Liddell in 2000. The 2003 Energy White Paper revised the established - - PDF document

1 0 th Chilterns AONB Planning Conference – 3 rd October 2 0 1 2 Notes from Tina Douglass Renew able Energy and the NPPF’s Planning constraints. Before dealing with the NPPF those who are not wind turbine nerds will need a little background information. Every UK government since Rio in 1992 has at least paid lip service to the need to tackle climate change. Reduction of energy consumption and alteration of the source of supply have been recognized as essential to achieving the reduction of greenhouse gases. Electricity generation is a major source of carbon emissions. In 2009 the UK emitted 491 million tons of carbon dioxide. Of that 151 million tons were attributable to the power sectori. Obviously addressing a sector which is responsible for 30% of emissions is important. Between 1990 and 2009 the emissions from generation fell by 26% . They did so, in the main, as a result of market forces changing the fuel source. The UK in the 1990’s began the “dash for gas”. It had recently privatised electricity companies; gas turbine power stations were quick to build which, with high interest rates, made them more economic than coal or nuclear; technical advances such as Combined Cycle Gas turbine generators increased efficiency and had lower capital costs; and, of course, the UK had North Sea gas. Between 1990 and 2002 the share of generation capacity attributable to gas went from 5 to 28% . Since gas is a cleaner fuel than coal inevitably the UK electricity energy sector looked good on the climate change gases front. The first targets for renewable energy, 5% of by the end of 2003 and 10% by 2010 'subject to the cost to consumers being acceptable' were set by Helen Liddell in 2000. The 2003 Energy White Paper revised the established goals for UK renewable sources to 10% of electricity generation by 2010 and 20% by 2020, though by 2007 the then Energy Minister Malcolm Wicks indicated that by 2020 the figure has 'got to be somewhere between 10% and 15% '. Subsequently the Low Carbon Transition Plan of 2009 made clear that by 2020 the UK would need to produce 30% of its electricity from renewables. Having signed up to a European Commitment to source 15% of our energy from renewables, and recognising that transport is not an easy sector to tackle, it may be that nearer 40% of electricity will have to come from renewable sources.

There are two main mechanisms which the government can employ to achieve its policy ends. Financial incentive and planning. Financial incentive for major commercial supply is provided by the Renewables

• Obligation. Introduced on 1 April 2002, the Renewables Obligation requires all

electricity suppliers who supply electricity to end consumers to supply a set an annually increasing portion of their electricity from eligible renewables sources For each eligible megawatt hour of renewable energy generated, a tradable certificate called a renewables obligation certificate(ROC) is issued by OFGEM. Suppliers can meet their Renewables Obligation by:

• acquiring and redeeming ROCs,
• paying a buy-out price equivalent to £40.71/ megawatt hour in 2012/ 13

and rising each year with retail price index. The number of ROCs for each technology potentially differs and can be varied as a result of a “Banding Review” by the government. For instance, onshore wind, previously in receipt of 1 ROC per MW has this year been reduced to 0.9.The RO will close to new generation on 31 March 2017. Generation which is accredited under the RO will continue to receive its full lifetime of support in the “vintaged” scheme after 2017. The scheme will close in 2037. There are other incentive mechanisms currently available: The Feed-in Tariffs (FITs) scheme was introduced on 1 April 2010, under powers in the Energy Act 2008, to encourage small-scale (less than 5MW) low-carbon electricity

• generation. There is also the Renewable Heat Incentive (RHI) which supports

generation of heat from renewable sources at all scales. The UK has been slow to recognise that it is not only renewable energy which is required but new generating capacity of all types. There have been a series of W hite papers: in 2003 Our Energy Future: creating a low carbon economy, in 2006 the Energy Review “The Energy Challenge”, in 2007 “Meeting the Energy Challenge”; in 2011 “Planning our electric future: a White Paper for secure, affordable and low-carbon electricity”. At first heartily resistant to nuclear energy government policy now recognises that emissions and short fall in base load capacity requires it. On 26 November 2008 the Climate Change Act became law. The Act puts in place a framework to achieve a mandatory 80% cut in the UK's carbon emissions by 2050 (compared to 1990 levels), with an intermediate target of between 34% by 2020. That Act gave rise to the UK Low Carbon Transition Plan in 2009, a national strategy for climate and energy. That document projected 40% of our electricity coming from renewable sources by 2020. It anticipated further

government support of technologies through the RO, streamlining the planning process, speeding up grid connections and developing supply chains. It noted the ongoing assessment of potentially suitable nuclear sites for deployment by 2025 and evinced strong support for Carbon Capture and storage. The streamlining of planning began in 2008. The Planning Act 2008 established the Infrastructure Planning Commission which began operating on 1 October

