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39: Fenwick Solar Farm, Sizewell C and EIA case law
This week’s bumper edition looks at the Fenwick Solar Farm decision, an important Scottish case about the environmental assessment for a wind farm and its associated grid connection, the latest Sizewell C challenge and the implementation of the Planning and Infrastructure Act 2025.
The Secretary of State (SoS) has granted consent for the Fenwick Solar Farm Project. The Order can be found here, the decision letter here and the Examining Authority’s report (recommending approval) here. The project is located to the north of Doncaster and has a generating capacity of up to 237.5MW. The developer is Boom Power.
There were only 55 relevant representations, three issue specific hearings, one compulsory acquisition hearing and 595 documents on the Planning Inspectorate project page, which is low these days. The decision letter is a mere 30 pages and was issued on time. Here are a few takeaways:
In an important opinion delivered on 17 February, Scottish Ministers’ decision to approve the Wull Muir wind farm in the Scottish Borders was quashed by the Court of Session. The challenge was brought by Raeshaw Farms Limited, which is owned by billionaire investor Louis Bacon. Raeshaw operates a farm and estate close to the proposed wind farm and objected to the development.
The Court was considering whether the wind farm and its required off-site grid connection constituted a single project for the purposes of environmental impact assessment (EIA) (or was the grid connection a separate project the environmental effects of which could be assessed later). The reporter’s decision addressed this issue in the following terms (which merit setting out in full):
“An objector asserts that, as the appellant has not detailed the grid infrastructure that will be necessary to connect the proposal, it is impossible for the full environmental effects of this proposal to be assessed. I disagree. Whatever grid connection solution is ultimately proposed will (if it requires planning permission) be subject to its own evaluation. It is not part of the current proposal. The objector’s reference to the term “salami slicing” is misdirected. That properly refers to an attempt to circumvent the objectives of the EIA Directive and regulations by dividing what is in reality a single project into separate parts. In this instance, there has been no attempt to avoid the need for an EIA. The development proposal has been subject to EIA in the normal way and if a subsequent proposal for a grid connection were EIA development, that too would require to be assessed in accordance with the EIA regulations”.
The Court rejected this analysis. It found as follows:
The case has been remitted back to Scottish Ministers to consider afresh the issue of whether the whole project requires an EIA assessment. This is important. The court was not saying that a wind farm and grid connection will always be a single project for EIA purposes. But you do need to consider whether they are, properly, the same or separate projects.
Does this simply mean that, in many cases, a pragmatic approach may well be to accept that a generating station and associated grid connection are the same project, particularly where that grid connection will serve the generating station alone?
The level of assessment and reporting will then depend on the information reasonably available at the time of preparing the Environmental Statement (ES). After all, the purpose of an ES is to include the information reasonably required for reaching a reasoned conclusion on the significant effects of development on the environment, taking into account current knowledge and methods of assessment and as far as natural changes from the baseline can be assessed with reasonable effort on the basis of the availability of environmental information and scientific knowledge. Some guidance from Government on these important issues would be welcome.
The Court of Appeal has dismissed the latest attempt by Together Against Sizewell C Limited (TASC) to judicially review decision-making in relation to the Sizewell C Development Consent Order (DCO), granted in 2022. The Court of Appeal’s order including reasons can be found here.
This particular challenge centred on the publication of an external hazards report by the Office for Nuclear Regulation in 2024 as part of the nuclear site licensing process. Having considered that report, TASC wrote to the Secretary of State in 2025 requesting that he exercise his powers under the Planning Act 2008 to change or revoke the DCO. The SoS declined to do so.
TASC alleged that the external hazards report included a commitment by Sizewell C Limited to build two overland flood barriers (OFBs) to protect the site from flooding, should climate change be worse than is reasonably foreseeable. As the OFBs had not been proposed as part of the project considered during the examination process for the DCO, TASC said their impact on designated nature conservation sites and the environment, and consideration of alternative mitigation solutions, had not been assessed as part of the appropriate assessment of the project under the Conservation of Habitats and Species Regulations 2017.
The Court of Appeal rejected this argument. It held there was fundamental uncertainty as to whether and if so, when OFBs may need to be provided in this case. The inchoate nature of any scheme or design for their provision meant that it was open to the SoS, as competent authority, to take a staged approach and to conclude that consideration of cumulative effects of any later change to the project, if and when OFBs were subsequently applied for, may be deferred to that later stage. Echoes, then, of the Wull Muir decision above – multi-phase consenting and assessment is a tricky and much litigated issue.
Interestingly, the High Court had declared the case totally without merit. Section 13 of the Planning and Infrastructure Act 2025 provides that no appeal shall lie to the Court of Appeal from a refusal to apply for judicial review in a case within section 13 or 118 of the Planning Act 2008, if the High Court decides that the application for permission for judicial review is totally without merit. Section 13 of the 2025 Act only came into force on 18 February 2026, so did not apply in this case (and I think it is arguable that it was not a case within section 13 or 118 in any event).
Finally, whilst on the subject of the Planning and Infrastructure Act 2025, a raft of further provisions came into force on 18 February. I have mentioned s13 above. The other provisions of Part 1 (Infrastructure) that came into force on 18 February are:
For those interested in the full list, it can be found here. The next date for your Planning and Infrastructure Act diaries is 1 April 2026, when (only) s91 comes into force (this requires Natural England to publish an annual report on the exercise of its functions in relation to environmental delivery plans). There is still plenty that needs to be commenced though, perhaps most notably the (effective) abolition of pre-application consultation under s5.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at February 2026. Specific advice should be sought for specific cases. For more information see our terms & conditions.
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