Renewable energy Q & A DCP Section 26.5

This section discusses technologies such as onshore wind generation, hydro, photovoltaics, passive solar, biomass and energy crops, energy from waste (but not energy from mass incineration of domestic waste), landfill and sewage gas. The development control system has dealt with a large number of wind farm proposals and it is almost always the case that areas subject to high winds are also those of great scenic value, and reconciliation of this fundamental conflict is the subject of many of the cases described below. Detailed practice advice is now available in PPS22 Renewable Energy 2004 and this guidance contains a very detailed technical annex on the appropriate development of renewable energy schemes. Conventional power stations can be found at (26.4). Waste transfer depots and waste destruction/reclamation/recycling stations are at (25.4). Householder renewable energy schemes can be found in chapter 12 while other small-scale schemes at an existing use can be found in the section of the main use of the site.

Q & A    26.5/10

I have been asked to examine a planning application for a client relating to wind turbines. The area of the application is shown as two parcels one each side of a public highway. Surely this is an invalid application, as a separate application should have been submitted for each parcel?

There does not seem to be any provision in planning law or ministerial advice to suggest that a single planning application for an integrated use covering 2 parcels separated by a public highway is invalid. Certainly there have been planning appeals covering split sites where the issue has not been raised including motorists service areas on opposite sides of main roads.

A windfarm has been developed opposite my property where approved diagrams, photomontages and written predictions have not been adhered to. Turbines which I was persuaded would not be seen or heard are now apparent. The developers have agreed to compensate us but have asked us to come up with an amount. I need to have some idea from previous cases giving some idea of the sum of money that I should suggest to them.

I assume that there is nothing your local planning authority can do to remedy what appears to be a substantial departure from approved plans. I am aware of a previous Ombudsman case concerning a complaint concerning a wind farm in Cornwall but in this case no maladministration was found and therefore there was no discussion of compensation. However, the general approach of the Ombudsman to establishing compensation where property value has been affected may be of interest as in a Blyth Valley case relating to a telecommunications mast (Blyth Valley B.C. 26/7/02 Ref: 01/C/12536). Here it was recommended that the basis of compensation should be the independently assessed difference in property value between a) the mast sited where it should have been and b) the mast sited where it had been erected.

When an application is made for a wind turbine near regular congregations of people e.g. a school or stadium, what consideration should be given to the possibility of an accident involving the tower falling or blade shatter? Councils have a statutory duty of care for children within its schools. Could planners, who are not safety experts, be held responsible for not obtaining specialised advice from the Health and Safety Executive or carrying out safety studies? HL.

There are many things a landowner could do which might endanger a neighbour, but which do not require planning permission, e.g. planting a tree. Within this context it would seem that if a turbine collapses, the owner would normally be liable unless it was the result of an "act of God" such as extremely high winds. In researching this answer, I have become aware that concerns have been expressed about the possibility of tower collapse, etc following such incidents and suggestions have been put forward for minimum separation distances between turbines and dwellings or other sensitive uses. Public safety can be a planning consideration, e.g. major hazards, and a planning authority could therefore refuse permission or impose conditions if it had safety concerns about turbines. Unlike conventional buildings which require building regulations consent, considering this would not be duplicating other controls. A consent by the Scottish Government for a wind-powered electricity station under the Electricity Act 1989 and the Town and Country Planning (Scotland) Act 1997 included a condition requiring a mineral stability report confirming this can be a material consideration (DCS No: 100-063-330). Readers might wish to be aware that there are two standards relating to wind turbine safety, BS EN 50308 Wind turbines - Protective measures - Requirements for design, operation and maintenance and BS EN 61400 - Wind Turbines - Design requirements. JH.

Response

I agree that the liability (if any) would be with the owner. The courts have been reluctant to hold that planning authorities have a duty of care in such circumstances (unless their requirements positively create a hazard). Of course the liability of the planning authority needs to be distinguished from any duty of the education authority as referred to by HL. However, I would also suggest that if the planning authority failed to identify and properly consider issues of public safety (such as separation distances) it could amount to a failure to consider relevant material, and the decision could be open to legal challenge by objectors. PB.

Further Response

According to my understanding the location of a turbine sited so it could topple onto a public right of way or other public space will be a material consideration, and usually this dictates that the topple distance, i.e. the height to hub plus the blade length, is a separation distance. More likely than either tower topple or blade loss is damage resulting from ice on the blade flying off. In none of these cases would there be potential legal liability on the part of the planning authority. As PB observes judicial review is a possibility if such issues are not considered. As the siting of the tower is probably within the discretion of the planning authority, it is unlikely that turbines would be sited within toppling distance of school buildings or playgrounds in any event on account of operational environmental impacts. There is a potential civil issue if a blade oversails third party property. PS


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