Policy Briefing: Ministerial rulings set to still wind turbine developments

Recent appeal decisions suggest that even small wind turbines are highly vulnerable to objections. Asher Ross explains.

Wind turbines: highly vulnerable to objections
Wind turbines: highly vulnerable to objections

Q How has the government handled recent small-scale wind turbine appeals?

A The secretary of state for communities and local government’s decision last month to refuse planning consent for two 250-kilowatt wind turbines on land near Stone in Staffordshire (DCS Number 200-004-256) continues and accentuates the recent direction of travel for smaller-scale wind turbines, emphasising the importance of engagement with the local community.

The inspector considered that Stafford Borough Council’s refusal of planning permission should be overturned. The secretary of state overruled this recommendation, giving significant material weight to his written ministerial statement of 18 June. The revised policy and the transitional arrangements set out in the statement outweighed the fact that the proposal accorded with development plan policies, he held.

Q What does this mean for those seeking to pursue small-scale wind energy developments?

A Even if your development accords with local plan policies on such matters as landscape or heritage, it is likely that the application or appeal will be refused if the local community considers that the development might have an impact on such matters and object to the proposal on this basis.

This approach was set out in a recent appeal decision by inspector Paul Clark on a proposal for a single turbine in Buckinghamshire (DCS Number 400-009-005). While there were three substantive matters to be considered at the appeal, the inspector did not address any of these. In one of the shortest turbine appeal decisions on record, at five paragraphs, he rejected the plans on the basis of non-compliance with the statement.

Q What does this mean for local planning authorities?

A Councils seeking to defend refusal of applications at appeal could seek to point out to an inspector that local people oppose the development and that while in professional terms the development is acceptable, it is clear that the community is not satisfied that all effects have been addressed. Recent decisions make this a more powerful argument, and it may provide a more cost-effective way to build a defence than gathering additional scientific evidence.

This approach could also be used at the application stage to refuse proposals for wind development, including small-scale developments. Local authorities should, however, beware of representations that are insubstantial or originate from an unrepresentative section of a local community.  In assessing objections to a scheme, councils should check whether they genuinely represent the views of local people or simply a couple of noisy individuals.

Q Are there implications for the weight given to development plans?

A One of the key aspects of the British planning system is that it is plan-led. This gives developers, councils and communities certainty about development proposals that could come forward and sets out a framework for decision-making.

The National Planning Policy Framework (NPPF) creates a framework for how planning decisions should be undertaken and confirms the primacy of the development plan. Paragraph 14 emphasises the importance of the presumption in favour of sustainable development, noting that for decision-taking, "this means approving development proposals that accord with the development plan without delay".

The government recently had its fingers burnt when it had new national policy on affordable housing quashed by the High Court in R (West Berkshire Council and Reading Borough Council) v Secretary of State for Communities and Local Government. The turbine appeals above appear to elevate the ministerial statement above even an up-to-date development plan.

This approach appears to be contrary to the provisions of the NPPF and may have wider implications for the decision-taking process and the weight to be afforded to ministerial statements - for example, on fracking applications. The awaited Court of Appeal decision on the West Berkshire case could clarify the position. Meanwhile, we understand that a judicial review is being considered of one of the wind turbine cases, and this may clarify how much weight should be afforded to local plans.

Asher Ross is a director at planning consultancy Boyer

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