153: wind farm decisions demonstrate benefits and adverse impact balancing act

This is entry number 153, first published on 16 August 2010, of a blog on the implementation of the Planning Act 2008. Click here for a link to the whole blog. If you would like to be notified when the blog is updated, with links sent by email, click here.

Today's entry reports on recent onshore wind farm decisions that will be relevant to the new Planning Act regime.

Applications for 12 (and eventually 16) types of infrastructure project above certain size thresholds must be made to the new Infrastructure Planning Commission (IPC), whose procedures are set out in the Planning Act.

The key test that the IPC (or the Secretary of State) must apply in deciding whether or not to grant consent under the Planning Act is whether the 'adverse impact outweighs the benefits'.  This will not only form the crux of many decisions under the new regime but will often be very difficult to judge, since it will be comparing very different things on either side of the scale.  For example, how do you compare an improvement in the UK's production of electricity from renewable energy with localised noise or compulsory purchase of land?

Two recent windfarm decisions provide a stark illustration that this balance could go either way. Both were for about 25MW of electricity production, so below the 50MW Planning Act threshold, but instructive nonetheless.

First application granted

The first reached the High Court and concerned a proposed windfarm near Kendal in Cumbria.  The site was between two national parks - the Lake District and Yorkshire Dales.  The local authority (South Lakeland) had refused permission but this had been overturned by a planning inspector on appeal.

Paraphrasing the summary in the High Court judgment, the inspector said that the decision turned on the balanced judgment that had to be made between the benefits of renewable energy production and the adverse effects on the landscape and people in the surrounding locality, which is more or less the same test as under the Planning Act. He concluded that whilst some significant adverse effects would exist, including the visual impact on two properties (the owners of one of which took the case to the High Court), overall the effects would be quite limited in extent. He concluded that the balance weighed in favour of the proposal, and, when assessed in the round, that the development was in overall compliance with development plan policies.

The High Court did not re-examine that part of the decision but dismissed a series of six procedural irregularities alleged by the claimants.

Incidentally, in the High Court Sir George Bartlett bemoaned the fact that there are no generic noise conditions that local authorities can use for wind farm permissions and that they must therefore reinvent the wheel each time - something that the Department for Energy and Climate Change (DECC) or Communities and Local Government (DCLG) could address.

Second application refused

The second was the decision of a planning inspector and concerned a proposed windfarm near Bottesford in Leicestershire.  The site was in the Vale of Belvoir.  The local authority (Melton) had refused permission, but this time the decision was confirmed by a planning inspector on appeal.

The inspector concluded: "I consider that effects on landscape, heritage and residential amenity are of sufficient moment to justify rejecting this scheme, despite its capacity to contribute towards renewable energy production.  While conditions can address certain impacts, the harmful effects cannot all be overcome or significantly ameliorated by way of conditions. Accordingly, I conclude that planning permission should be refused."

Analysis

In the first case, renewable energy production was balanced against impacts to landscape and people, and won.  In the second, 'capacity to contribute to' renewable energy production was balanced against landscape, heritage and residential amenity, and lost.  That doesn't mean that heritage is what tipped the balance, of course, since it would have been the degree of each type of impact that mattered. 

Given the diffculty of comparing the two sides, there is likely to be quite a spread of opinion by decision-makers.  This will be difficult to overturn on legal grounds, as there will be a spread of possible 'reasonable' decisions that the courts will not interfere with.

I have not seen the full Inspector's report in either case, but the statement reproduced above from the latter might give rise to a legal challenge had it been made in the context of the Planning Act.  It suggests that an application cannot be granted if significant impacts remain, which is not properly balancing the benefits with the adverse impact.  It must be possible to grant applications even when significant impacts remain, if they are sufficiently outweighed by the benefits.  Indeed, that is what the first inspector concluded.

The draft energy National Policy Statements have put the need aspect of the benefits case at a high level ('there is a significant need for new major energy infrastructure which will have to be met by projects coming through quickly..'), which means that the adverse impact will have to be consequently greater to result in a refusal.

However this test is interpreted, one thing is for sure - those affected will be looking to challenge decisions under the new regime just as much as the old.

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