Renewable Energy from Wind and Solar Power: Law and Regulation

William Webster is a tenant at 3 Paper Buildings, practising in land and planning law and related fields. He is a member of the Chancery Bar Association and the Property Bar Association. William is joint author of Restrictions on the Use of Land and author of Planning Law: A Practitioner’s Handbook (Wildy, Simmonds & Hill). For the past three years he has featured in the Legal 500 in the fields of construction, environment and planning law.

"Of particular use to practitioners is the case study section in which Webster has identified the critical issues upon which the various cases turned. This will doubtless be of assistance to those promoting and resisting applications."Dr Ashley Bowes - Editor of the Journal of Planning and Environmental Law

• 1INTRODUCTIONScope of introductionClimate changeThe UK’s record on climate changeThe UK’s sources of energyBrief statistical overview (fossil fuels and renewables)Sites generating renewable electricity at the end of December 2019European energy policyUK renewables’ policiesAvailability of financial assistance for the generation and export of renewable energy to the gridComment – should the planning balance change when it comes to renewable energy applications?2OVERVIEW OF THE REGULATORY FRAMEWORK AFFECTING WIND AND SOLAR ENERGY DEVELOPMENTSOnshore energyPermitted developmentPlanning Act 2008Electricity Act 1989: section 36 consents for onshore and offshore electricity generationVarying section 36 consentsEnvironmental standardsEuropean sitesEnvironmental assessmentExemption from consent requirementDeemed planning permissionFEPA licenceOverhead electricity linesDeemed planning permission for overhead linesPublic inquiries where there are objections to section 36 and section 37 applicationsAncillary or supporting facilitiesCompulsory purchase powersPosition in WalesKey elements of planning lawDevelopmentPlanning permissionNational Planning Policy Framework in EnglandSustainable developmentPlan-making: key principlesDecision-making: key principlesPlanning conditions and obligationsThe rural economyGreen Belt landProposals affecting Green Belt landClimate changeConserving the natural environmentConserving the historic environmentUK Solar PV Strategy (Parts 1 and 2)3NATIONALLY SIGNIFICANT INFRASTRUCTURE PROJECTSIntroductionPolicy StatementsThe statutory process (i.e. that relevant to wind and solar energy)Nationally Significant Infrastructure Project regime in Wales4ENVIRONMENTAL IMPACT ASSESSMENTIntroductionPurpose of Environmental Impact AssessmentOverview of Environmental Impact AssessmentWhen is an Environmental Impact Assessment required?Procedure for deciding whether a Schedule 2 project is likely to have significant effects on the environmentObtaining a screening opinion from the local planning authorityTreatment of multiple applicationsCan an Environmental Statement be submitted without a screening opinion?What if a planning application for a Schedule 2 development is not accompanied by an Environmental Statement?Called-in applications where there is no Environmental StatementProcedure for planning appealsDetermining planning applications that have been subject to an Environmental Impact Assessment5HABITATS AND SPECIES REGULATIONS 2017IntroductionOverview of the Habitats Regulations 20176PLANNING GUIDANCE RELEVANT TO WIND AND SOLAR ENERGY DEVELOPMENTSIntroductionRegulatory framework underlying decision-makingNational Planning Practice Guidance – Guidance on climate changeNational Planning Practice Guidance – Guidance on renewable and low carbon energyElectricity development consentsDecommissioning offshore renewable energy installationsWayleaves and compulsory purchase orders7WIND FARMSIntroductionWritten Ministerial Statement applying to proposed onshore wind energy developmentReport of the House of Commons Science and Technology Committee published on 22 August 2019Repowering existing onshore wind turbinesHow do offshore and onshore wind farms work?How efficient is wind power?How much of the UK’s electricity comes from wind power?Advantages of offshore windDisadvantages of offshore wind (see also onshore wind farms where there is some overlap)Seven of the ten largest offshore wind farms in the world are in UK