Global menu

Our global pages

Close

UK: Compulsory pre-application consultation for onshore wind

    • Energy and infrastructure - Clean energy

    07-01-2014

    New legislation has come into force that will make pre-application consultation (“PAC”) compulsory for virtually all proposed onshore wind farms.

    The legislation

    The Town and Country Planning (Development Management Procedure and Section 62A Applications) (England) (Amendment) Order 2013 (“2013 Order”) came into force on 17 December 2013.

    The 2013 Order specifies that the requirement to carry out PAC under Section 61W of the Town and Country Planning Act 1990 (“1990 Act”) shall now apply to all onshore wind development of more than two turbines or where the hub height of any turbine exceeds 15 metres (“the PAC threshold”).

    The 2013 Order follows the coming into force of the Localism Act 2011 which introduced the concept of extending compulsory PAC, a key element of the Planning Act 2008 (“2008 Act”), to other large planning applications outside the scope of the 2008 Act. It also follows the UK Government’s commitment to extend PAC in June this year after a 'call for evidence' on increasing community engagement with onshore wind farms.

    Whilst many developers already voluntarily consult at the pre-application stage, the changes introduced by the 2013 Order mean PAC is now mandatory. It is therefore crucial developers engage with the relevant planning authority to ensure their forthcoming planning applications fully comply with the new requirements.

    The new requirements

    The new requirements to undertake PAC apply to all applications for planning permission made to the Local Planning Authority (“LPA”) and applications for planning permission made directly to the Secretary of State under Section 62A of the 1990 Act. The 2013 Order specifies that PAC will not apply to applications made pursuant to Section 73 of the 1990 Act to develop land without compliance with conditions previously attached or certain applications for a replacement planning permission subject to a new time limit. Note that the 2013 Order only applies in England and will cease to have effect in 2018.

    The PAC requirements introduced by the 2013 Order are set out under Section 61W of the 1990 Act. Section 61W specifies that applicants must:

    • consult all persons specified in a development order or of a description specified in a development order, about the proposed application;
    • publicise the proposed application in such a manner as they reasonably consider is likely to bring it to the attention of a majority of the persons who live at, or otherwise occupy, premises in the vicinity of the land;
    • publicise how persons wishing to comment on the proposed development may contact them and give such information about the proposed timetable for the consultation as is sufficient to ensure persons wishing to comment may do so in good time.

    There is a degree of ambiguity as to what an applicant is specifically required to do under Section 61W therefore early engagement with the planning authority, and consideration of any local guidance on PAC, is essential. Section 61W(7) supports that approach by placing a statutory duty on applicants to have regard to the advice given by the LPA about local good practice.

    The 2013 Order also inserts a new Article 3B into both the Town and Country Planning (Development Management Procedure) (England ) Order 2010  and the Town and Country Planning (Section 62A Applications) (Procedure and Consequential Amendments) Order 2013. Article 3B requires applicants to provide particulars of the PAC they have undertaken when submitting their application for planning permission. Particulars must include details of:

    • how the applicant complied with the duty to carry out PAC under section 61W(1) of the 1990 Act;
    • any responses to the consultation that were received by the applicant; and
    • the account taken of those responses.

    Applicants should seek direction from the planning authority as to what form this information should be provided in.

    Comment

    As the vast majority of wind farm developers already carry out PAC in accordance with Section 61W of the 1990 Act, it is unlikely that the 2013 Order will have a major impact on existing protocols. However, with further guidance on the new requirements expected in the coming months, the devil will be in the detail.

    Developers should be aware that the consequence of failing to comply with the new legislation will be non-validation of the application for planning permission. In order to avoid such disputes at the validation stage, we would encourage developers to agree any PAC requirements with the LPA at the outset of the project. Liaising with the planning authority to ensure full compliance with the statutory framework will also reduce the risk of legal challenge at a later stage.

    For more information contact

    < Go back

    Print Friendly and PDF
    Subscribe to e-briefings