Legal Assistants (Litigation and Planning)
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Wednesday, 27 June 2012 19:32

environment portrait1Tensions between the localism agenda and the presumption in favour of sustainable development will lead to protracted battles before local planning authorities, planning inspectors and the courts over wind farms, writes David Merson.

"Fortune is guiding our affairs better than we ourselves could have wished. Do you see over yonder, friend Sancho, thirty or forty hulking giants? I intend to do battle with them and slay them. With their spoils we shall begin to be rich for this is a righteous war and the removal of so foul a brood from off the face of the earth is a service God will bless."[i]

Introduction

Individuals, organisations and communities emboldened by the expectations raised by the Coalition’s ‘Localism’ agenda[ii] are actively looking at ways in which they can influence the debate about renewable energy and, in particular, affect the outcome of wind farm applications in their local areas.

Local Government Lawyer has written recently about just such a move, involving Lincolnshire County Council’s drive to halt the “unrestrained invasion” of wind turbines across the region. This reports that what Lincolnshire is seeking to do is have a beefed-up position statement for use as the basis for responses to wind farm proposals on which it may be consulted; as its response to district councils preparing Development Plan policies on such matters; and as its position when discussing the issue at a national level.

The statement contains a number of highly restrictive criteria against which the County Council would wish to see such proposals judged although it recognises that it is not the local planning authority (LPA) nor is it a Local Plan making body. The County Council accepts that it therefore “… has no ability to make planning statements or policy and this statement should be given as a political statement only”.

I have written a short comment on the recent High Court decision in the Sea & Land Power case[iii] which dealt with a separate challenge to a wind farm proposal.

The Sea & Land Power case is a decision about which much is being made. The decision does not however, in my view, warrant such attention. Local politicians and objectors will seek to use the decision as the basis for an assertion that local landscape policies outweigh national renewable energy targets although the decision is not, in my view, a victory for people power as claimed by jubilant villagers who objected to the wind farm proposal. Nor does the decision have significant implications for any future onshore plans on the basis that the Government’s renewable energy targets have no teeth when it comes to local planning matters as claimed by the applicant developer.

The High Court has not done anything other than make a decision on the merits of a particular case and in doing so has simply reinforced the existing legal position that policies (provided they have gone through the relevant formalities, are in place and are part of the statutory Development Plan) need to be weighed and balanced. If, in doing so, the impact as in the Sea & Land Power case on the local landscape is high and the gain for carbon free energy low then a refusal to grant planning permission can be safely upheld. The judge made absolutely clear that the planning inspector had been entitled to her view that, in that case, Government targets were outweighed by the “material harm” the development would cause to the “character and appearance” of a sensitive area. Her ruling emphasised that the Government’s encouragement of renewable energy sources did not have “primacy” over local conservation policies despite the RSPB’s withdrawal of its objection regarding the impact on local populations of pink-footed geese and marsh harriers. The judge acknowledged that “This is simply a case of policies pulling in different directions: harm to landscape and the benefits of renewable energy.”

Real considerations

What therefore are the real considerations that need to be taken into account?

The starting point is that the UK has committed, via a National Policy Statement (NPS), to sourcing 15% of its total energy (across the sectors of transport, electricity and heat) from renewable sources by 2020.[iv] This is to comply with the target imposed on it under the 2009 Renewable Energy Directive.[v]

This NPS contains Government policy on energy and energy infrastructure development and was developed primarily to provide policy against which nationally significant infrastructure projects were to be judged. The document, and in particular the policy and guidance on generic impacts in Part 5 thereof, may nevertheless be helpful to LPAs in preparing their local impact reports and, in respect of England and Wales, is said likely to be a material consideration in decision making on applications that fall under the Town and Country Planning Act 1990 (as amended) but that the extent to which it is will be judged will be on a case by case basis.[vi]

