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Clean energy e-briefing: UK: Update on impact of UN ruling on wind farm developments

  • United Kingdom
  • Energy and infrastructure - Clean energy

11-09-2013

A recent UN ruling against the UK’s National Renewable Energy Action Plan (NREAP) will not threaten future wind farm developments.

On 27 August 2013, an article published in the Independent claimed that the recent ruling of the United Nations in respect of the UK’s NREAP an is a ‘game-changer’ for future wind-turbine developments in the UK, and called into question the legal validity of any further planning consent for all future wind farm developments. This article is intended to reassure developers that the ruling will not have an effect on planning decisions relating to wind farm developments.

The article reveals how the UK Government has been held by the UN to have acted illegally in its implementation of the NREAP, since it denied the public certain decision-making powers and failed to provide the ‘necessary information’ outlining the benefits and adverse effects of the NREAP. As such, the UK is in breach of the requirements of Article 7 of the Aarhus Convention.

Environmental lawyer, David Hart QC, is quoted as saying, “This ruling means that consents and permissions for further wind farm developments in Scotland and the UK are liable to challenge on the grounds that the necessary policy preliminaries have not been complied with, and that, in effect, the public has been denied the chance to consider and contribute to the NREAP”.

Our response to the article

The following is a summary of the key points we make in response to the article:

1. The challenge only affects the NREAP, not planning documents

The UN ruling is limited in that it only affects the NREAP, stating that this should have been consulted on in line with the Aarhus Convention. Similar claims of non-compliance made against other plans and policies were rejected by the UN.

It is important to note that, unlike the National Planning Policy Framework and local plans, the NREAP is not a planning document against which planning applications are determined. Rather, it is a wider Government document setting out the UK’s strategy for reaching its 2020 renewable energy target. Therefore, the fact that this document has been challenged will not have an effect on future wind farm developments by determining their planning application outcome.

2.  Only future NREAPs are affected

The ruling only applies to the extent that future NREAPs should be consulted on in line with the requirements of the Convention.  There has been no successful challenge made against the content of the existing NREAP itself. Therefore, the challenge has limited practical impacts.

3.  The NREAP was compliant with the Convention at the time of publication

The Aarhus Convention sets out certain requirements for public participation in the formation of plans and projects, which must be reflected in EU Directives where relevant. At the time of the Renewable Energy Directive, NREAPs were not deemed to be ‘plans’ for the purposes of the Convention, and were therefore subject to their own individual requirements on consultation. As such, public consultation was not actually necessary at the time of publication.

4.  A ‘recommendation’ only

In any event, the UN does not have the power to make binding directions directly against the UK, so the ruling should be considered as a recommendation only. Therefore, this will not have a significant impact on developers.

5.  A similar ruling in Ireland had no impact on wind farm projects

In June 2012, a similar UN ruling was delivered in Ireland in respect of its NREAP, and this did not have a negative effect on wind farm developments. The current ruling is treated as having a similar effect, and is therefore benign.

6.  Positive aspects of the ruling

The positive conclusions drawn by the UN in respect of other planning matters provides useful clarification for developers. For instance, the ruling confirms that the Scottish planning policies and the planning process were deemed to be compliant with the Convention, and that the requirement to have regard to views expressed as part of the public consultation does not amount to a right to veto.

Therefore, developers can be rest assured that the recent UN ruling should not impact planning decisions relating to wind farm developments, since the NREAP is not a planning document and in any event did undergo the correct consultation process when it was first published. Furthermore, the challenge is made in respect of the UK NREAP only, not Scottish and UK planning documents, and is only applicable to future NREAPs. Therefore, proposed wind farm developments should not be affected by the ruling.

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