• 2009. It closed on 1 April 2012, with its functions transferred to a new

department within the Planning Inspectorate. Charged with determining energy developments of more than 50MW of installed capacity it is doubtful than much speed was achieved. It managed to approve only 65MW at Rookery South from waste in October 2011. Its functions have transferred to the National Infrastructure Planning department of PINs as a result of the Localism Act 2011. 2008-2009 was a busy period for Energy. The Renewable Energy Strategy was published in 2009. It set out that: More than 30% of our electricity needed to be generated from renewables, up from about 5.5% at that time. Much of this to be from wind power, on and offshore, but biomass, hydro and wave and tidal would also play an important role. 12% of our heat must also be generated from renewables and 10% of transport energy. It was concerned with energy rather than planning constraints. The word landscape appears only 12 times in 234 pages. Nonetheless it acknowledged that: “Renewable energy also has the potential for negative effects on the local environment. For example, an increase in the burning of biomass could affect local air quality, inappropriately located wind farms could affect landscapes, and new tidal infrastructure could affect marine species and important habitats. These impacts need to be addressed in line with the principles of sustainable development, taking full account of the costs and benefits” (par.176) and “The planning system plays a central role in delivering the infrastructure (par.4.9) we need to reduce our carbon emissions and ensure continued security of energy supply. Equally the planning system plays a vital role in safeguarding our landscape and natural heritage and allowing communities and individuals the opportunity to shape where they live and work.” Based on that document came the UKs report to Europe, under Article 4 of the Renewable Energy Directive 2009/ 28/ EC, the National Renewable Energy Action Plan.

Rather lagging behind these reports, reviews, White papers and strategies was the planning policy guidance. We had had PPG22 in, its annexes being published in 1994 and 2002. These were replaced by PPS22 in 2004 and accompanied by a companion guide. PPS22 was 20 pages of fairly coherent policy, setting out Key Principles which gave strong indications of how the planning balance should be conducted. It had 8 Key Principles to which Regional and local authorities should adhere. I have set them out for you in the Note. Those implying that deployment of RE might be constrained by other interests are (1) (2) (3) (7) and (8). (i) Renewable energy developments should be capable of being accommodated throughout England in locations where the technology is viable and environmental, economic, and social impacts can be addressed satisfactorily. (ii) Regional spatial strategies and local development documents should contain policies designed to promote and encourage, rather than restrict, the development of renewable energy resources. Regional planning bodies and local planning authorities should recognise the full range of renewable energy sources, their differing characteristics, locational requirements and the potential for exploiting them subject to appropriate environmental safeguards. (iii) At the local level, planning authorities should set out the criteria that will be applied in assessing applications for planning permission for renewable energy projects. Planning policies that rule out or place constraints on the development of all, or specific types of, renewable energy technologies should not be included in regional spatial strategies or local development documents without sufficient reasoned

• justification. The Government may intervene in the plan making

process where it considers that the constraints being proposed by local authorities are too great or have been poorly justified. [ (iv) The wider environmental and economic benefits of all proposals for renewable energy projects, whatever their scale, are material considerations that should be given significant weight in determining whether proposals should be granted planning permission.] [ (v) Regional planning bodies and local planning authorities should not make assumptions about the technical and commercial feasibility of renewable energy projects (e.g. identifying generalised locations for development based on mean wind speeds). Technological change can

mean that sites currently excluded as locations for particular types of renewable energy development may in future be suitable.] [ (vi) Small-scale projects can provide a limited but valuable contribution to overall outputs of renewable energy and to meeting energy needs both locally and nationally. Planning authorities should not therefore reject planning applications simply because the level of

• utput is small.]