There are also a number of technology specific NPSs which should be read in conjunction with this NPS where they are relevant to an application, one of which is the National Policy Statement for Renewable Energy Infrastructure (EN-3).[vii] This too is considered to be helpful to LPAs in preparing their local impact reports and in England and Wales may very well be a material consideration in decision making on relevant applications again on a case by case basis.[viii] The document covers things like site selection issues such as predicted wind speed; proximity of site to dwellings; capacity of a site; electricity grid connection; and access. It also covers technical issues such as access tracks; project lifetimes; flexibility in the project details; micrositing; and repowering issues. The potential impact on biodiversity and geology; conservation including mitigation and future surveys and monitoring; historic environment; landscape and visual impact; noise and vibration; shadow flicker; and traffic and transport are also all addressed.

Regional Strategies remain part of the Development Plan until they are abolished by Order using powers taken in the Localism Act 2011.[ix] It is the Coalition’s clear policy intention to revoke the Regional Strategies outside of London, subject to the outcome of the environmental assessments that are currently being undertaken.[x]

We then have the National Planning Policy Framework (the Framework).[xi] This sets out the Government’s planning policies for England and how these are expected to be applied.[xii] The Framework must be taken into account in the preparation of Local and Neighbourhood Plans, and is a material consideration in planning decisions.[xiii]

Finally there is the individual statutory Development Plan which includes the Local Plan, any Neighbourhood Plans made in relation to that area and the London Plan.[xiv] This is where LPAs draw up the various documents which make up their area specific policies and plans which are then subject to the requisite public consultation process and scrutiny for soundness.[xv]  

For 12 months from the day of publication of the Framework, decision-takers may continue to give full weight to relevant Development Plan policies adopted since 2004[xvi] even if there is a limited degree of conflict with the Framework.[xvii] In other cases and following this 12-month period, due weight should be given to relevant policies in existing Development Plans according to their degree of consistency with the Framework where greater weight can be given where the policies are closer to the policies in the Framework.[xviii]

Role to Play

Do those who wish to influence policy and decisions have a real role to play?

Clearly they can influence and shape policy as it is developed by participating in the public consultation process. They can object to and make representations in respect of applications for planning permission as they come forward. They could go as far as seeking to prepare Neighbourhood Plans in respect of their particular areas. All of which however now takes place in the new planning ‘climate’.

The Framework must be taken into account in the preparation of Local and Neighbourhood Plans.[xix] Of particular note is Section 10 dealing with ‘Meeting the challenge of climate change, flooding and coastal change’.

Paragraph 97 in Section 10 of the Framework provides as follows:

  • “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. They should:
  • have a positive strategy to promote energy from renewable and low carbon sources;
  • design their policies to maximise renewable and low carbon energy development while ensuring that adverse impacts are addressed satisfactorily, including cumulative landscape and visual impacts; consider identifying suitable areas for renewable and low carbon energy sources, and supporting infrastructure, where this would help secure the development of such sources;
  • support community-led initiatives for renewable and low carbon energy, including developments outside such areas being taken forward through neighbourhood planning; and
  • identify opportunities where development can draw its energy supply from decentralised, renewable or low carbon energy supply systems and for co-locating potential heat customers and suppliers.”

The footnote to this paragraph makes clear that: “In assessing the likely impacts of potential wind energy development when identifying suitable areas, and in determining planning applications for such development, planning authorities should follow the approach set out in the National Policy Statement for Renewable Energy Infrastructure (read with the relevant sections of the Overarching National Policy Statement for Energy Infrastructure, including that on aviation impacts). Where plans identify areas as suitable for renewable and low-carbon energy development, they should make clear what criteria have determined their selection, including for what size of development the areas are considered suitable.”

Paragraph 98 indicates that:

  • “When determining planning applications, local planning authorities should:
  • not require applicants for energy development to demonstrate the overall need for renewable or low carbon energy and also recognise that even small-scale projects provide a valuable contribution to cutting greenhouse gas emissions; and
  • approve the application (unless material considerations indicate otherwise) if its impacts are (or can be made) acceptable. Once suitable areas for renewable and low carbon energy have been identified in plans, local planning authorities should also expect subsequent applications for commercial scale projects outside these areas to demonstrate that the proposed location meets the criteria used in identifying suitable areas.”

