Legal Update

WIND FARMS AND CHANGES TO THE PLANNING SYSTEM

Background

With Government targets to reduce CO2 emissions by 60% by 2050 and to deliver 10% of electricity supply from renewable energy by 2010, there is a real emphasis to promote and encourage development of renewable energy sources as is evident from Planning Policy Statement 22 (“PPS22”).  Perhaps one of the most contentious areas of renewable energy in terms of planning is wind farms.

Current Policy

Paragraph 16 of PPS22, states that “as most renewable energy resources can only be developed where the resource exists and where economically feasible, local planning authorities should not use a sequential approach in the consideration of renewable energy projects (for example, by giving priority to the re-use of previously developed land for renewable technology developments)”.  PPS22 also makes it clear that local nature conservation designations should not be used in themselves to refuse planning permission for renewable energy developments.  In relation to wind farms, the problem usually comes in respect of their proposed location which can often be in prominent areas of countryside or coastal areas as optimum performance depends largely on siting.  Whilst off shore projects will go someway to generate substantial amounts of renewable energy, PPS22 makes it clear that this should not justify lower targets being set for on shore projects.

As applications of this nature are often regarded as highly contentious, there is concern at the length of time it can take for such applications to be determined.  It can be the case that even if planning permission is granted, the expense of securing the consent and then implementing it can result in the project never being delivered.

Proposed Changes

The Planning Bill attempts to streamline the planning system for major projects and in relation to renewable energy a major project will constitute the development of onshore renewable energy above 50MW and offshore projects above 100MW.

Planning applications in respect of major projects will be dealt with by an Infrastructure Planning Commission (“IPC”) who will process the application based on National Policy Statements (“NPS”).  Whilst applications would be the subject of public consultation, the decision as to whether or not to grant development consent would carry no Statutory right of appeal and the only means of contesting that decision would be by way of Judicial Review.  Furthermore, the preferred method of examining applications for development consent will be through written representations.  The problem with written representations is that whilst they are appropriate in certain circumstances, they may not provide an adequate forum properly to examine evidence, which is crucial where the evidence is in dispute, particularly expert evidence.

The IPC may choose not to determine the application in accordance with the NPS if it is considered that the adverse impact of the proposed development outweighs any benefit.  It is likely that this will form the basis for most challenges, although if, as stated above, evidence in respect of the application is not properly tested it will be difficult for the IPC properly to carry out this exercise.  This could lead to the IPC making a planning judgement based on evidence which has not been properly examined and although the final decision could be challenged by way of Judicial Review, it is a well established principle that courts will not interfere with a decision based on planning judgement unless that decision is perverse, irrational or Wednesbury unreasonable.

It will be too late to question the merits of an NPS in relation to a planning application if the NPS has already been adopted and the six week period for any challenge has expired.  It is therefore crucial that those seeking to question the merits of NPS actively engage in the consultation process at the earliest opportunity.

Developers should ensure that all relevant consultees are properly consulted prior to submission of an application, which should flush out any concerns and potential objections to ensure that once an application has been submitted it addresses as many legitimate concerns as possible.  Developers should also have full regard to the interim guidelines which have been drawn up between the Ministry of Defence, Civil Aviation Authority, Department of Trade and Industry and the British Wind Energy Association.

Conclusion

When disposing of an application for development consent it is important that a proper balance is struck between any adverse impact of the development compared to its benefits. In a time of high fuel prices and actively trying to tackle climate change by cutting carbon emissions, changes to the planning system in respect of major projects and the introduction of specific policies to address renewable energy are most welcome.  It is hoped that major projects in respect of renewable energy will be pushed through the planning system in a speedy and efficient manner, which will help achieve Government targets.  However, it is essential that with more and more pressure on the Government to meet targets and those being imposed by Europe, that we do not see legitimate amenity concerns and the active participation and engagement of the public sacrificed.