(vii) Local planning authorities, regional stakeholders and Local Strategic Partnerships should foster community involvement in renewable energy projects and seek to promote knowledge of and greater acceptance by the public of prospective renewable energy developments that are appropriately located. Developers of renewable energy projects should engage in active consultation and discussion with local communities at an early stage in the planning process, and before any planning application is formally submitted. (viii) Development proposals should demonstrate any environmental, economic and social benefits as well as how any environmental and social impacts have been minimised through careful consideration of location, scale, design and other measures. It also gave advice on how targets should be set and if met be revised upwards if the environmental capacity of the area permitted it. The 186 p. Companions Guide advised “PPS22 sets out the policy context for action, and this Companion Guide offers practical advice as to how these policies can be implemented on the ground.” We had “Delivering Sustainable Development in 2005 and the PPS1 supplement

• n Climate Change was published in December 2007. That set out how planning

should contribute to reducing emissions and stabilising climate change. It was to be read alongside the national PPS/ G series. Where there was any difference in emphasis on climate change PPS1 supplement took precedence over the planning policy statements. It applied to all forms of development not just RE. RE policies should promote rather than restrict RE development, any local approach to landscape protection to be consistent with PPS22, core strategies and local development documents, should promote and encourage renewable and low carbon development, and not preclude any type of RE except in exceptional circumstances. It made it clear LPAs should not require applicants for energy development to demonstrate either the overall need for renewable energy and its distribution, nor question the energy justification for why a proposal for such development must be sited in a particular location.

PPS22 worked quite well. Of course there was argument over how the policies applied to any particular site and how PPS22 and the PPS1 supplement worked

• together. There is always tension between local interests and national need

particularly with wind energy which is stridently apparent in the landscape. LPA

• fficers tended to recommend approval, Members tended to refuse, applicants

almost invariably appealed. The success rate of those appeals ranged between 40-60% over the period it was in force, which suggests to me that the guidance was equally comprehensible to Members as it was to officers. It had to be read alongside all the rest of the PPS series. RE development, particularly onshore wind, has implications for a large range of interests: landscape character, visual impact, harm to setting of cultural heritage features, ecology (principally bats), ornithology, traffic and transportation, residential amenity affected by noise, dominant and oppressive visual impact and shadow flicker, hydrology and geology, tourism, air safety and even odd little interest groups such as horse riders. On many of these topics the PPS series gave detailed advice. Some of it was newly up dated with PPS5 being issued in March 2010 and updates to the rest of the series projected. Then we had a change of government in May 2010. On taking office Mr Cameron announced that this would be “the Greenest Government ever”. In July 2010 the new government exercised its new broom to sweep away the RSS, inevitably taking with them the regional targets for RE but leaving as material the background papers which generally had involved no consultation and in many areas were very poor pieces of work. In November of the same year the High Court explained that legislation was necessary to achieve the revocation and so the RSS, and targets, came back. After argument that SEA and consultation were or were not required the government has just, 14/ 09/ 12, delayed the revocation again to permit further EIA and consultation. A year later The Renewable Energy Roadmap was published. (July 2011). It set

• ut various scenarios in an endeavour to ascertain whether the ambitious

targets we had set ourselves could be achieved. It was confident that they could be and that the pipeline of proposals consented or coming through was healthy. It remained urgent that further permissions be granted in case some failed to come forward but on the whole it showed that good progress was being made. It was clear that offshore wind was taking off in a big way and that other technologies, such as biomass co-firing of coal plant, photovoltaics, and marine energy were expected to make a significant contribution. However the mature

• nshore wind technology would make a significant contribution in the short term.

By the end of that year it was obvious that the timescale for the deployment of some of these had been overtaken. The Roadmap looked for about 29GW of installed RE generating capacity. It expected about a 1/ 3rd to come from

• ffshore wind by 2020. 5.4GW were already installed, a further 3.57GW had

permission and are expected to come into production by 2016. The Industry confidently expects that 18GW will be installed by 2020 – and there are leases for a further 40GW. 18GW will provide approximately 17% of the UK electricity consumption. Also in July 2011 ENI the Overarching National policy Statement for Energy and EN3 the National Policy Statement for Renewable Energy Infrastructure were

• published. Their guidance, intended to guide determination of applications by the

IPC of developments of over 50MW but capable of being a material planning consideration, contained much that was poor boiling down of the PPS series but indicated that further guidance was to be found in those documents. They also applied to much of Wales’s energy deployment but gave little advice consistent with our TAN8 or PPW.

