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64MW Wind Farm Granted in the Highlands

  • United Kingdom
  • Real estate planning - Planning briefings
  • Energy and infrastructure - Clean energy

28-08-2019

Eversheds Sutherland has helped to secure Electricity Act 1989 consent from the Scottish Ministers and deemed planning permission for Limekiln Wind Farm, a 21 turbine wind farm with an estimated generation capacity of 64MW based in the Highlands. The application raised controversial issues, particularly in relation to the nationally important asset of Scotland’s identified Wild Land Areas and the relationship between such assets and facilitating the deployment of renewable energy.

This decision will be of interest to those proposing renewable energy projects which may impact on Wild Land Areas. It also demonstrates the critical importance of a cohesive application strategy which anticipates increasingly critical issues for renewable energy projects: proximity to landscapes of recognised or statutory importance given the existing widespread deployment of turbines and demonstrating benefits relevant to the local area beyond climate change mitigation and adaptation.

We advised Limekiln Wind Limited in respect of the EIA Report, provided strategic advice in relation to the preparation and submission of this application under Section 36 of the Electricity Act 1989) and managed the project through the public inquiry process (triggered as a result of The Highland Council’s (“the Council”) objection).

We previously advised Limekiln Wind Limited in relation to an earlier wind farm scheme on the same site, a 24 turbine wind farm with an estimated generation capacity of 75MW. The Council’s objection alleged that the scheme was contrary to the adopted Local Development Plan due to significant detrimental landscape and visual impacts.

As part of its inquiry evidence, the Council pursued an additional line of objection in relation to alleged impacts on the East Halladale Flows Wild Land Area. Ultimately the Reporters recommended refusal of consent and deemed planning permission on the basis that whilst acceptable in all other respects, they did not consider that it had been sufficiently demonstrated that the proposal would not have a significant adverse impact on wild land.

Most unusually, and with no explanation as to why, the Scottish Ministers agreed with the recommendation of the Reporters and refused consent, without seeking additional information in respect of this late and retrospective line of objection by the Council.

In light of the overall finding for the earlier scheme, we provided strategic advice on the resubmission scheme. The Council’s planning officers recommended to Council Members that no objection be made subject to the relocation/removal/reduction in height of three of the turbines, taking into account an objection from Scottish Natural Heritage (“SNH”) regarding perceived potential wild land area impacts. However, the Members resolved to object and a formal objection letter was issued, triggering a requirement for a public inquiry.

In light of comments from the Council and other consultees, as well as specific site constraints, Limekiln Wind Limited formally amended the scheme to remove the three turbines of concern. The amendment was accepted by the Reporters and the revised 21 turbine scheme was considered at the public inquiry for determination.

A core element of the strategy for the resubmission Limekiln proposal was to demonstrate substantive benefits. In addition to the more usual benefits (such as job generation and a community benefit fund), the Limekiln proposal also offered shared ownership to the local community. In addition, a Unilateral Undertaking was prepared under s75 of the Town and Country Planning (Scotland) Act 1997 which detailed a number of commitments by the landowner and developer, comprising an alternative forestry access route avoiding the village of Reay to alleviate traffic concerns, the employment of a locally sourced gamekeeper and access improvement works on the landowner’s estate. These were considered to be material planning considerations in the decision-making process.

A nearby s36 scheme, known as Drum Hollistan Wind Farm comprising 17 turbines of up to 140m to blade tip, was required to be considered cumulatively with Limekiln Wind Farm and also had similar objections from the Council and from SNH. In light of the common issues for consideration, proximity to each other in cumulative terms and that both schemes were to proceed by way of public inquiry, the two schemes were conjoined and heard together. The John Muir Trust and a local action group also presented evidence to the public inquiry in opposition to the scheme.

The decisions for Limekiln Wind Farm and Drum Hollistan Wind Farm were released simultaneously in late June 2019, with consent granted and planning permission deemed to be granted for Limekiln and consent refused for Drum Hollistan.

Despite SNH and the Council pursuing a case against Limekiln Wind Limited in respect of wild land impacts, the Reporters concluded that the significant effects upon wildness arising as a result of the proposed development would not be detrimental to the qualities of the wild land area and that the effects would not undermine the area’s integrity as a whole. The Reporters did weigh these effects in the balance against other relevant considerations, ultimately concluding that all environmental matters had been adequately addressed in accordance with Schedule 9 of the Electricity Act 1989 and that the benefits of the scheme outweighed its adverse impacts. The Scottish Ministers agreed with the Reporters’ conclusions.

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