UK Planning Act 2008: Section 104 NPS Solar Decisions Guide
Updated 6 September 2026 · By SolarNevs Research Desk, Dealer surveys + verified sources · 1 source · Method ↗
Key Takeaways
- Codified under Section 104 of the Planning Act 2008, the Secretary of State must determine solar DCO applications in accordance with relevant National Policy Statements.
- Anchors major solar planning examinations to National Policy Statements NPS EN-1 (Overarching Energy) and NPS EN-3 (Renewable Energy Infrastructure).
- Imposes a statutory duty under Section 104(2)(b) to have regard to Local Impact Reports (LIRs) submitted by host local authorities.
- Establishes narrow statutory exceptions under Sections 104(4) through 104(8) where the presumption in favor of NPS policy does not mandate approval.
- Codifies the crucial Section 104(7) balancing test where development consent may be refused if adverse local impacts outweigh clean energy benefits.
Statutory Purpose of Planning Act 2008 Section 104
Enacted under Part 6, Chapter 1 of the Planning Act 2008 (c. 29), Section 104 establishes the substantive decision-making framework for Nationally Significant Infrastructure Projects.
Where designated National Policy Statements have effect, Section 104 creates a robust legal presumption of consent, insulating national energy policy objectives from local planning conflicts.
Section 104 Determination Framework Matrix
The Secretary of State evaluates utility-scale solar applications across structured statutory tests:
Statutory Provision | Legislative Mandate | Application to Solar DCO Consenting |
|---|---|---|
NPS Presumption | Section 104(3) Must decide application in accordance with relevant NPS | Establishes urgent national need for large-scale solar under NPS EN-1 & EN-3 |
LIR Consideration | Section 104(2)(b) Regard to any local impact report submitted by deadline | Evaluates county and district council reports on landscape, traffic, and ecology |
Relevant Matters | Section 104(2)(d) Regard to any other matters important and relevant | Considers cumulative impact with adjacent solar schemes and battery storage |
International Law | Section 104(4) Exception if decision breaches international obligations | Protects Ramsar wetlands, transboundary habitats, and climate treaty duties |
Statutory Duty | Section 104(5) Exception if decision breaches duty under any enactment | Prevents conflicts with duties under the Habitats Regulations and EIA directives |
Legality Test | Section 104(6) Exception if decision would be unlawful under enactment | Bars consent orders that violate public law or statutory prohibitions |
Balancing Exception | Section 104(7) Exception if adverse impact would outweigh its benefits | Core planning battlefield: weighing local landscape loss against net zero generation |
Prescribed Condition | Section 104(8) Exception if condition for deciding otherwise is met | Accommodates specialized secondary legislative criteria where prescribed |
Developer Strategy for Securing Section 104 Consent
To maximize alignment with Section 104 decision standards:
- Directly Benchmark Against NPS EN-1 and EN-3: Structure the Planning Statement to demonstrate full compliance with specific solar siting, landscape, and grid connection policies.
- Mitigate Host Authority Concerns in Local Impact Reports: Engage proactively with local planning authorities during pre-examination to resolve issues highlighted in their Section 104(2)(b) LIRs.
- Build an Overwhelming Benefit Case under Section 104(7): Quantify renewable megawatt-hour yield, biodiversity net gain margins, and local economic investment to ensure benefits decisively outweigh adverse impacts.
Frequently asked questions
What is the primary statutory presumption for DCO decisions under Section 104(3)?
Under Section 104(3), the Secretary of State must decide the application in accordance with any relevant national policy statement, except where specific statutory exceptions apply (August 2026).
What matters must the Secretary of State have regard to under Section 104(2)?
The Secretary of State must have regard to any relevant national policy statement, any local impact report submitted before the deadline, prescribed matters, and important/relevant matters (August 2026).
When does the adverse impact balancing exception apply under Section 104(7)?
Under Section 104(7), the exception applies if the Secretary of State is satisfied that the adverse impact of the proposed development would outweigh its benefits (August 2026).
What other statutory exceptions allow refusal contrary to an NPS?
Exceptions apply if deciding in accordance with the NPS would breach UK international obligations (104(4)), breach statutory duties (104(5)), or be unlawful (104(6)) (August 2026).
References
- legislation.gov.uk: Planning Act 2008 Section 104 — accessed 31 August 2026
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