High Court judge quashes policy on wind turbine separation distances

The High Court has quashed a council’s supplementary planning document that sought to establish greater separation distances between wind turbines and residential homes, on the basis that it conflicted with the distance in the local plan.

The emerging wind turbine policy in the Wind SPD, adopted by Milton Keynes Council in July 2012, put forward a sliding scale.

Where the height of the wind turbine generator was 25m, the minimum distance requirement was 350m, and where the height was 100m or above, the minimum distance requirement was 1,000m.

However, the local plan, which was adopted by the council in December 2005, had a limit of 350m.

RWE NPower, which is looking to build two wind farms in the Milton Keynes area, advanced four grounds of challenge in the judicial review. They were:

1. The Wind SPD was adopted as a ‘supplementary planning document’. The claimant argued that Milton Keynes had no power to do so. Rather, the document had to be treated as a ‘development plan document’ and be subject to more rigorous examination before adoption;
2. The Wind SPD could not lawfully have been adopted given that the emerging policy in it conflicted with the adopted development plan for Milton Keynes;
3. When preparing the Wind SPD, the council failed to have regard to national policies and advice applicable to wind turbine development contained in guidance issued by the Secretary of State;
4. In all the circumstances, the council was obliged to have exercised its discretion to treat it instead as a ‘development plan document’, rather than as a ‘supplementary planning document’, or failed to have regard to the Secretary of State’s guidance which indicated that it should have done.

Judge John Howell QC found in favour of RWE NPower on the second ground only.

The judge said: “In substance the ‘emerging policy’ effectively seeks to amend the requirement [in the local plan] making it more severe and is thus in conflict with it….

“In my judgment no reasonable person could have concluded that the ‘emerging policy’ was not in conflict with the development plan by reason of the minimum separation distances from dwellings it prescribed for turbines which are in excess of 25m in height and located more than 350m from any dwelling.”

Quashing the supplementary planning document, Judge Howell added: “The ‘emerging policy’ in the Wind SPD was accordingly in breach of regulation 8(3) of the Town and Country Planning Regulations 2012.”

RWE NPower was only awarded 40% of its costs. Milton Keynes has been granted permission to appeal.

In a statement Milton Keynes said: “With the judge finding favour with the council on the majority of the points it is expected that the council will be reviewing its policy further.”

Its Leader, Cllr Andrew Geary, added: “It is rather ironic that the council already had separation distances in place within policy and the SPD was quashed as a result of this point alone, had we had no policy we would have won.

“Any authority that doesn't have a separation distance in policy should sit up and take notice of today's judgement. I have no doubt the action the council has taken is in the best interest of the residents of Milton Keynes and we will be looking at how we move forward.”

Dr Wayne Cranstone, RWE Npower renewables onshore development and projects director, said the company was pleased the judge had quashed the Milton Keynes SPD and its buffer zone policy.

He added: “On the matter of buffer zone policies more generally, the judge concluded that national guidance ‘plainly indicates’ that local authorities should not have a policy that planning permission for a wind turbine should be refused if a minimum separation distance is not met.”

Dr Cranstone added: “We have always sought to work in partnership with Milton Keynes Council and we will continue to do so. We welcome the clarity the court has brought to this matter, and we believe this will help both the wind industry and local authorities in determining appropriate policies for the siting of commercial wind farms.

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Gordon Nardell QC and James Burton, instructed by Eversheds, appeared for RWE NPower. Richard Harwood QC, also of 39 Essex Street, appeared for the council. He was instructed by Richard Buxton.