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Onshore wind planning obstacles

Recent press comment has indicated that falling costs may be leading the government to see onshore wind as an attractive means of solving the country's energy shortage.

However, developers will still need to overcome existing planning obstacles.

In June 2015, the government issued a Written Ministerial Statement (WMS), which provided that "when determining planning applications for wind energy development involving one or more wind turbines, local planning authorities should only grant planning permission if:

  • the development site is in an area identified as suitable for wind energy development in a Local or Neighbourhood Plan; and
  • following consultation, it can be demonstrated that the planning impacts identified by affected local communities have been fully addressed and therefore the proposal has their backing."

So how is this playing out in practice? A recent decision to reject an application for the installation of seven wind turbines in Lincolnshire is a useful illustration of what is happening on the ground.

Section 38(6) of the Planning and Compulsory Purchase Act 2004 requires that proposals be determined in accordance with the development plan unless material considerations indicate otherwise.  In this case, the development plan did not contain any policies governing renewable energy. The material considerations taken into account by the Secretary of State included the National Planning Policy Framework (NPPF) and associated guidance, as well as National Policy Statements for Energy and for Renewable Energy Infrastructure, and the WMS.

The Secretary of State agreed with the Inspector and dismissed the appeal concluding that the adverse impacts of the proposed development would significantly and demonstrably outweigh the benefits.

In coming to this conclusion, the role of the WMS in the decision making process was examined by the Inspector and his reasoning was agreed by the Secretary of State. The Inspector said that whether or not there has been compliance with the WMS is included within the overall planning balance as a material consideration weighing either in favour of, or against, the proposal. The weight to be attached to non-compliance is a matter of planning judgment.

The Inspector referred to the case of Holder v Gedling Borough Council [2016] EWHC 3095, which looked at the way in which the WMS should be considered. One of the claims in the Holder case was that the Officer had misdirected the Council as to the interpretation of the WMS and, therefore, the Council had erred when considering that the concerns of the local population had been addressed.

Mr Justice Green criticised the wording of the WMS, which states in its introduction that "local people have the final say on wind farm applications." His view was that this was not a justification for attributing decisive weight to the particular views of particular local people. To do so would fetter the Committee's discretion. Mr Justice Green said that the WMS "does not endorse the principle that a vocal minority has the ability to exert decisive or dominant influence in a manner which would not otherwise occur."

So, his view was clear – the Committee must take into account objectors' views and then balance and reconcile the competing arguments. The fact that the WMS claims to give local people the final say is not strictly true; the objections of a local group cannot be the sole reason for refusing to grant planning permission for an onshore wind development.

It is clear that compliance with the WMS is not the only issue to be taken into account in deciding whether planning permission should be granted for onshore wind developments. However, there is a risk that the way in which it is worded, and subsequent press coverage, has given local communities the impression that they do "have the final say" and can block development. If the government is serious about using onshore wind to contribute to energy production in a meaningful way, it needs to reconsider the planning position for such developments.

Contributor: Alexandra Holsgrove Jones

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at November 2017. Specific advice should be sought for specific cases. For more information see our terms & conditions.

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