maintaining confidence in the planning process.

My note of caution is simply that for NSIPs that are more complex and impactful, and therefore spawn challenges with a greater number of grounds, it is less likely that all grounds will be certified “totally without merit”. For example, whilst all of the grounds in the Sizewell DCO challenge were dismissed as unarguable, not all were certified at the High Court stage as “totally without merit”. Therefore, even under the new reforms, the claimant in that case would still have been able to request from the Court of Appeal permission to appeal. Further, where the applicable case law and factual circumstances are more nuanced, judges may be more reluctant to certify grounds as totally without merit, thereby invoking this powerful reform. Judges are a law unto themselves on such matters (quite rightly)!

There are at least two other NSIP judicial reviews currently making their way through the system, whose progress will be watched carefully. They include a challenge to Gatwick Airport’s Northern Runway Project DCO on which my team is acting. The decision on that case is due next week following January’s "rolled-up" hearing. We await it with bated breath.

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