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Planning for Renewable Energy

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01/11/2013

The UK is under pressure to harness more renewable energy. How does this interact with local planning considerations?

With climate change concerns rarely out of the news and ever-increasing oil prices, the need to harness renewable energy and push ahead with large-scale renewable projects is key. Whilst electricity production from sources such as wind and solar power is often criticised for its intermittent and variable nature, International Energy Agency (IEA) research has aimed to dispel such myths. The IEA has highlighted how use of renewable technologies contributes to diversification of electricity sources, increases overall flexibility of the system, and ensures resistance to central crises and alerts.

Under European legislation, the UK must ensure that 15 per cent of its overall energy consumption comes from renewable sources by 2020. The planning regime has an important role to play. However, the visual and ecological impacts – of wind farms in particular – are controversial. Planning for renewable projects can present numerous difficulties and hurdles. In its 2011 ‘UK Renewable Energy Roadmap’, the Department of Energy and Climate Change emphasised that “projects are generally more likely to succeed if they have broad public support and the consent of local communities. This means giving communities both a say and a stake”. Recent legislation, guidance and planning appeal decisions attempt to facilitate this local proactivity. But are the developments a step in the right direction?

What does the NPPF say about renewable energy?
In March 2012, the Department for Communities and Local Government (DCLG) published the National Policy Planning Framework (NPPF), outlining England’s overall planning policy and replacing most previous guidance and policy statements. In particular, the NPPF replaced ‘Planning Policy Statement 22: Renewable Energy’ and ‘Planning Policy Statement: Climate Change’. Following the NPPF coming into force, local planning authorities (LPAs) must now:

  • ‘factor-in’ the NPPF as a material consideration when determining a planning application
  • take it into account when preparing local plans
  • follow its presumption in favour of sustainable development.

The NPPF aims to encourage a positive approach to renewable energy from LPAs. It requires an LPA to:

  • have a strategy promoting energy from renewable and low carbon sources
  • actively identify suitable areas and supporting infrastructure
    ensure adverse impacts (including visual and landscape concerns) are addressed, but design policies to maximise development of alternative energy
  • plan for developments in ways to reduce greenhouse gas emissions
    follow appropriate guidance in the National Policy Statement when assessing wind power developments’ impact
  • support improvements to existing buildings to heighten energy efficiency
  • introduce local building-sustainability requirements, so there is consistency with central policy on zero-carbon buildings.

How are the NPPF’s requirements to be achieved in practice?
The Planning and Energy Act 2008 gives LPAs the power (albeit not the duty) to impose policies so there are ‘reasonable’ requirements on developers to adhere to energy efficient standards and targets in any new developments. The Act seeks to deal with the problem that around 50 per cent of the UK’s total carbon dioxide emissions currently derive from existing (and some new) buildings that are not energy efficient.

Supplementary guidance was published by DCLG in July 2013 (the Guidance), aiming to help local authorities at a practical level:

  • understand which developments are to be considered by LPAs
  • identify suitable areas for renewable and low carbon energy sites
  • develop criteria-based policies and positive strategies
  • accurately provide for ‘buffer zones’ (or separation distances).

The Guidance serves as an important reminder that the planning process used to determine development depends on the size of the proposed project:

  • in some instances, it is possible to install the necessary infrastructure, such as wind turbines, at a domestic level within current permitted development rights, provided specified limits and conditions are met. Permission is not required here
  • LPAs assume responsibility for renewable and low carbon energy developments with 50 megawatts or less of installed capacity, under the Town and Country Planning Act 1990
  • larger renewable and low carbon developments (that is, those with an output in excess of 50 megawatts) are considered by the Secretary of State. In such instances, the local authority is simply one of a number of statutory consultees.

Here the Secretary of State will refer to the ‘National Policy Statement for Energy’ and ‘National Policy Statement for Renewable Energy Infrastructure’ when deciding whether to grant consent. Under the overarching Energy NPS, the urgent need for new major energy infrastructure is ‘taken as read’. This is welcome news for many developers – meaning the need for renewable energy and associated infrastructure does not have to be evidenced in their applications. However the Guidance does state that, whilst the need for renewable energy and reduction of UK greenhouse gas emissions is important, environmental and local community considerations must not be automatically overridden.

