Out-Law News | 13 Oct 2022 | 4:22 pm | 2 min. read
An attempt by the UK prime minister to ban the development of solar power on farmland in England could “struggle to survive” a judicial review, according to one legal expert.
Gareth Phillips of Pinsent Masons said any executive action taken by Liz Truss to change the classification of large swathes of agricultural land in England – making it harder to build new solar projects on it – would be susceptible to legal challenges. “If the prime minister did so without the consent of the relevant government departments, her decision would likely face a judicial review. There is a group of solar power developers that is ready to make a claim if the need arose.”
His comments came amid reports of disagreements within the government over the solar power ban. Climate minister Graham Stuart told the environmental audit committee in parliament on Wednesday that the UK needs “significant growth in both ground-mount and rooftop solar panels” to meet the fivefold increase in solar power generation set out in the British energy security strategy.
But the prime minister is pressing ahead with a plan to ban solar projects from almost two-thirds (58%) of agricultural land in England – equivalent to roughly 41% of its total land area. During her leadership campaign, Truss described solar panels as “paraphernalia” and pledged that England would “not lose swathes of our best farmland to solar farms” if she was elected.
With Truss’ backing, environment secretary Ranil Jayawardena has asked officials at the Department for Environment, Food and Rural Affairs (Defra) to reclassify ‘best and most versatile’ (BMV) land, which is prioritised for farming, so that it includes lower-quality grade 3b land. Land in England is graded from 1 to 5, with BMV currently incorporating grades 1 to 3a. The reform would block most new solar power projects, which are often built on grade 3b land.
However, Stuart told MPs that his department was discussing the proposals with the Department for Business, Energy and Industrial Strategy (BEIS). According to the Guardian, secretary of state for BEIS, Jacob Rees-Mogg, who would have to approve Jayawardena’s plans, is opposed to the reform and believes it is “unconservative” to tell farmers “what they can and cannot do with their land”.
Despite the impasse, a spokesperson for the prime minister confirmed on Monday that her plan to ban solar from agricultural land would go ahead, raising the prospect of Truss taking executive action to implement the planning reforms. They said Truss “doesn’t think we should be putting solar panels on productive agricultural lands,” and referred to unsubstantiated claims that solar projects built on farmland can threaten food security.
Phillips said that BEIS opposed Defra’s proposals because it would undermine energy security and decarbonisation, while the Department for Levelling Up (DLUCH) – which would also have to approve the changes because it oversees planning policy – was concerned that the move could undermine economic growth.
He warned that if Truss took executive action to implement the reforms without the consent of either department, her decision would “struggle to survive a claim for a judicial review” that could be brought on grounds including “irrationality, failure to follow the proper process, and failure to comply with climate change policy and legislation.”
Phillips added: “Even if the reclassification made it into policy, it would not bind BEIS in the same way as legislation. It would be policy to weigh in the balance with those relating to energy need and security, and climate change. Rees-Mogg could lawfully conclude that energy security and need outweigh the need to protect 3b land, just as he could now in respect of grade 1-3a land.”
23 Sep 2022