• The Energy Act received the Royal Assent on 18/ 10/ 2011. It established

the 'Green Deal', to finance energy efficiency improvements, facilitated tinkering measures such as the roll-out of smart meters and introduced measures designed to help improve energy security and to encourage low carbon generation. At last one comes to the NPPF. In March 2012, Greg Clarke, Minister of State for the Department for Communities and Local Government, gave the following statement: “I am delighted today to be publishing the national planning policy framework and our response to the Communities and Local Government Committee's report

• f 21 December 2011.

Our reforms to planning policy have three fundamental objectives: to put unprecedented power in the hands of communities to shape the places in which they will live; to support growth better to give the next generation the chance that our generation has had to have a decent home, and to allow the jobs to be created on which our prosperity depends; and to ensure that the places we cherish--our countryside, towns and cities--are bequeathed to the next generation in a better condition than they are in now.” That sounded great unless one had read the draft NPPF in 2011. Notwithstanding these misrepresentations and disregarding many but not all criticisms of the draft the NPPF was issued on 27/ 03/ 12. "We are replacing 1,000 pages of guidance with just 50 pages. We are introducing a presumption in favour of sustainable development, while protecting

• ur most precious environments.” “This is the biggest reduction in business red

tape ever undertaken." There was a good deal of media hype and a various Ministers were heard congratulating themselves about this reduction. After all, they said, Wales had a

short document. This was to disregard the series of Technical Advice notes in

• Wales. TAN 8, which deals with RE, runs to 60 pages. The 2011 version of PPW

is 200 pages disregarding the annexes. It may be shorter but it has not enhanced certainty. It is long on “sustainable development” and short on specific guidance towards achievement. “The purpose of the planning system is to contribute to the achievement

• f sustainable development. The policies in paragraphs 18 to 219, taken

as a whole, constitute the Government’s view of what sustainable de- velopment in England means in practice for the planning system. [ There are three dimensions to sustainable development: economic, so- cial and environmental. These dimensions give rise to the need for the planning system to perform a number of roles:

• ● an economic role – contributing to building a strong, responsive

and competitive economy, by ensuring that sufficient land of the right type is available in the right places and at the right time to support growth and innovation; and by identifying and coordinating develop- ment requirements, including the provision of infrastructure;

• ● a social role – supporting strong, vibrant and healthy communities,

by providing the supply of housing required to meet the needs of pre- sent and future generations; and by creating a high quality built envi- ronment, with accessible local services that reflect the community’s needs and support its health, social and cultural well-being; and

• ● an environmental role – contributing to protecting and enhancing
• ur natural, built and historic environment; and, as part of this, helping

to improve biodiversity, use natural resources prudently, minimise waste and pollution, and mitigate and adapt to climate change including moving to a low carbon economy. These roles should not be undertaken in isolation, because they are mu- tually dependent. Economic growth can secure higher social and envi- ronmental standards, and well-designed buildings and places can im- prove the lives of people and communities. Therefore, to achieve sus- tainable development, economic, social and environmental gains should be sought jointly and simultaneously through the planning system. The planning system should play an active role in guiding development to sustainable solutions. Pursuing sustainable development involves seeking positive improve- ments in the quality of the built, natural and historic environment, as well as in people’s quality of life, including (but not limited to):

• ● making it easier for jobs to be created in cities, towns and villages;

• ● moving from a net loss of bio-diversity to achieving net gains for na-

ture;

• ● replacing poor design with better design;
• ● improving the conditions in which people live, work, travel and take

leisure; and

• ● widening the choice of high quality homes.

Plans and decisions need to take local circumstances into account, so that they respond to the different opportunities for achieving sustain- able development in different areas.”] It sets out a threefold definition of sustainable development: the threads are economic, social and environmental. It aspires to protection of landscape, heri- tage and quality of life whilst providing necessary development and promoting the economy. The NPPF enshrines 12 core principles – only one of which is clearly relevant to RE- “support the transition to a low carbon future in a changing climate, taking full account of flood risk and coastal change, and encourage the reuse of existing resources, including conversion of existing buildings, and encourage the use of renewable resources (for example, by the development of renewable energy)”. It gives little guidance on how this is to be achieved. It defines what RE is – Note that it is not just electricity generation. [“Renewable and low carbon energy: Includes energy for heating and cooling as well as generating electricity. Renewable energy covers those energy flows that occur naturally and repeatedly in the environment – from the wind, the fall of water, the movement of the

