The judge decided that a council’s attempt to impose a minimum distance of 1.2km (three quarters of a mile) between wind farms and people’s homes was unlawful, in a test case that could have far-reaching consequences for national planning laws.
Milton Keynes Borough Council in Buckinghamshire tried to prevent the wind energy firm RWE Npower Renewables Ltd from erecting 125 metre high turbines less than 1,217 metres from homes after it put in planning applications for two wind farms in the borough.
The firm took the council to court, arguing that the “emerging policy” of imposing a sliding scale of minimum distances, based on the height of turbines, contradicted its existing local development plan, which recommends a minimum distance of 350m.
The company argued that the new policy would “sterilise” the borough for wind farms because so few sites would comply with it, and feared that the policy would set a national precedent.
Judge John Howells QC agreed with RWE today in a High Court judgement which is likely to be used as a trump card by energy firms whenever councils object to wind farms being built too close to homes.
Acknowledging that “wind turbines generate passionate argument as well as energy”, the judge said there was “no objective justification” for the proximity restrictions, regardless of actual noise or visual impact.
Judge Howells emphasised that it was not his task to consider the benefits, or otherwise, of wind turbines but went on to uphold RWE’s judicial review challenge to the changes the council had sought to introduce via a “supplementary planning document”.
He ruled that the council’s stance was “plainly in conflict” with established local policy and gave rise to a situation where the same proposal would be granted planning consent under the adopted development plan for the area but refused it under the emerging policy.
Other arguments put forward by RWE – including that the council’s stance conflicted with national renewable energy policies – were dismissed by the judge, but Milton Keynes will now nevertheless be forced to make crucial amendments to its policy.
The policy sought to give residents a potentially crucial say in wind farm proposals close to their homes and also laid down minimum distances between turbines and bridleways, public footpaths and high pressure fuel lines.
RWE had earlier argued that the council’s policy shift had effectively left only tiny portions of the Milton Keynes area available for wind farm developments that are needed to meet national and regional renewable energy targets. It expressed concern that, if approved by the court, the emerging policy would be adopted by other local authorities across the country.
The company has two turbine projects in the council’s area in the pipeline – at Nun Wood and Orchard Way – but the council has opposed both on residential amenity grounds.
RWE argued that the emerging policy directly contradicted the local development plan which is “permissive” of wind farms, in line with government policy.
The emerging policy laid down a minimum distance of 1,217metres between a typical 125-metre-high wind turbine and the nearest home, whereas the local development plan recommends a minimum gap of only 350 metres and advises that permission will be granted unless it would cause significant harm to residential areas, wildlife or the landscape.
RWE argued that the emerging policy set rigid minimum distances, calculated according to turbine height, regardless of whether the operation of turbines would in fact cause unacceptable noise or visual impacts on local residents.
Cllr Andrew Geary, Leader of Milton Keynes Borough Council said: “It is rather ironic that the council already had separation distances in place within policy and the supplementary planning document was quashed as a result of this point alone. Had we had no policy we would have won.
“Any authority that doesn’t have a separation distance in policy should sit up and take notice of today’s judgement.
“I have no doubt the action the council has taken is in the best interest of the residents of Milton Keynes and we will be looking at how we move forward.”
The siting of wind farms has become a key source of tension between the Conservatives and the Liberal Democrats in the Coalition.
The Lib Dems are in favour of more onshore wind farms to meet green energy targets, but Tory ministers including Nick Boles, the planning minister, have argued that residents’ objections should be taken into account. Mr Boles has suggested in the past that a minimum distance of 1.4 miles between turbines and housing – suggested by Lincolnshire County Council – might be appropriate in some areas.
RWE npower renewables today welcomed the judgement in the High Court regarding its challenge to the Milton Keynes Supplementary Planning Document (SPD) on Wind Turbines.
The judge ruled that the separation distance policy in the SPD breached Regulation 8(3) of the Town and Country Planning Regulations 2012.
Dr Wayne Cranstone, RWE npower renewables onshore development and projects director said:
“We are pleased the Judge has quashed the Milton Keynes SPD and its buffer zone policy.”
“On the matter of buffer zone policies more generally, the Judge concluded that National Guidance “plainly indicates” that local authorities should not have a policy that planning permission for a wind turbine should be refused if a minimum separation distance is not met”
Dr Cranstone continued:
“We have always sought to work in partnership with Milton Keynes Council and we will continue to do so. We welcome the clarity the Court has brought to this matter, and we believe this will help both the wind industry and local authorities in determining appropriate policies for the siting of commercial wind farms”
“We remain committed to investing in renewable and sustainable energy solutions for Milton Keynes and the UK. The investments we’re making bring economic benefits to areas hosting wind farms, create thousands of jobs across the country and assist in reducing the impact of climate change and increasing the security of energy supply.”
