Judge rejects council bid for planning statutory review of 49MW battery energy storage facility

His Honour Judge Jarman KC dismissed all four grounds argued, one of which concerned alleged defects in an alternative sites analysis and the other three related to noise.

The council brought the case against the Secretary of State for Housing, Communities and Local Government, developer Anesco and the Staffordshire Gardens & Parks Trust Company, though the latter took no part.

Anesco had applied to build a 49.35MW battery energy storage facility at Great Barr, and after Walsall refused consent it appealed and a planning inspector noted the facility had to be built in proximity to an adequate grid connection.

A suitable connector was available within some 550m of the site and a search within a two-kilometre radius had found no suitable alternatives.

The inspector saw no reason to dispute that conclusion, and said no-one had put forward any otter site. He concluded the development would not fundamentally undermine the purposes of the green belt.

Walsall’s first ground of challenge was that the inspector failed to supply legally adequate reasons for his conclusion that the analysis was a robust assessment and/or acted irrationally by implicitly accepting its conclusions.

The council argued that the inspector’s reasoning was inadequate given the analysis had excluded alternative sites such as those with potential for housing, and the inspector did not explain why he concluded the analysis was robust.

Walsall argued this was irrational; because the analysis wrongly excluded sites with the potential for higher value development.

In response, the Secretary of State said the proposed site could make an early contribution to the clean power pathway to net zero and it was not irrational to conclude that other sites were not viable alternatives for this purpose whatever their attractions for other kinds of development.

HHJ Jarman said: “I accept those submissions. In my judgment the [decision letter] read fairly as a whole shows clearly that the inspector accepted that the proposed site had the ability to make an early contribution to clean power.

“Further it is tolerably clear why in that context the inspector found that the [sites analysis] was robust in concluding that there were no alternative sites, given the grid connection requirements.”

He rejected the three future grounds related to noise. The judge said: “The inspector was clearly aware of the limitations of the advice and lack of specific evidence, but was clearly entitled to use his experience and planning judgment in determining what weight in all the circumstances to give to the advice.

"The inspector was also entitled, in my judgment, to conclude as he did, as to the difficulties of obtaining specific evidence for the reasons given. In those circumstances the inspector was entitled to proceed without further inquiry.”

Conditions imposed clearly met NPPF requirements in mitigating and minimising the potential adverse impacts of noise, HHJ Jarman found.

He ordered Walsall to pay the costs of both Anesco and the Secretary of State.

Mark Smulian