Council to review wind turbine policy after High Court rejects residential "buffer zone"

Out-Law News | 17 Apr 2013 | 3:53 pm | 2 min. read

A council could not amend its wind turbine planning policy to ensure a larger "buffer zone" between turbines and residential properties than that already set out in its local plan, the High Court has ruled.

In its judgment the court said that a supplementary planning document (SPD) produced by Milton Keynes Borough Council, "conflicted" with the council's existing policy. The SPD stated that wind turbines over 25 metres in height must be positioned at least 350m from residential dwellings, with the separation distance increasing to over one kilometre if the turbines were higher than 100m.

In a statement, the council said that it would review its policy. The High Court found in favour of the council on three of four grounds for judicial review brought against it by energy company RWE Npower, it said.

Local authorities can produce SPDs to provide them with guidance on local planning matters. Under the Town and Country Planning (Local Planning) (England) Regulations, they must be consistent with national planning policy and the relevant regional plan. The council introduced the SPD in dispute in July 2012.

RWE Npower, which has two proposals for wind farms under consideration in the area, challenged the SPD on the grounds that it conflicted with the existing policies of both the council, and the Government. According to the judgment, the company claimed that if the council's "emerging policy" on separation distances was valid, other local planning authorities in England could adopt similar proposals. This would "put any proposal at risk of rejection on arbitrary grounds and nullify national guidance which encourages the development of renewable energy", it said.

Overturning the SPD, John Howell QC said that there was a conflict between it and the council's existing planning policy, which set a separation distance of 350m regardless of the height of the proposed turbine.

"In my judgment, no reasonable person could have concluded that the minimum separation distances from any residential dwelling in excess of 350m specified in the 'Emerging Policy' were not in conflict with the adopted development plan," he said.

"Policy D5 in that Plan states that, if certain other conditions are satisfied, planning permission will be granted for a wind turbine if it is at least 350m from any residential dwelling. Only if a proposed turbine meets the minimum distances in excess of 350m specified in the 'Emerging Policy', however, will planning permission be granted for it in accordance with that policy. In substance, therefore, the 'Emerging Policy' seeks to amend the relevant minimum distance requirement in Policy D5 and is plainly in conflict with it," he said.

Although the other elements of the SPD, including guidance on the minimum separation distance between turbines and public footpaths and bridleways, were not in conflict with the existing policy, the court said that it could not be sure that the council would have adopted an SPD containing these policies alone. As a result, the whole document was overturned.

Andrew Geary, head of Milton Keynes Borough Council, said that it was "rather ironic" that the reason the SPD was overturned was that the council already had separation distances in place within its policy.

"Had we had no policy we would have won," he said. "Any authority that doesn't have a separation distance in policy should sit up and take notice of today's judgment. 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."

However Dr Wayne Cranstone, a projects director with RWE Npower Renewables, pointed out that the judge had reached more general conclusions on whether local authorities should be able to impose 'buffer zones' between turbines and homes or public pathways.

"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," he said.

"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," he said.

We are processing your request. \n Thank you for your patience. An error occurred. This could be due to inactivity on the page - please try again.