Landmark ruling threatens U.K. wind farms 

Lady Clark’s ruling on the Viking wind farm could be a god-send for local authorities struggling to field the never-ending stream of wind farm applications, according to anti-wind farm group Scotland Against Spin.

Experts agree that Lady Clark has put the cat amongst the pigeons, with hundreds of 10 MW+ wind farm application presently in planning facing extra uncertainty, delay and expense (1).

When the Court of Session recently upheld a challenge to a Section 36 consent for a wind farm in the Shetland Islands, press attention focussed on the Scottish Government’s failure to comply with the EU’s Wild Birds Directive in granting planning permission for the 103 turbine Viking Energy wind farm in April 2012 (2).

However, campaigners and their legal advisors have combed the report and seized upon a technical issue which they believe “throws into doubt the legality of wind farm operators in Scotland who do not have OFGEM licences or exemption from DECC”. In particular, Lady Clark’s ruling casts doubt on the power of Scottish Ministers to grant consent to “non-licence-holders” under the 1989 Electricity Act for 50 MW+ wind farms (3).

Scottish Borders Council has taken the lead by writing to the Energy Consents and Deployment Unit about the Section 36 application for Rowantree wind farm near Oxton. SBC’s solicitor has argued that it follows from Lady Clark’s ruling that the application is not “competent” and “falls to be immediately refused without any further procedure of any kind”. According to SBC the applicant, RWE Npower Renewables Ltd. is “not a licence-holder, and is not an exempt person within the meaning of the 1989 Act” (4).

“There is little doubt other hard-pressed local authorities will follow in SBC’s footsteps”, said Graham Lang, Chair of national anti-wind farm alliance Scotland Against Spin.

“Scotland is being besieged by speculative wind farm applications which are time-consuming and expensive for local planning departments, and increasingly unpopular with the communities they threaten.

Some planning authorities such as Borders, Dumfries and Galloway, and Aberdeenshire have been stretched to breaking point by the never-ending pressure to accept unlimited numbers of turbines in their areas. The Scottish Government has denied several local authorities moratoria on wind farm applications and has bullied councils into making more sites available to developers.”

Mr Lang added: “Senior counsel has also advised anti-wind farm campaigners across Scotland that Lady Clark’s ruling in fact applies to all wind farm developments of 10 MW and above, not just the ones of 50 MW and above which are Section 36 applications. Since very few applicants will have OFGEM licences or exemption from DECC before consent, objectors to applications for 10 MW+ wind farms currently in the planning process will be arguing that these should be refused by planning committees and reporters without further ado.”

“It’s no surprise the Scottish Government is appealing Lady Clark’s ruling. It could hardly do anything else. If and until her ruling is overturned, it will stand and any 10 MW + application presently in planning that is not licenced or exempt is potentially stalled.”

Notes:

(1) See for example comments at

www.out-law.com/en/articles/2013/september/viking-energy-decision-on-legality-of-section-36-planning-consent-a-departure-from-industry-practice-says-expert/

www.scotsman.com/news/environment/snp-wind-farms-plan-suffers-legal-setback-1-3122700

(2) The Opinion is at www.scotcourts.gov.uk/opinions/2013CSOH158.html

(3) Generation licences are granted by the energy regulator, Ofgem. The following web page explains Ofgem’s responsibilities in this area and the criteria used to determine whether licences are granted.

www.ofgem.gov.uk/licences-codes-and-standards

DECC has responsibility for exemptions from the requirement for a licence. The following webpage gives more detail.

www.gov.uk/electricity-licence-exemptions

(4) SBC’s letter is attached.