8 April 2014 - Regensw
Recent Developments: Onshore Wind Sarah Holmes 8 April 2014
Onshore wind on hold
11 October 2013: SoS announces a temporary 6 month revision of the appeals recovery criteria to include renewable energy development. Since then…. 29 onshore wind farm appeals were recovered in 2013. Only 8 have been determined, 7 have been refused and only 1 scheme approved. 7 additional projects recovered between December 2013 and 17 March 2014. Outcome: • Considerable delays (delay between PINS recommendation and SoS decision 1 – 3.5 months) • Industry uncertainty; loss of low carbon generating potential
Onshore wind on hold – what does the future hold? The temporary 6 month revision ends on 10 April 2014. The SoS will then review the possibility of extending the scheme. In all but two cases the SoS decision has followed PINS' recommendations – will an extension be justified?
An exception to the rule: Ecotricity's scheme at Poplar Farm, Sedgemoor PINS recommended approval. SoS refused permission on the basis of significant adverse impact on local landscape character, scenic quality and distinctive landscape features – the scheme would conflict with the development plan.
National Planning Policy Framework
"To help increase the use and supply of renewable and low carbon energy, local planning authorities should recognise the responsibility on all communities to contribute to energy generation from renewable or low carbon sources." (para 97) Local authorities should: • have positive strategies, policies to maximise renewable and low carbon energy
development; • consider identifying suitable areas for renewable and low carbon energy sources; • recognise that even small-scale projects provide a valuable contribution to cutting greenhouse gas emissions (para 97-98)
R(RWE Npower Renewables Ltd) v. Milton Keynes Council [2013] EWHC 715 (Admin) 'Wind turbines generate passionate argument as well as energy" John Howell QC Local authority's adoption of SPD on wind turbines requiring that turbines above a specified height should be separated from residential premises by certain distance was unlawful.
The Judge concluded that: "…any specification of minimum distance requirements from a sensitive receptor, which a proposed wind turbine has to satisfy regardless of whether it will in fact have any unacceptable adverse impact on it, is incompatible with the Secretary of State's guidance."
Local Policy Framework Council Policy and Status Cornwall Council – Renewable Energy Planning Guidance Note 3: The development of onshore wind turbines
To be adopted as SPD once the Core Strategy is adopted. The Highland Council – Onshore Wind Energy: Interim Supplementary Guidance and Small Scale Wind Turbine Proposals – Interim SG. To be adopted as SPD.
Locational constraints Different buffer zones distance depending on the species of birds and associated habitat that may be affected from the proposed development. Ranges from 150m to 1km.
"The Council would encourage turbines associated with large-scale wind energy developments to be located at a distance of at least 2km from the development boundaries of settlements (as defined in Local Plans) especially where they are likely to be a prominent feature in an open landscape." "Regard should be had to the predicted impact of turbine noise when selecting a site for turbine(s) relative to noise sensitive locations such as neighbouring houses."
Local Policy Framework cont. Council Policy and Status Fife Council – Wind Energy Planning SG To be adopted as SPD late 2015. Isle of Anglesey County Council – Onshore Wind Energy 2013 SPD Adopted
Cumbria Council – Wind Energy SPD Adopted
Locational constraints Incorporates Scottish Government guidance on separation distance of up to 2km between the areas of search for wind farms and the edge of cities, towns and villages. "Outside the AONB medium and large wind turbines (over 20m in tip height) within 2km of the AONB boundary will not be supported. Micro and small scale developments (up to 20m to tip height) within the 2km buffer zone, will only be supported if they demonstrate they would not cause significant harm to the setting of the AONB." "This guidance does not seek to set buffer zones around international or national designations; however developments proposed close to the boundaries of these designations will need to assess their effects on them".
Top tips for developers • Pre-application stage : Adequate preparation; watch for emerging SPG • Application stage: In depth – understanding of the application process and track to ensure compliance with EIA requirements and HRA; • Post decision: Protective Costs Orders
What else is happening? • Establishment of a specialist Planning Court – summer 2014 • planning cases will be fast-tracked to a court with specialist judges instead of the current system of administrative courts
• Judicial review reforms – proposals include: • Details of anyone financially backing a JR are disclosed even if they are not named as a party; • Third parties intervening in JR to bear their own costs and the costs incurred by any party as a result of the intervention • Legal aid funding will be targeted at JR cases that have merit
• RenewableUK Noise Working Party report on Wind Turbine Amplitude Modulation (2013) • Definition • Planning condition
Other developments • Community Energy Strategy • • • •
Local authorities encouraged to show leadership in delivering community energy projects One – stop shop information resource for community energy and partners Commitment from the renewables industry to increase shared ownership of new onshore renewables developments Working group led by the TCPA to develop strategy for addressing barriers and solutions to report in Summer 2014
• Good Practice Guidance on community benefit and engagement and registers of Community Benefit and Engagement • New EIA Directive to amend Directive 2011/92/EU
Sarah Holmes Senior Counsel Direct: +44 (0) 845 415 7703 Mobile: +44 (0) 0781 4254932 Office: +44 (0) 845 415 0000
Onshore wind on hold
11 October 2013: SoS announces a temporary 6 month revision of the appeals recovery criteria to include renewable energy development. Since then…. 29 onshore wind farm appeals were recovered in 2013. Only 8 have been determined, 7 have been refused and only 1 scheme approved. 7 additional projects recovered between December 2013 and 17 March 2014. Outcome: • Considerable delays (delay between PINS recommendation and SoS decision 1 – 3.5 months) • Industry uncertainty; loss of low carbon generating potential
Onshore wind on hold – what does the future hold? The temporary 6 month revision ends on 10 April 2014. The SoS will then review the possibility of extending the scheme. In all but two cases the SoS decision has followed PINS' recommendations – will an extension be justified?
