Greg Barker, the Minister for Energy and Climate Change, has recently been quoted as saying that that council planning committees are voting through plans for large scale renewable energy projects like solar farms and wind turbines because they are said to be afraid of being taken to court by developers should they refuse permission.
In his words, town halls are prepared to "roll over rather than looking at the balance of community interest and visual impact" over fears they will face costly legal battles in the form of planning appeals or judicial reviews in the High Court.
There is anecdotal evidence to suggest that this is certainly not always true. The proposed 95-acre, 43,000-panel solar farm in Tattingstone in Suffolk attracted national attention and included objections from the Stour & Orwell Society conservation group, of which comedian Griff Rhys Jones is a patron. The proposals were rejected last month by Babergh District Council's planning committee, despite council officers recommending the scheme for approval, on the basis that the perceived benefits of the proposed development did not outweigh the adverse impact on visual amenity and landscape character. The developer has vowed to appeal the decision as the application "follow[ed] both local and national planning policy".
On other occasions, when acceptable proposals have attracted vocal opposition, Councils have been accused of refusing plans with the knowledge that their decision is likely to be appealed, leaving for a planning inspector to reconsider the issue and take the hard decision. This is often an easier option as it will ultimately be the Planning Inspectorate that will take the blame for the development going through.
The Government has now sought to allay the public anxiety concerning large scale renewable energy projects - caused especially by onshore wind turbines - by announcing some new measures. This was first heralded in a ministerial statement given by Eric Pickles on 6 June 2013 when the government signified its intention to ensure that planning decisions on onshore wind farms would be more "locally-led".
The Government has also said that it intends to amend secondary legislation to make pre-application consultation with local communities compulsory for the more significant onshore wind applications (as is already the case for national infrastructure applications). This is to ensure that community engagement takes place at an earlier stage in more cases and may assist in improving the quality of proposed onshore wind development.
In addition, The Department for Energy and Climate Change announced that the industry will also be expected to revise its Community Benefit Protocol by the end of 2013 from £1,000/MW of installed capacity per year, to £5,000MW/year for the lifetime of the wind farm.
New planning guidance issued on 29 July 2013 now specifies that the need for renewable energy does not automatically override environmental protection and the planning concerns of local communities. While it is a moot point that this was ever the case, the guidance does give greater weight to landscape and visual impact concerns. The guidance ensures that decisions take into account the cumulative impact of wind turbines and properly reflect the increasing impact on the landscape and local amenity as the number of turbines in an area increases. It also sets out clearly that 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.
The new planning guidance foresees neighbourhood plans as an opportunity for community led renewable energy developments. Neighbourhood Development Orders and Community Right to Build Orders can be used to grant planning permission for renewable energy development. Additionally communities are encouraged in the guidance to develop a community energy plan to underpin the neighbourhood plan.
It is too early to tell what the combined effect of these new measures will be on local authorities. The rebalancing of the planning guidance in favour of the landscape impact and opinions of local residents, however, is at least likely to give councils the framework and confidence to refuse more large scale renewable energy projects without fear of costs being awarded against them on appeal.
About the author
John Bosworth is a Partner and Head of Ashfords Solicitors' Planning Team specialising in compulsory purchase, planning, environmental law and regeneration. He began his career as a lawyer in-house with two local authorities. This was followed by five years at City law firm, Ashurst Morris Crisp, during which he spent six months on secondment to an urban development corporation. He has been a partner with Ashfords since 1997.
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