Planning considerations relating to specific renewable energy technologies are highlighted in the Guidance. Similarly, the Renewable Energy NPS outlines requirements for applications for ‘nationally-significant infrastructure projects’ using one of the relevant technologies.

Wind turbines: the locals’ ‘nemesis’
Despite the greater clarity provided via such guidance, wind turbines raise a number of planning considerations and concerns for potential developers, including:

  • noise, ecological and heritage impact
  • safety
  • interference with air traffic and Ministry of Defence operations
  • interaction with the strategic road network
  • interference with electromagnetic transmissions for radio, television, phone signals etc.
  • shadow flicker and reflected light
  • negative cumulative landscape and visual impact.

Turbines continue to receive substantial negative ‘press’. In May 2012, a Private Members’ Bill was introduced into Parliament for the second time. Although a further reading is yet to be scheduled, the Bill provides for a minimum distance between residential premises and wind turbines, according to the turbine’s size. This is in addition to the Onshore Wind Turbines (Proximity of Habitation) Bill 2010-11, which would have given local authorities the power to specify recommended set-back distances between turbines and habitations. In the recent case of R (RWE Npower Renewables Ltd) v Milton Keynes Borough Council [1], the High Court found Milton Keynes’ attempt to fix minimum separation distances in the Supplementary Planning Document conflicted with its local plan and government wind energy policies. Whilst the Supplementary Plan was therefore not ‘legal’, the actual separation distances were not found unlawful. The court reinforced that, despite the presence of any local planning documents, LPAs should still assess the acceptability of visual and noise impacts of wind turbines on a case-by-case basis. The case reinforces the inherent tensions between the NPPF (with its presumption in favour of sustainable development), the government’s encouragement of alternative energy, and the Localism Act 2011 (giving councils greater flexibility regarding local plans).

How the cumulative landscape and visual impacts from wind turbines should be assessed remains unclear. The Guidance states the two elements should be considered separately – the cumulative landscape impact being (1) the effect of a proposed development on the landscape’s fabric, character and quality, and (2) the level to which it would become a defining characteristic of the landscape. The cumulative visual impact concerns the degree to which the project will be a feature in a particular view or series of views and its impact on people experiencing the views. The criteria to be considered in any assessment is to include:

  • sensitivity of the landscape and visual resource
  • the magnitude and size of the change
  • impact on zones of visual influence (the area from which a structure is theoretically visible)
  • sequential effects as an observer moves around
  • common routes and ‘journey scenarios’ through the landscape
  • existing focal points in the landscape
  • the sense of distance, remoteness or ‘wildness’ of the site.

A recent appeal case confirmed that such established approaches must take priority when assessing turbine impact. Although the 12 turbines in question were to be erected within a strategic search area for wind energy development, the inspector had been right in giving less weight to this. Following approaches adopted by other inspectors, she had ‘correctly’ decided:

  • the turbines could be described as ‘prominent’ if they were easily seen and ‘dominant’ if they drew the eye so that little else was seen
  • they would be ‘overwhelming’ if they made an observer want to move away.

The case also reinforced that the tests for assessing residential and visual amenity impact should not be applied ‘mechanistically’. Further, considering whether residents’ outlook would be affected and their dwellings made unattractive places to live was seen as a useful approach.

That prospective developers may face a ‘lose, lose’ situation at the planning appeal stage, however, appears a possibility from the recent refusal of a nine-turbine farm in south-east Scotland. Whilst the reporter noted the considerable support for wind turbine development in Scottish Government policy, this is not to be unconditional. On the one hand, the proposal was found unsatisfactory in landscape terms because it intruded into an area devoid of commercial-scale wind farm developments. But on the other hand, the cumulative relationship to existing turbines in the wider landscape apparently meant a wind farm-dominated landscape would have been the unacceptable result.

What does the future hold?
Between June and early August 2013, the Government announced plans for further changes to the planning process for onshore wind development. Amongst the proposals are the requirement for compulsory pre-application community engagement for significant developments and increased community benefit packages. Again, the concept of sustainable development and localism seem to be ‘at odds’. According to the Renewable Energy Planning Database, between January and December 2012, 215 onshore wind project applications received planning consent, compared to 115 being refused. Whilst the level of approvals is a positive sign, energy project-developers are still likely to face difficulties during the planning process. How far the new guidance ‘eases the way’ remains to be seen.

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[1] [2013] EWHC 751 (Admin)