Out-Law Analysis 7 min. read
12 Feb 2024, 11:20 am
There is growing evidence – bolstered by a ruling handed down last week – that changes made to planning policy a year ago are having a material and positive impact on the ability of onshore wind developers to obtain consent for their projects in Scotland.
The fourth version of the national planning framework (NPF4), which took effect on 13 February 2023, provides a strengthened need case for onshore wind projects amidst the climate and nature crises and enhances the weight given to combatting these crises by decision-makers over other factors that can weigh against consent being granted – including concerns raised about the visual impact of wind farms or their effect on local landscapes.
The change in policy has already resulted in the consenting of several projects that would not have been approved under the old policy and supports developers that are now exploring other sites that may have previously been considered unlikely to obtain consent.
The revised policy also applies to ‘repowering’ projects, where developers upgrade wind turbines at an existing site to increase generation capacity or efficiency, in a further change that makes it easier for the UK to hit its renewable energy targets in the years ahead.
While Scotland compares favourably to England as a jurisdiction for onshore wind development, we have seen, in some projects Pinsent Masons has advised on in Scotland over the years, how decision makers in the planning process considered other local amenity factors to weigh more heavily than the national need to build onshore wind generation capacity to meet national renewable energy and greenhouse gas emission reduction targets.
For example, wind farm refusals are almost always based on landscape and visual or residential amenity concerns, which are highly subjective in nature. Most local planning authorities have areas of countryside within their boundaries which are designated as local landscape areas, which opponents to wind farm schemes argue should make them effectively off-limits for onshore wind development, notwithstanding they are not categorised as National Scenic Areas or National Parks – nationally recognised beauty spots that have a protected status under planning policy. This has led local decision makers to refuse consent for some onshore wind projects on or near such land, even if there has been an absence of significant objections from the local community.
Under NPF4, however, the dial has shifted. Decision makers are obliged to give significant weight to the global climate and nature crises when considering all development proposals. The policy further strengthens support for all forms of renewables development – including wind farms. Additionally, larger wind farms – over 50MW installed capacity – are now categorised as “national development”, which means they are regarded by government as developments giving rise to benefits of national importance. Under NPF4, developments which affect a local landscape area can be supported provided they deliver benefits of at least local importance, which means that wind farms over 50MW can be supported in such areas.
The change in policy has already had a practical impact as demonstrated by two projects that had been heading for refusal – the Clashindarroch II Wind Farm in Aberdeenshire, and the Shepherds' Rig Wind Farm in Dumfries and Galloway – but which were given the go-ahead last year
The revised policy does lay down conditions on support for proposed onshore wind development, with the aim of ensuring local employment and business opportunities are maximised. It also retains the long-standing prohibition on development in National Parks and other national beauty spots, and decision makers do have scope too to refuse consent for development that “by virtue of type, location or scale will have an unacceptable impact on the natural environment”, among other factors they can refer to. However, the policy is generally supportive of onshore wind development in a greater number of locations, including on prime agricultural land and peatland, than was the case previously.
The change in policy has already had a practical impact as demonstrated by two projects that had been heading for refusal – the Clashindarroch II Wind Farm in Aberdeenshire, and the Shepherds' Rig Wind Farm in Dumfries and Galloway – but which were given the go-ahead last year.
In those cases, Scottish government reporters had been appointed to manage a public inquiry into the proposed developments. The reporters had considered the plans under the previous planning policy and considered that they should not be consented. They made recommendations to Scottish government ministers to that effect, but by the time those ministers came to make their decisions in those cases, the NPF4 had taken effect. This necessitated the reopening of the inquiry and reconsideration of the proposed developments under NPF4, with both projects subsequently being granted consent last summer.
The Clashindarroch II decision was subsequently challenged by wildcat conservationists on grounds relating to NPF4’s biodiversity policy. However, in a helpful ruling handed down on 8 February, the Outer House at the Court of Session in Edinburgh dismissed the judicial review challenge, rejecting claims that government ministers had acted unlawfully in how they had applied NPF4 in making their decision.
