Winds of change in Wales?

Clare Parry examines the implications of the DECC’s recent decision to reject applications for wind farms and a power line in Mid Wales.

On 7 September, the Department of Energy & Climate Change (DECC) rejected five onshore wind farm projects in Powys, following a combined public inquiry which closed in May 2014. A sixth proposal – to upgrade an existing wind farm at Llandinam – was approved, but proposals for a power line to link it to the national electricity grid were rejected, putting the future of even that project in doubt.

This was one of the longest running wind energy battles. Between 2007 and 2009 developers made applications for five wind farms (Llanbrynmair, Carnedd Wen, Llaithddu, Llandinam and Llanbadarn Fynydd) and a 137kV line. The applications were pursuant to the Electricity Act 1989 as the wind farm applications were over 50MW each. The applications are likely to be the last of their kind as such applications would now be under the regime for nationally significant infrastructure projects. However, pursuant to the Electricity Act, because the local authority (Powys County Council) objected to the applications the Secretary of State was obliged to hold an inquiry. An Inspector presided over the year long inquiry.

In Wales, while applications for wind farms under 50MW are decided by the Welsh Assembly, applications over 50MW are decided by the DECC. Thus the applications raised issues around the relationship between the UK Government’s ambitions for green energy as identified through the policy statements EN-1, EN-3 and EN-5, and the Welsh Government’s views on green energy and planning as expressed in Planning Policy Wales and Technical Advice Note 8. Of particular relevance was the approach of the Welsh Government of concentrating large scale wind energy projects in a limited number of ‘strategic search areas’. The applications in this case were located within or near to the SSAs.

Both the Inspector and the Secretary of State placed weight on national and Welsh policy statements. However what is stark is the difference in the judgments reached in the agreed policy context. The Inspector concluded that Llandinam, the north of Llaithddu and all but five turbines of Carnedd Wen were acceptable, Llanbrynmair was acceptable if it used an alternative access and the 132kV line was acceptable if partially undergrounded, but Llabadarn Fynydd was unacceptable. The Secretary of State however concluded that only Llandinam and the north of Llaithddu were acceptable.

Such a substantial difference in judgment between the Secretary of State and his Inspector has occurred in a number of English cases that have been called in, but the Welsh Government views it as disappointing in light of its commitment to renewable energy. Those still seeking to develop on-shore wind in Wales will surely consider that the political climate is more supportive of projects under than over 50MW as the former are decided by Welsh Government.

Of particular interest to Welsh authorities and developers will be the approach of the Inspector to the indicative energy targets of the SSAs. He clearly regarded the fact that certain combinations of schemes would exceed those indicative energy targets to be a policy concern.

The Inspector and the Secretary of State also had to grapple with some complex issues of cumulative impact. If all the turbines before the inquiry were permitted that would have triggered the need for a 400kV grid connection on pylons which was strongly objected to by Powys County Council and other objectors, although the application for that connection was not before the inquiry. There were further difficulties of assessing cumulative impacts in that there were a substantial number of other wind farms in the area in the planning system or the NSIP system but not before the inquiry. Indeed one wind farm had been granted permission by the Welsh Ministers prior to the Secretary of State’s decision but that decision is subject to challenge in the High Court.

In light of the Secretary of State’s conclusions on the overall acceptability of the wind farms it was not necessary for her to grapple with the complex permutations of what combinations of wind farms would trigger the need for the grid connection. The Inspector had to. He accepted that in relation to each individual wind farm the correct question was whether there was any reason why the grid connection could not be provided (which is the conventional approach adopted by Inspectors in cases where the grid application is not part of the same application). However he did accept that it was relevant to assessment of which schemes should cumulatively be accepted that some combinations of scheme would trigger the need for the 400kV line.

Given that the Secretary of State only found Llandinam acceptable she did not need to grapple with other schemes in the planning pipeline. The Inspector however considered in a number of respects that the schemes before him were acceptable but if all the applications in the planning pipeline were to be permitted that would be unacceptable. However that did not prevent him finding the schemes before him were acceptable.

A final issue of interest was the relevance of alternatives to the decision making. This arose in two particular respects. In relation to the 132kV line a number of alternative proposals for exporting the electricity had been put forward by various parties from partial undergrounding of the line to an entirely different route. Both the Inspector and the Secretary of State accepted that the existence of those alternatives was relevant to their consideration and relied on proposed alternatives in reaching their decision. Secondly, in relation to Llanbrynmair the council had argued that there was an alternative access route for wind farm components that would have substantially reduced environmental consequences. The Inspector accepted in the public interest that the alternative route was relevant and that given the existence of an alternative with reduced consequences the proposed access route should not be considered acceptable.

The Electricity Act has largely been replaced and it is unlikely in light of the changes to the subsidy regime that there will be another onshore wind farm inquiry of this scope. The apparent differences between the Welsh Government and UK Government approaches will no doubt add to the calls from some in Wales to devolve decisions on energy schemes over 50MW to Cardiff.

Clare Parry from Cornerstone Barristers acted on behalf of Powys County Council to oppose the wind farms.