• ceans, from the sun and also from biomass and deep geothermal
• heat. Low carbon technologies are those that can help reduce

emissions (compared to conventional use of fossil fuels).”] And it tells us a little about the supportive role of forward planning. I do not intend to read out the relevant sections: they are in front of you. [93. Planning plays a key role in helping shape places to secure radical reductions in greenhouse gas emissions, minimising vulnerability and providing resilience to the impacts of climate change, and supporting the delivery of renewable and low carbon energy and associated infrastructure. This is central to the economic, social and environmental dimensions of sustainable development.

• 97. To help increase the use and supply of renewable and low carbon

energy, local planning authorities should recognise the responsibility

• n all communities to contribute to energy generation from renewable
• r low carbon sources. They should:
• ● have a positive strategy to promote energy from renewable and low

carbon sources;

• ● design their policies to maximise renewable and low carbon energy

development while ensuring that adverse impacts are addressed satisfactorily, including cumulative landscape and visual impacts;

• ● consider identifying suitable areas for renewable and low carbon

energy sources, and supporting infrastructure, where this would help secure the development of such sources;

• ● support community-led initiatives for renewable and low carbon

energy, including developments outside such areas being taken forward through neighbourhood planning; and

• ● identify opportunities where development can draw its energy

supply from decentralised, renewable or low carbon energy supply systems and for co-locating potential heat customers and suppliers.

• 98. When determining planning applications, local planning authorities

should:

• ● not require applicants for energy development to demonstrate the
• verall need for renewable or low carbon energy and also recognise

that even small-scale projects provide a valuable contribution to cutting greenhouse gas emissions; and

• ● approve the application if its impacts are (or can be made)

acceptable. Once suitable areas for renewable and low carbon energy have been identified in plans, local planning authorities should also expect subsequent applications for commercial scale projects outside these areas to demonstrate that the proposed location meets the criteria used in identifying suitable areas

• 156. Local planning authorities should set out the strategic priorities

for the area in the Local Plan. This should include strategic policies to deliver:

• ● the provision of infrastructure for transport, telecommunications,

waste management, water supply, wastewater, flood risk and coastal change management, and the provision of minerals and energy (including heat);

• 162. Local planning authorities should work with other authorities and

providers to:

• ● assess the quality and capacity of infrastructure for transport, water

supply, wastewater and its treatment, energy (including heat), telecommunications, utilities, waste, health, social care, education, flood risk and coastal change management, and its ability to meet forecast demands; and

• ● take account of the need for strategic infrastructure including

nationally significant infrastructure within their areas.] The Key element are: have supportive policies for RE whilst ensuring that adverse impacts are addressed satisfactorily, including cumulative landscape and visual impacts; all communities are responsible for contributing to generation; applications are to be approved if the impacts are or can be made acceptable; consider identifying suitable areas. It gives little aid to determination. In a footnote it advises that the approach in EN3 and EN1 be followed. [ftnt 17 “In assessing the likely impacts of potential wind energy development when identifying suitable areas, and in determining planning applications for such development, planning authorities should follow the approach set out in the National Policy Statement for Renewable Energy Infrastructure (read with the relevant sections of the Overarching National Policy Statement for Energy Infrastructure, including that on aviation impacts). Where plans identify areas as suitable for renewable and low-carbon energy development, they should make clear what criteria have determined their selection, including for what size of development the areas are considered suitable.”] Part of the NPS approach is to have regard to the PPS series that the NPPF revokes… It does suggest that Green Belts may not be the right place as many elements of RE will be inappropriate development but says special circumstances may be the benefits arising from increased generation.

[“When located in the Green Belt, elements of many renewable energy projects will comprise inappropriate development. In such cases developers will need to demonstrate very special circumstances if projects are to proceed. Such very special circumstances may include the wider environmental benefits associated with increased production

• f energy from renewable sources.”]

