There have been various developments in relation to UK on and offshore wind power over the summer.
Lease Extensions
On 6 July 2009, the Crown Estate announced plans to offer operators of Round 1 and 2 offshore wind farms the opportunity to extend their leases to a maximum of 50 years to allow them to plan for future "repowering" of projects with new turbines.
Site Area Extensions
Then on 29 July 2009, the Crown Estate announced that it also plans to give Round 1 and 2 operators the chance to apply for extensions to their existing site area. This offer applies to any Round 1 or 2 project that is already operational, under construction, consented but awaiting construction or currently awaiting a decision on the grant of the necessary statutory consents. The aim is to try and deliver additional electricity generation capacity in a relatively short timescale from sites that already have a grid connection (and thereby try to assist the UK to meet its 15 per cent by 2020 renewable energy target).
Developers have until 9 September 2009 to register their interest in extending their site area. This will then be followed by a detailed application process.
Licenses for submarine transmission cables
On 27 July 2009, a consultation was launched on a technical change to offshore wind licensing requirements necessitated by the new regulatory regime for offshore electricity transmission which is expected to go live in mid-2010.
Under the new regime, responsibility for submarine transmission cables above 132kV connecting to wind farms will pass from the wind farm operator to new Offshore Transmission Owners (OFTOs) to be selected by competitive tenders run by Ofgem (the first of which is now running). Without the proposed amendments, a licensing gap exists because current legislation would not allow the regulator (the Marine and Fisheries Agency (MFA)) to impose marine environmental protection conditions on the OFTO in respect of the installation of such cables.
Defra proposes to amend the relevant legislation so that new OFTOs will also be required to obtain a licence (under Part II of the Food and Environment Protection Act 1985 (FEPA)) in their own right in order to install submarine electricity transmission cables above 132 kilovolts (kV) connected to offshore wind farms. FEPA licences may impose environmental protection conditions lasting for up to three years after installation of the cables. Ultimately, these arrangements will be superseded by regulations to be made under the forthcoming Marine and Coastal Access Act. The consultation closes on 26 October 2009.
Guidance on siting of onshore wind farms
Also in July, Natural England (NE) published for consultation draft guidance on the siting of onshore wind farms.
NE is one of the consultation bodies in England for proposals for major energy infrastructure developments that will be decided by the new Infrastructure Planning Commission from 2010 (see our April 2009 Newsletter). It may object if it takes the view that an application for a wind farm is likely to cause unacceptable harm to a protected site, species or landscape, or that a developer has provided insufficient information about the likely environmental impacts of a proposed wind farm. It therefore plays an important role in the government's plans to encourage more wind power development and the UK's ability to meet its renewable energy targets.
The draft guidance proposes a criteria-based approach for identifying where and how onshore wind farms can be sited in England. NE will expect opportunities to avoid, reduce or minimise potential impacts through good site selection, responsive design and other mitigation measures to be identified in the environmental impact assessment.
The final version of the guidance is expected to be published this autumn. The consultation closes on 2 September 2009.
The Derbyshire Dales case
On 17 July 2009, the High Court of England & Wales handed down an important ruling for the future of wind power development in the UK in the case of Derbyshire Dales District Council & Another v Secretary of State for Communities and Local Government and Another.
The case involved an application for planning permission for the erection of four wind turbines, a substation and ancillary equipment close to the boundary of the UK's Peak District National Park.
The local planning authority refused planning permission in July 2007 and the developer appealed. In September 2008, a planning inspector allowed the appeal and granted permission. The planning authority in turn appealed on the grounds that the inspector had erred in law. It argued that the inspector should have considered whether the need for the wind energy development could be met on some other site which might cause less harm. It also argued that regional targets for renewable energy were not relevant to individual planning applications.
Generally speaking, the law states that the fact that alternative land exists that might be more suitable for a development does not justify refusing permission for the land that is the subject of the application. However, if there are clear planning objections to development on a particular site, it may be relevant and indeed necessary to consider whether there is a more appropriate site elsewhere. This is especially likely where the development is expected to have significant adverse effects and the main argument in support of the development is that the need for the development outweighs its planning disadvantages.
The High Court (per Lord Justice Carnwath) dismissed the local planning authority's appeal.
Provisions in the National Parks and Access to the Countryside Act 1949 (NPACA 1949) and relevant planning policies required that special regard should be paid to protecting the National Park. However, there was no express or implied obligation to consider alternative sites.
The key planning policy statement (PPS22) states that proposals must demonstrate how environmental and social impacts have been minimised through "careful consideration of location." The court accepted that this might require a developer to demonstrate the particular merits of the chosen site. However, it did not mean that in every case the person determining the application had to review potential alternatives. This was a matter of planning judgment.
In addition, the planning guidance set out in the PPS1 supplement requires regional planning bodies to set regional targets for renewable energy generation in line with PPS22, and ensure these are consistent with the government's national targets.
The inspector had interpreted this as meaning that an individual proposal should not automatically be refused if the target had been met or allowed due to a shortfall. However, he had also concluded that regional targets must be a relevant consideration when considering individual planning applications. The court found no legal objection to the inspector's approach. The case shows that renewable energy targets can work in favour of the applicant for planning permission.
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