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Section 73 application to extend life of wind farm constitutes "repowering"

An application under Section 73 of the Town and Country Planning Act 1990 to extend the life of an existing wind farm constitutes "repowering" and does not engage Footnote 49 to paragraph 154 of the National Planning Policy Framework (NPPF). That is the decision of the Inspector issued on 29 July 2019 in relation to Kirkby Moor Wind Farm.

This is a positive development for stakeholders in existing wind farms. It means that applications to extend turbine lifespan may be acceptable even where they are not in an area identified as suitable and do not have the backing of the local community.

Background to the appeal

Zephyr Investments Limited (Zephyr) appealed the decision of South Lakeland District Council (Council) to refuse its application under Section 73 to vary a condition attached to its planning permission for 12 wind turbines.  The condition restricted the time period that the turbines could remain on the site to 25 years from them first being operational.  The original planning permission dated back to 1992 and the turbines were first operational in August 1993 which would mean that they would have to be removed by August 2018.  Zephyr proposed a revised date of March 2027 for cessation of generation and a year later for decommissioning. 

The application was recommended for approval by the Council's officers but refused at committee.

The Footnote 49 issue

Although there were a number of other issues, the Inspector considered at the beginning of his decision letter how the proposal should be considered in the light of Footnote 49 to paragraph 154 of the NPPF. 

Paragraph 154 of the NPPF provides that when determining planning applications for renewable energy developments, local planning authorities should approve the application if its impacts are (or can be made) acceptable.  This is subject to Footnote 49 which states that:

"Except for applications for the repowering of existing wind turbines, a proposed wind energy development involving one or more turbines should not be considered acceptable unless it is in an area identified as suitable for wind energy development in the development plan; and, following consultation, it can be demonstrated that the planning impacts identified by the affected local community have been fully addressed and the proposal has their backing."

In this case, there are no suitable areas identified in the development plan and there was very substantial local opposition.  The Council argued that as applications under Section 73 grant a fresh planning permission, this was not a repowering scheme but a proposal for a new windfarm on the site. 

The Inspector's decision

The Inspector disagreed and considered the proposal to comprise repowering such that Footnote 49 was not a relevant consideration.  He was at pains, however, to restate that notwithstanding this interpretation, the weight given to development plan policies would not be reduced and the views of local people would not be ignored. 


It is interesting to note that, as has largely been the case since the Written Ministerial Statement upon which Footnote 49 is based was published, the Council confirmed that it had no intention of identifying any suitable areas for renewable or low-carbon energy for at least five years.  Councils, whether intentionally or otherwise, have been able to frustrate new onshore wind development purely by failing to identify areas suitable for wind energy development in their development plans and thereby engaging Footnote 49.  It is heartening to see an Inspector taking a practical view on the intention of the revised Footnote 49 which until recently did not refer to repowering.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at August 2019. Specific advice should be sought for specific cases. For more information see our terms and conditions.

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