Wind energy associations warn zonal restrictions are a blunt tool that fails to give a voice to local communities
February 2, 2013
Renewable energy developers are hoping the government will prevent a growing number of county councils from imposing wind farm buffer zones, which could severely restrict developments across the country.
Buffer zones are designed to prevent turbines from being installed too close to people’s homes, but developers fear that stringent restrictions could effectively block the development of wind farms in potentially suitable locations.
At least eight local authorities in England either already have formal buffer zones in place or are seeking to mark out areas of up to two kilometres around residential properties where turbines cannot be built.
Lincolnshire County Council is among those seeking a buffer zone of 700 metres, and South Cambridgeshire has consulted on a 2km restriction, while Hampshire last week confirmed a blanket ban on new wind farms built on council land.
Stratford on Avon District Council, Northumberland County Council, Cherwell District Council, Wiltshire Council, Milton Keynes and Rutland also have buffer zones planned or imposed already.
Meanwhile, the Scottish Conservative Party yesterday launched a report calling for councils to be given the power to end the “march of the wind farms”.
The wide-ranging paper, says councils should have to power to impose a one year moratorium on new wind turbine developments in Scotland, and encourages them to enforce existing planning guidance restricting wind farms that are closer than 2km to residential areas.
The document also calls for a 50 per cent cut in the subsidy for onshore wind farms and greater “local democracy” in planning decisions, at the same time as calling for more investment in shale gas exploration and nuclear power plants.
However, renewable energy developers have warned that buffer zones are too blunt a tool for ensuring governments strike the right balance between encouraging renewable energy generation and giving communities a voice.
Jenny Hogan, director of policy for Scottish Renewables, pointed out that the Scottish Government’s existing 2km guideline was designed to ensure that each wind farm application was judged on its own merits.
“The 2km proposal is a guideline and not a rule,” she said. “This is an important distinction because it’s imperative that communities, developers and decision makers are given the opportunity to make the case for or against any application. This avoids recommendations being made on the basis of imposed rules which may not be relevant to local circumstances.”
Jennifer Webber, of RenewableUK, also warned that proposals for buffer zones across the UK were creating uncertainty among both developers and their suppliers over the future of wind energy in certain regions.
RWE has already threatened Milton Keynes with legal action over the council’s decision to increase an existing 350m buffer zone to 600m-1km zone depending on the size of the turbine.
The utility, which has two wind farms that could fall in the new buffer zone, maintains the proposed rules clash with national guidance that sets out the need for renewable energy, as well as Milton Keynes Council’s own existing policies on wind energy.
Developers are now hoping that the Planning Inspectorate will refuse to give the go-ahead to new buffer zones, when local authorities submit their Local Plans for approval in March.
Webber said the Planning Inspectorate could yet dismiss the buffer zones in favour of the need to meet national renewable energy targets, adding that a recent increase in planning approval rates suggested most councils are taking a more strategic approach to onshore wind decisions.
But, outside of their formal Local Plans, councils can still include buffer zones in their planning guidance. There is also the risk an increasing number of councils will adopt a blanket ban similar to that confirmed in Hampshire last Thursday.
Haversham Wind Farm (recommended by officers for refusal)
Developer (RWE N-Power) have sent to appeal already.
Positive Speakers
Robin Baston RWE N-Power
• No Stake Holder objections
• Fulfils statutory obligations
• £30k pa community fund
• Well sited, well designed proposal
• Provided local economic growth
Alan Francis, local Green Party Parish Councillor for the Green Party
• Climate change having an effect
• Unwise for UK to depend on imported gas and oil
• Council’s report does not mention local planning policy that supports renewable energy
• Council signed up to reduce CO2 needs wind farms to do this
• SPD being used to refuse planning, despite contradicting national planning policy and local policies.
• NPPF says planning should support renewable energy
Councillor Middleton
• Spoke about the need for alternatives to unsustainable power sources and rising energy costs.
4 councillors voted to support officers’ recommendation to refuse planning and challenge appeal, 4 voted against, chair decided to uphold recommendation.
Nun Wood Wind Farm (again recommended for refusal)
Council has previously unanimously refused planning, overturned at appeal, council successfully challenged appeal, developer re-proposing/challenging councils successful challenge.
This time 4 councillors voted to support officers’ recommendation to refuse planning, 4 voted against, chair decided to uphold recommendation.
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