LEGAL EAGLES
RECENT PLANNING PROBLEMS IMPACTING ON LAND BASED WIND TURBINES
Planning problems continue to impact on the placing of land based wind turbines as can be seen from the judgement of the Administrative Court on 15th April 2013 whereby RWE Npower Renewables Ltd succeeded in its claim for judicial review of Milton Keynes Councils Supplementary Planning Document (SPD).
The SPD attempted to fix minimum separation distances between wind turbines and residential properties that were different from those already set out in the local plan. The Court quashed the entire SPD (even though parts of it delineating spacing between turbines and bridleways and footpaths was not in conflict with the local plan). The Council have indicated that they are appealing the decision, so it isn’t over yet.
RWE pointed out to the Council that its SPD conflicted with the Council’s local plan and also with government policy.
RWE’s claim for judicial review before the Court succeeded on a single ground, namely that the distances set out in the SPD were in conflict with the local plan and such a conflict is a breach of regulation 8 (3) of the Town and Country Planning (Local Planning) England Regulations 2012 which states that any
policies in an SPD must not conflict with an adopted development plan. There was a conflict between some of the spacing requirements in the SPD and the adopted development plan so the entire SPD was quashed.
OTHER KEY FINDINGS
Whether or not there is conflict in a particular case is determined by a test of – would a reasonable council conclude that the SPD was not in conflict with the local plan? Therefore it is not a pure question of interpretation for the Court. The provisions of the TCP Regulations 2012 defining which documents amount to SPDs and which local plans were extremely hard to interpret. The question of whether the document should have been adopted as a development planning document (and therefore subject to independent examination in public and assessment of its “soundness”) rather than as an SPD was not one for the Council’s discretion.
In adopting the SPD the Council had taken proper account of substantive national planning policies which give strong encouragement to wind energy. The wording of the SPD did not prevent the Council from assessing the acceptability of visual and noise impact of wind turbines on a case by case basis.
COMMENT
The case raises important issues about compliance of SPDs with adopted local and national policies.
It also illustrates the tensions between the National Planning Policy Framework which has a presumption in favour of sustainable development and the Localism Act 2011 which gives local authorities more flexibility in relation to local plans.
Gareth Hevey Denison Till
www.denisontill.com
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