The ruling … clarifies that … NPF4’s biodiversity policy does not require the decision maker to adopt a very stringent sequential approach – i.e. first avoid, then minimise, after which offsetting can be considered – to mitigation measures
While the ruling highlights the care developers must take to preserve nature networks and promote biodiversity enhancement, it clarifies that developers have a degree of flexibility over the mitigations they can apply to address potential related impacts and NPF4’s biodiversity policy does not require the decision maker to adopt a very stringent sequential approach – i.e. first avoid, then minimise, after which offsetting can be considered – to mitigation measures. In turn, the weight that decision makers give to mitigation proposals is entirely a matter for the decision maker’s discretion, subject to that decision being rational.
In two further cases, the positive impact of NPF4 on the planning balance for onshore wind was confirmed by the respective government reporters. Robert Seaton, reporter for the Kirkan Wind Farm project in the Highlands, said “the new policies do ratchet the need case upward”, while Christopher Warren, reporter for the Sanquhar II Community Wind Farm that will span across land in both Dumfries and Galloway and East Ayrshire, said there had been “a tangible shift in planning policy … at the national level”. Warren said he believes this shift “may be sufficient to result in some windfarm proposals, which would previously have been refused under the former policy regime, to potentially now be granted consent”.
The practical impact of some elements of NPF4 on proposed onshore wind development is still to be fully clarified.
For example, in the context of landscape and visual effects, the policy emphasises that if the effects are localised, then this should not normally be an impediment to obtaining consent. Decisions post-NPF4 have, to date, provided mixed signals as to whether the concept of localised in this context means the impacts are restricted to a defined geographical area or is more nuanced, such that, for example, it means an onshore wind farm which has localised effects in a geographic sense, but which affects a regionally important receptor, such as a popular hill walking route, would be considered to have an effect that is greater than localised.
Where the ‘localised’ criterion has been applied in the geographic sense, we have also seen considerable variety in the distances judged by decision makers to be a localised impact, with anything from 2km out to 20km in one case, though the median is more often a distance of around 5-10 km. Impacts confined to within 5km are highly likely to be considered localised.
One of the elements of the new policy states that if a wind farm is deemed to be acceptable in a particular location, then the default assumption is that the use of that site for wind farm development is acceptable in perpetuity
It is also clear that, in spite of the strengthened need case for onshore wind projects provided for under the policy, it is not a trump card and there remain potential barriers to development on certain sites – in particular, where there are significant effects on a ‘scheduled monument’ – designated monuments of national importance. The early cases under NPF4 where this issue has been relevant have shown that the climate emergency will not be accepted as being an exceptional circumstance to justify development that would have significant adverse impacts on the integrity of a scheduled monument.
Whilst the overall consent success rate of projects of the largest onshore wind projects – over 50MW – has so far remained broadly static, 77% before NPF4 and 77% after, this probably reflects that the sites developers have within their portfolios are increasingly challenging to deliver and the larger turbine models now in use can give rise to greater levels of impact. The NPF4 reforms mean that these more marginal sites are more likely to clear the consenting process as decision makers now have less discretion to rely on local landscape designations or visual impacts, among other factors, as a reason for refusing applications for consent. In other words, without the positive policy provision in NPF4, consent success rates would likely be falling.
The fact the policy is explicitly applicable to repowering projects is also a welcome development. One of the elements of the new policy states that if a wind farm is deemed to be acceptable in a particular location, then the default assumption is that the use of that site for wind farm development is acceptable in perpetuity. In practice, while arguments will still be raised as to the greater visual impact of the repowering proposals for example, the starting point is that it is acceptable for there to be turbines operating on the site and therefore it should only be any difference in appearance of proposed new turbines – such as their size – that should be factored into the decision-making process.
Repowering will play a critical role firstly in the achievement of the Scottish government’s target of achieving 20GW of operational onshore wind generation capacity in Scotland by 2030 and in maintaining that capacity thereafter. A pipeline analysis carried out by BVG Associates for Scottish Renewables suggests that meeting this 2030 target relies on both repowering existing onshore wind farm sites and reconsenting approved proposals which have a blade tip height of lower than 150m, to permit larger turbines and modified layouts.
Overall, care is still needed in site selection and appropriate design mitigation – NPF4 energy policy will not automatically or always trump all other factors. However, the overwhelming policy picture is positive for onshore wind development in Scotland. That is especially so when compared to the position in England where the corresponding national policy continues to serve as a de-facto ban on such projects
26 Jan 2024