An exception to the rule: Ecotricity's scheme at Poplar Farm, Sedgemoor PINS recommended approval. SoS refused permission on the basis of significant adverse impact on local landscape character, scenic quality and distinctive landscape features – the scheme would conflict with the development plan.
National Planning Policy Framework
"To help increase the use and supply of renewable and low carbon energy, local planning authorities should recognise the responsibility on all communities to contribute to energy generation from renewable or low carbon sources." (para 97) Local authorities should: • have positive strategies, policies to maximise renewable and low carbon energy
development; • consider identifying suitable areas for renewable and low carbon energy sources; • recognise that even small-scale projects provide a valuable contribution to cutting greenhouse gas emissions (para 97-98)
R(RWE Npower Renewables Ltd) v. Milton Keynes Council [2013] EWHC 715 (Admin) 'Wind turbines generate passionate argument as well as energy" John Howell QC Local authority's adoption of SPD on wind turbines requiring that turbines above a specified height should be separated from residential premises by certain distance was unlawful.
The Judge concluded that: "…any specification of minimum distance requirements from a sensitive receptor, which a proposed wind turbine has to satisfy regardless of whether it will in fact have any unacceptable adverse impact on it, is incompatible with the Secretary of State's guidance."
Local Policy Framework Council Policy and Status Cornwall Council – Renewable Energy Planning Guidance Note 3: The development of onshore wind turbines
To be adopted as SPD once the Core Strategy is adopted. The Highland Council – Onshore Wind Energy: Interim Supplementary Guidance and Small Scale Wind Turbine Proposals – Interim SG. To be adopted as SPD.
Locational constraints Different buffer zones distance depending on the species of birds and associated habitat that may be affected from the proposed development. Ranges from 150m to 1km.
"The Council would encourage turbines associated with large-scale wind energy developments to be located at a distance of at least 2km from the development boundaries of settlements (as defined in Local Plans) especially where they are likely to be a prominent feature in an open landscape." "Regard should be had to the predicted impact of turbine noise when selecting a site for turbine(s) relative to noise sensitive locations such as neighbouring houses."
Local Policy Framework cont. Council Policy and Status Fife Council – Wind Energy Planning SG To be adopted as SPD late 2015. Isle of Anglesey County Council – Onshore Wind Energy 2013 SPD Adopted
Cumbria Council – Wind Energy SPD Adopted
Locational constraints Incorporates Scottish Government guidance on separation distance of up to 2km between the areas of search for wind farms and the edge of cities, towns and villages. "Outside the AONB medium and large wind turbines (over 20m in tip height) within 2km of the AONB boundary will not be supported. Micro and small scale developments (up to 20m to tip height) within the 2km buffer zone, will only be supported if they demonstrate they would not cause significant harm to the setting of the AONB." "This guidance does not seek to set buffer zones around international or national designations; however developments proposed close to the boundaries of these designations will need to assess their effects on them".
Top tips for developers • Pre-application stage : Adequate preparation; watch for emerging SPG • Application stage: In depth – understanding of the application process and track to ensure compliance with EIA requirements and HRA; • Post decision: Protective Costs Orders
What else is happening? • Establishment of a specialist Planning Court – summer 2014 • planning cases will be fast-tracked to a court with specialist judges instead of the current system of administrative courts
• Judicial review reforms – proposals include: • Details of anyone financially backing a JR are disclosed even if they are not named as a party; • Third parties intervening in JR to bear their own costs and the costs incurred by any party as a result of the intervention • Legal aid funding will be targeted at JR cases that have merit
• RenewableUK Noise Working Party report on Wind Turbine Amplitude Modulation (2013) • Definition • Planning condition
Other developments • Community Energy Strategy • • • •
Local authorities encouraged to show leadership in delivering community energy projects One – stop shop information resource for community energy and partners Commitment from the renewables industry to increase shared ownership of new onshore renewables developments Working group led by the TCPA to develop strategy for addressing barriers and solutions to report in Summer 2014
• Good Practice Guidance on community benefit and engagement and registers of Community Benefit and Engagement • New EIA Directive to amend Directive 2011/92/EU
Sarah Holmes Senior Counsel Direct: +44 (0) 845 415 7703 Mobile: +44 (0) 0781 4254932 Office: +44 (0) 845 415 0000