watersAdvantages of onshore windDisadvantages of onshore windChecklist of requirements for wind energy projectsCost and overheads of wind turbinesRepowering/decommissioning wind farms8CASE STUDIES INVOLVING WIND POWER PROJECTSI Permission Granted for Four Wind Turbines near to an Area of Outstanding Natural BeautyII Wind Farm Close to Listed BuildingsIII Wind Turbine in Green BeltIV Wind Turbines and Community Benefits as Material ConsiderationsV Policies Requiring Exceptional Circumstances in the Context of a Wind Farm Development involving Seven Wind Turbines on Land in PowysVI Varying Conditions whose Effect was to Change the Description of the Development (Concerning Two Wind Turbines)VII Community Benefits as Material Considerations – Appeal Against a Decision to Uphold the Quashing of a Grant of Planning Permission for a Wind TurbineVIII Permission for Onshore Substation to Support Major Offshore Wind FarmIX Approval of Wind Farm Despite the Turbines Exceeding Local Policy Height RestrictionsX Proposal for Eight Wind Turbines Fails on Adverse Landscape and Visual ImpactsXI Proposal for Five 125m High Wind Turbines Allowed on OrkneyXII Lifetime of Wind Farm Extended on Basis that the Proposal Involved Repowering and was not a Fresh ApplicationXIII Approval Given to 14-Turbine Wind Farm Despite Concerns about 19km Access TrackXIV Ten-Turbine Wind Farm Approved despite Landscape ObjectionsXV Single Wind Turbine on Green Belt close to Heathrow RejectedXVI Five Wind Turbines Refused on Significant Environmental GroundsXVII Single Turbine Allowed where Area of Outstanding Natural Beauty Landscape and Visual Impacts Found to be Minor (Involving Heritage Issues and Local Planning Authority’s Declaration of Climate Emergency)XVIII Benefits Associated with the Generation of Renewable Energy and Climate Change Considerations still Insufficient to Outweigh Adverse Impacts on Landscape and Visual Effects Could Not Satisfactorily be MitigatedXIX Renewable Energy Benefits still Insufficient to Outweigh Adverse Landscape ImpactsXX Permission Refused for a Development Consent Order Extending the Thanet Offshore Wind Farm on the Ground of Navigational RisksXXI Development Consent Granted for 158 Wind Turbines off the Norfolk Coast (Decision recently quashed and subject to re-determination)XXII Development Consent Granted in Principle for 231-Turbine Hornsea Project Three Offshore Wind Farm in the North Sea, although a Final Decision was Delayed to Allow for Final Approval of Measures to Cover Adverse Impacts to the Kittiwake Population and Coastal Special Protection AreaXXIII Unacceptable Landscape and Visual Impacts Preclude 30-Turbine Wind Farm in an Area of Great Natural Beauty in Dumfries and GallowayXXIV Single Wind Turbine Allowed in Close Proximity to Existing Wind Farm9SOLAR ENERGYPhotovoltaic systemSolar cellsTypes of photovoltaic systemsPerformancePhotovoltaic mountingCablingSolar trackerBatterySelling solar electricity back to the grid (domestic installations)How much electricity do solar panels produce and how many panels might one need for a dwelling?How much do residential solar panels cost?Commercial-scale ground-mounted solar photovoltaic – bullet pointsMinisterial Statements affecting solar energy (as material considerations)10CASE STUDIES INVOLVING SOLAR POWER DEVELOPMENTI Whether the Effect that Development might have on Solar Panels on Neighbouring Residential Property was a Material Planning ConsiderationII Large Solar Farm in Green Belt Rejected on Landscape Grounds by Secretary of State on Recovered Appeal – Appeal DismissedIII 10MW Solar Farm Rejected because of Harm to Landscape – Appeal RefusedIV Solar Farm Rejected on Landscape and Heritage Grounds – Appeals RefusedV Domestic Solar Energy Proposal on Land Just Outside a National Park Rejected on the Basis of Green Belt Harm – Appeal DismissedVI Solar Panels Not Allowed on Grade II Listed Church – Appeal Partly AllowedVII Free-standing Solar Panels Not Allowed in Grounds of Country House in National Park – Appeal DismissedVIII Free-standing Solar Panels for Domestic Use Not Allowed in Green Belt and Area of Outstanding Natural Beauty – Appeal DismissedIX 13.6GWh Solar Farm on 16 Hectare Site Rejected because of Adverse Visual and Heritage Impacts – Appeal Dismissed