UK: Compulsory Pre-Application Consultation Introduced For Tiny Wind Farms

Today's entry reports on the first example of compulsory pre-application consultation being applied to projects below the thresholds in the Planning Act 2008.

Tomorrow's news will be all about airports, but there is also a development affecting small wind farms, which will require pre-application consultation from that date.

Background

The Localism Act 2011 introduced a smorgasbord of planning reforms, amongst other things. One of these was the concept of extending compulsory pre-application consultation, a key element of the Planning Act 2008 regime, to other large planning applications below or outside the thresholds in that Act.

The impact assessment accompanying the Act envisaged that the new duty would apply to all residential developments of at least 200 units (or four hectares), and other developments involving at least 10,000 square metres of built development (or two hectares), meaning that around 3000 applications a year would be affected.

The duty to consult is less onerous than in the Planning Act, merely requiring the proposed application be publicised so that it is likely to be brought to the attention of the majority of people who live at or occupy premises in the vicinity of the land, and then any responses are required to be taken into account in preparing the application.

New legislation

Although enacted in November 2011, this section of the Localism Act has lain dormant without being brought into force at all - until now. And it is going to be for a very specific type of development with a much lower threshold.

From tomorrow, the provisions will apply to wind farms consisting of at least two turbines, or just one turbine if it is more than 15 metres tall (i.e. virtually all of them). Note that the Planning Act 2008 threshold is that the turbines will be capable of generating at least 50MW onshore or 100MW offshore, which if they are 3MW turbines would mean at least 17 of them onshore, or 34 offshore.

Analysis

The relevant statutory instrument can be found here.

The proposal is not unexpected, as the government committed to do it back in June, following a 'call for evidence' on increasing community engagement with onshore wind farms. Although not mentioned in the call for evidence as a proposal, the response document heralded this change at paragraph 3.2.

Why is the government doing this? I don't think the answer is a very edifying one - the government is in a bit of a bind as it is officially in favour of renewable energy, but gets a lot of local opposition to onshore wind farms. The Lib Dem energy secretary of state Ed Davey MP is also more in favour of them than the Conservative communities and local government secretary of state Eric Pickles MP. This move thus appears to be a hurdle being placed in front of wind farm applications in the guise of improving community engagement.

If wind farm developers get a lot of consultation responses opposed to their projects, but plough on and make an application, then an alleged failure to take the consultation responses into account may become an issue if the application is refused by the local authority and appealed, or 'called in' for decision by Mr Pickles. Of course a duty to take consultation responses into account isn't the same as saying that you must go along with what the responses say, or that it is effectively a vote on the proposal, as many Planning Act applicants will know, but if this becomes a contentious area and is given as a reason for refusal it could have implications for Planning Act projects. Definitely something to keep an eye on.

More generally, I wonder when, or indeed if, the pre-application consultation duty under the Localism Act will be introduced as originally intended. Over two years and there's no sign of it, although that is well behind the record for failing to commence legislation - the Easter Act 1928 fixed the date of Easter as the first Sunday after the second Saturday in April but has still not been brought into force after 85 years.

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