The NPPF revokes the whole PPS series including PPS22 but for some odd reason retains the Companion Guide which offered practical advice on implementing the policies contained within it. It has to be observed that the Companion Guide repeatedly refers back to the revoked PPS series so it is arguable the government actually anticipated that, particularly in regard to landscape and nature conservation, that the old constraints would apply. That does not appear to be the view of developers or Inspectors. Interestingly it replicates much of PPS5 including the almost incomprehensible distinction between “substantial harm or loss” and” less than substantial harm”. Commercial wind turbine development applications currently range in height be- tween 110 and 137m. Their potential for impact on setting of heritage features is patent. Significance (for heritage policy) is defined: The value of a heritage asset to this and future generations because of its heritage interest. That interest may be ar- chaeological, architectural, artistic or historic. Significance derives not only from a heritage asset’s physical presence, but also from its setting. This is proving fruitful area for the fee earner. Days at inquiry are spent seeking to establish which category the harm falls into. More days are spent debating whether the harm is outweighed by the renewable energy benefit. Since the guidance is poor there is no certainty which view will prevail. In 5 recent appeals which post-date PPS5 very different results were obtained. In the first, an Inspector found that the site of wind turbines apparently dancing

• n a Grade 1 gatehouse constituted “less than substantial harm” but dismissed

the appeal. He found the same impact on a range of other Grade 1 assets, including the Vanbrugh designed Kimbolton Castle, which were less affected but seemed reluctant to move to “substantial harm unless it approached a level tantamount to destruction. (Bicton) A similar scale development, after the NPPF was issued, affecting a Grade 1 church, to which the turbines were much closer, was again “less than substantial” and quite acceptable. The Inspector advanced the view that if you could tell a wind turbine from a church then there could be no harm to appreciation of setting. (Chelveston)

In the third appeal the Inspector acknowledged the international importance of the Elizabethan Garden at Lyveden New Bield but again failed to understand the concept of impact on setting being able to amount to substantial harm and thus raising a test of “wholly exceptional”. At a fourth appeal (Airfield Podington) although the Inspector found, in my view quite rightly, that the impact on setting of various cultural heritage assets was less than substantial he failed to note that when considering heritage assets “any harm or loss should require clear and convincing justification”. He simply asserted that the “harm was outweighed”. Not surprisingly Lyveden New Bield and Airfield Podington are off to the High Court. The last appeal concerns a group of 6 turbines in Staffordshire. The Inspector noted harm to landscape character, less than substantial harm to a Registered Park and Garden at 5km and oppressive impact on residential amenity at 2

• houses. Those together outweighed the benefit of the RE. The landscape was not

particularly special, a pleasant rural area, its narrow lanes hedged with frequent specimen oak trees most of which were going stag headed, the Park was a cracker, as were its contained LBs, but was 5km away and the turbines were barely visible over the surrounding tree belt and were quite invisible from the buildings within the Park. The residences were 770 and 840m away – which is getting to the outside edge of most Inspector’s view of oppressive. However the Inspector did not conduct the balancing exercise as many do, ticking off each

• ne against the benefits so that the “benefits” are counted multiple times.

Instead she very properly amalgamated the harms and then weighed them against the benefits and dismissed the appeal. (King Street Brineton) Since the NPPF has been issued a number of wind energy proposals have been to appeal. The NPPF in most cases has made little difference to the outcome, more particularly where the development plan has been up to date. However it has been cited to justify such developments on the basis that they are “inherently sustainable”. Policy is meant to provide a guide to consistent decision making and to give developers and local residents a fair idea of what will or will not be acceptable. The NPPF, by abandoning detailed guidance, fails to do this. I am more likely to be able to tell you what the outcome will be once I know the name of the Inspector. The remaining “old guard” regard landscape, cultural heritage, ecology and residential amenity as important assets which should be

• protected. Their natural instinct is to look to see what is special within the local
• area. If there is nothing the development will proceed. If there is then they will

take the view that sustainability requires its protection. They were reared in a time when countryside was automatically defended for its own sake. A number of heavily green washed Inspectors, mostly those less experienced or at least looking rather young to me, are more likely to blandly find that the harm

is insignificant or if significant is outweighed by the benefits of RE. Often they give no clear reasoning to support their decision and there are an increasing number of challenges being brought as a result. It will be interesting to see the

• utcome of those “trips up the Strand” more particularly given the changes in

the law on policy interpretation.

i http://www.decc.gov.uk/assets/decc/Statistics/publications/ukenergysectorindicators/301‐uk‐energy‐sector‐

indicators‐2010.pdf