Paragraph 14 of the Framework contains its very heart. This is the presumption in favour of sustainable development, which should be seen as a "golden thread running through both plan-making and decision-taking".

With this in mind LPAs are required to positively seek opportunities to meet the development needs of their area; and their Local Plans should meet objectively assessed needs, with sufficient flexibility to adapt to rapid change, unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework taken as a whole; or specific policies in the Framework indicate development should be restricted.

This also means approving development proposals that accord with the Development Plan without delay; and where the Development Plan is absent, silent or relevant policies are out-of-date, granting permission unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits similarly assessed.

Policies in Local Plans should follow the approach of the presumption in favour of sustainable development so that it is clear that development which is sustainable can be approved without delay. All plans should be based upon and reflect the presumption in favour of sustainable development, with clear policies that will guide how the presumption should be applied locally.[xx]

The Framework recognises that Local Plans are the key to delivering sustainable development that reflects the vision and aspirations of local communities[xxi] but that planning decisions must be taken in accordance with the Development Plan unless material considerations indicate otherwise.[xxii] LPAs are urged to prepare Local Plans with the objective of contributing to the achievement of sustainable development.[xxiii] The Local Plan has to be consistent with the principles and policies set out in the Framework, including the presumption in favour of sustainable development.[xxiv]

Furthermore LPAs have to seek opportunities to achieve each of the economic, social and environmental dimensions of sustainable development, and net gains across all three. They have to avoid significant adverse impacts on any of these dimensions. Alternative options which reduce or eliminate such impacts should be pursued. Where unavoidable, mitigation measures should be considered and as a last resort compensatory measures may be appropriate.[xxv]

In particular LPAs have to set out the strategic priorities for the area in the Local Plan which include strategic policies to deliver among other things the provision of energy (including heat).[xxvi] Indeed crucially, Local Plans should plan positively for the development and infrastructure required in the area to meet the objectives, principles and policies of the Framework.[xxvii]

Local planning authorities should work with other authorities and providers to not only assess the quality and capacity of infrastructure for energy (including heat) and its ability to meet forecast demands but to take account of the need for strategic infrastructure including nationally significant infrastructure within their areas.[xxviii]

Furthermore public bodies have a duty to cooperate on planning issues that cross administrative boundaries, particularly those which relate to the strategic priorities set out. The Government expects joint working on areas of common interest to be diligently undertaken for the mutual benefit of neighbouring authorities.[xxix]

Neighbourhood planning can provide powerful tools for local people to ensure that they get the right, as they see it, types of development for their community. The Framework however provides that the ambition of the neighbourhood should be aligned with the strategic needs and priorities of the wider local area and to that end Neighbourhood Plans must be in general conformity with the strategic policies of the Local Plan. LPAs are told to set out clearly their strategic policies for the area and ensure that an up-to-date Local Plan is in place as quickly as possible. Neighbourhood Plans need to reflect these policies and neighbourhoods should plan positively to support them. Crucially however Neighbourhood Plans and Orders should not promote less development than set out in the Local Plan or undermine its strategic policies.[xxx]

Conclusions

Where does all of this leave us?

The Coalition is bound by the renewables target set in the 2009 Directive and will, in my view, make sure, through the oversight and soundness process that Local Plans are subjected to, that the achievement thereof is not hindered by the planning policy development process. Local schemes dealt with by LPAs, and at appeal by Inspectors from the Planning Inspectorate, will still have to have proper regard to all relevant planning policies and weigh them in the balance on the basis of the available evidence together with any other material planning considerations. The bigger schemes are dealt with by the Infrastructure Planning Unit of the Planning Inspectorate and are subject to Ministerial oversight.[xxxi]  

It does however seem that the Coalition has raised expectations on both sides of the divide. On the one hand the ‘Localism’ agenda and the prospect of controlling or restricting the way in which local communities are developed and on the other hand the presumption in favour of sustainable development as a means of growing the economy. There are inherent tensions therein which will very often be difficult to reconcile and which will no doubt lead to continuing conflict and protracted battles before LPA Planning Committees, Planning Inspectors and ultimately the Courts.

