UK: Ministerial Intervention In Wind Farm Appeals

Last Updated: 2 May 2014
Article by Geoffrey Jordan

Developers of wind farms have suffered a series of set backs in recent months as the Government continues to send out mixed messages about its support for renewable energy.

The Government Guidance

In July last year the Government issued Planning Practice Guidance for Renewable and Low Carbon Energy, which confirmed that the need for renewable energy does not automatically override the local environmental and heritage protections or the concerns of local communities.

At the time Local Government Secretary Eric Pickles said "The views of local people must be listened to when making planning decisions. Meeting Britain's energy needs should not be used to justify the wrong development in the wrong location".

The new Planning Practice Guidance reaffirms that, in determining planning applications, it is important to be clear that:

  • the need for renewable or low carbon energy does not automatically override environmental protections;
  • cumulative impacts require particular attention, especially the increasing impact that wind turbines and large scale solar farms can have on landscape and local amenity as the number of turbines and solar arrays in an area increases;
  • local topography is an important factor in assessing whether wind turbines and large scale solar farms could have a damaging effect on landscape and recognise that the impact can be as great in predominately flat landscapes as in hilly or mountainous areas;
  • great care should be taken to ensure heritage assets are conserved in a manner appropriate to their significance, including the impact of proposals on views important to their setting;
  • proposals in National Parks and Areas of Outstanding Natural Beauty, and in areas close to them where there could be an adverse impact on the protected area, will need careful consideration;
  • protecting local amenity is an important consideration which should be given proper weight in planning decisions.

On 10 October 2013 Mr Pickles announced a temporary change to the appeals recovery criteria, for a period of 6 months. He explained his intention was to "give particular scrutiny to planning appeals involving renewable energy developments so that I could consider the extent to which the then new practice guidance was meeting our intentions."

Although Secretary of State for Energy and Climate Change Ed Davey had stressed that the Government "remained committed to the deployment of appropriately sited on shore wind as a key part of a diverse, low carbon and secure energy mix..." the number of planning approvals for wind farms in England has fallen in recent years – in 2008/9 around 70% of applications were approved whereas only 35% were approved in 2012/13.

Recent decisions

Following Pickles pledge last October to recover more renewable energy appeals for his own determination, of 8 appeals he has determined he has dismissed 7 of them.

In February he refused an application for a four turbine wind farm near Highbridge in Somerset which was recommended for approval by his Inspector. Although he agreed with the Inspector that the character and setting of the Quantock Hills AONB and Mendip Hills AONB would not be harmed he found that the landscape and visual impact of the scheme on view points within about 2km of the appeal site would be "significantly adverse" and would not be outweighed by the scheme's "considerable benefits" in terms of addressing the need for renewable energy.

The decision has raised concerns about the Secretary of State making decisions on visual impact without having made a site visit. Inspectors make their recommendations on visual impact based on first hand experience following a site visit. It would be very unusual for the Secretary of State to have any such first hand experience, he would not normally undertake any site visit but would base his decision upon documentary evidence and visualisations.

We understand that the developer is threatening a challenge to what he considers to be "a political intervention in the planning process" and "anti wind posturing". It will be interesting to see what the High Court make of a decision made on grounds of visual impact without the benefit of a site visit, if this is included as a ground of challenge.

Heritage issues

It is not just the Secretary of State that has been thwarting wind farm development in recent months. In February the Court of Appeal upheld a High Court decision to refuse a four turbine wind farm in Northamptonshire. The application had been allowed by the Inspector on appeal but the decision was challenged by the National Trust and English Heritage because of its impact on the setting of a number of nationally significant listed buildings.

The Inspector allowed the appeal, finding that the renewable energy benefits out weighed the "less than substantial" harm to the setting of the heritage assets. The Court of Appeal referring to the Planning (Listed Buildings and Conservation) Act 1990 for the correct test, found that the Inspector should have given "considerable importance and weight" to the desirability of preserving the setting of listed buildings.

The case was followed by the Secretary of State in a recent decision to refuse permission for a 9 turbine development proposed in Leicestershire. The Inspector found that the impact of the development on a nearby Grade II listed church would be "significant but less than substantial" but Pickles overruled him. In his decision the Secretary of State gave substantial weight to the generation of renewable energy and jobs but "against that however he gives substantial weight to the harm to Welby Church and significant weight to the impact on both the landscape and the other affected heritage assets....."

Written Ministerial Statement 9 April 2014

In a further statement Eric Pickles announced an extension to the appeals recovery policy saying "I am pleased to confirm that the guidance is helping ensure decisions do reflect the environmental balance set out in the Framework. I note, for example, that prior to the guidance, more appeals were approved than dismissed for more significant wind turbines. Since the guidance, more appeals have been dismissed than approved for more significant turbines.

I am encouraged by the impact the guidance is having but do appreciate the continuing concerns in communities. I also recognise that the guidance is still relatively new and some development proposals may not yet have fully taken on board its clear intent. Therefore after careful consideration I have decided to extend the temporary change to the appeals recovery criteria and continue to consider for recovery appeals for renewable energy developments for a further 12 months.

For the avoidance of doubt, this does not mean that all renewable energy appeals will be recovered, but that planning ministers may recover a number of appeals"

Conclusion

In June last year Eric Pickles pledged "to give local communities a greater say on planning, to give greater weight to the protection of landscape, heritage and local amenity. Government will deliver these changes in collaboration with industry and communities over the next 12 months".

The Government appears to have delivered the change promised but only at a cost to the delivery of renewable energy in terms of delay and uncertainty. With a General Election due in 2015 it is perhaps unsurprising that it has extended its powers to intervene so that the picture is not likely to improve significantly for those wishing to develop on shore wind farm sites for some time.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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