A changing landscape?

After all the media coverage, Richard Wald analyses the real impact of the Sea & Land Power wind farm case.

At the end of May Mrs Justice Lang handed down judgment on the lawfulness of the decision of a local planning authority to refuse a renewable energy company permission for a wind farm on the Norfolk broads.

The case, Sea & Land Power & Energy Ltd v (1) SSCLG (2) Great Yarmouth Borough Council [2012] EWHC 1419 excited very considerable media coverage, producing numerous pieces in national and local news, many of them describing the judgment as a “landmark ruling” … “a victory for the landscape preservation over renewable energy targets” and provoking the Campaign to Protect Rural England to comment “The High Court has quashed the idea that national targets have precedence over local concerns”. On the other hand the representative body for UK wind, wave and tidal energy industries, Renewable UK, reacted to the judgment by stating, rather philosophically: “We’re not unduly worried as we’ve always said every application for development needs to be considered on a case-by-case basis – some we win, some we lose.”

Now that the media storm has subsided it is worth looking beyond the news and into the judgment to see, no matter the effect of the case on the Norfolk broads, what if any impact it has on the landscape of renewable energy scheme proposals.

The appeal was pursued on three principle grounds. First, that the Inspector had, in the throes of the confusion about the Coalition government’s unsuccessful attempt at revoking regional spatial strategies, failed to have regard to the East of England Plan and the renewable targets contained therein, or failed to provide proper reasons. Second, that the Inspector had misapplied relevant landscape policy. And finally, that in the face of a conflict between local and national policy, she had failed to give primacy to national policy support for renewable schemes as required by paragraph 11 of the Supplement to PPS1.

Mrs Justice Lang dismissed the first two grounds by adopting the generous approach afforded to Inspectors when exercising their planning judgment and when scrutinising the reasoning in their decision letters (see Newsmith v SSETR [2001] EWHC Admin 74 at [6], South Bucks DC v Porter(No 2) [2004] 1 WLR 1953 and Clarke Homes v SSE (1993) 66 P&CR 263 at 28). As for the third ground, Mrs Justice Lang rejected the argument that in the event of a policy conflict national renewable policy takes precedence over local plan policy finding instead that it forms but one of a number of policy considerations to be weighed in the balance. In sum, all of the Claimant’s arguments were dismissed on traditional and rather case-specific grounds.

Then why all the brouhaha? Could it be that the media reaction to this case had more to do with ongoing popular and political debate about the wisdom of peppering our countryside with wind turbines than any new direction in the law relating to the protection of landscape character?

At the beginning of the year 101 Tory MPs, led by Chris Heaton-Harris MP, signed a letter to the Prime Minister urging a review of policy relating to the consenting of on-shore wind farms. Amongst other things the letter gave voice to widespread fears that effective opposition to wind farm proposals would be made all but impossible under the new National Planning Policy Framework, in force since the end of March and generally considered a pro-developer compendium of planning policies. And during the week between hearing and judgment in the Sea & Land Power & Energy case, a widely publicised cabinet row erupted over a plan by the Chancellor, George Osborne, to cut the subsidy for onshore wind farms by up to 25%.

Whilst the Sea & Land Power judgment may leave the legal landscape behind renewable energy development unchanged, the nature and extent of the media response to it seems to suggest that the political tectonic plates are on the move.

Richard Wald is a barrister at 39 Essex Street. He appeared in Sea & Land Power.