"Take care, sir," cried Sancho. "Those over there are not giants but windmills. Those things that seem to be their arms are sails which, when they are whirled around by the wind, turn the millstone."[xxxii]

David Merson is Head of Planning & Environment at Steeles Law LLP. He can be contacted on 020 7421 1720 or by This e-mail address is being protected from spambots. You need JavaScript enabled to view it . You can also find David’s blawg at Planning Law and much more



[i] Part 1 Chapter VIII Don Quixote by Miguel de Cervantes.

[ii] ‘Control Shift – Returning Power to Local Communities’ Responsibility Agenda Policy Green Paper No.9 Conservative Party 2009.

[iii] Sea & Land Power & Energy Ltd v Secretary of State for Communities and Local Government [2012] EWHC 1419 (QB).

[iv] Paragraph 3.4.1 Overarching National Policy Statement for Energy (EN-1) presented to Parliament pursuant to Section 5(9) of the Planning Act 2008 July 2011.

[v] Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC.

[vi] Paragraph 1.2.1 Overarching National Policy Statement for Energy (EN-1) Op cit.

[vii] Policy Statement for Renewable Energy Infrastructure (EN-3) presented to Parliament pursuant to section 5(9) of the Planning Act 2008 July 2011.

[viii] Paragraph 1.2.3 Ibid.

[ix] Section 109.

[x] Department for Communities and Local Government Chief Planner’s letter to Chief Planning Officers dated 10th November 2010.

[xi] National Planning Policy Framework issued by the Department for Communities and Local Government March 2012.

[xii] Paragraph 1 Ibid.

[xiii] Sections 19(2)(a) and 38(6) of the Planning and Compulsory Purchase Act 2004 and section 70(2) of the Town and Country Planning Act 1990. In relation to neighbourhood plans, under section 38B and C and paragraph 8(2) of new Schedule 4B to the 2004 Act (inserted by the Localism Act 2011 section 116 and Schedules 9 and 10) the independent examiner will consider whether having regard to national policy it is appropriate to make the plan.

[xiv] Defined in section 38 of the Planning and Compulsory Purchase Act 2004.

[xv] Part 2 Local development Planning and Compulsory Purchase Act 2004 in respect of England.

[xvi] In development plan documents adopted in accordance with the Planning and Compulsory Purchase Act 2004 or published in the London Plan.

[xvii] Paragraph 214 National Planning Policy Framework Op cit.

[xviii] Paragraph 215 Ibid.

[xix] Paragraph 2 Ibid.

[xx] Paragraph 15 Ibid.

[xxi] Paragraph 150 Ibid.

[xxii] Section 38(6) of the Planning and Compulsory Purchase Act 2004.

[xxiii] Paragraph 151 National Planning Policy Framework Op cit.

[xxiv] Under section 39(2) of the Planning and Compulsory Purchase Act 2004 a local authority exercising their plan making functions must do so with the objective of contributing to the achievement of sustainable development.

[xxv] Paragraph 152 National Planning Policy Framework Op cit.

[xxvi] Paragraph 156 Ibid.

[xxvii] Paragraph 157 Ibid.

[xxviii] Paragraph 162 Ibid.

[xxix] Paragraph 178 Ibid.

[xxx] Paragraph 184 Ibid.

[xxxi] Part 3 Planning Act 2008 and Paragraph 1.4.2 Overarching National Policy Statement for Energy (EN-1) Op cit.

[xxxii] Part 1 Chapter VIII Don Quixote Op cit.

 

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