Over the last year, climate change has risen up the public and media agenda to the point where it seems to come into virtually every discussion. Renewable energy is clearly one of the major weapons we have to limit climate change and so you would have thought the RSPB would be its most fervent supporter.
However, December saw the RSPB attack the latest Lewis windfarm proposal, even though the number of turbines has been cut from 234 to 181 to lessen the impact on wildlife, including protected species such as golden eagles, red-throated divers and merlin.
The European Commission has now stepped into the fray, apparently believing that the latest proposals may breach the Habitats Directive because developers failed to assess whether other less sensitive sites across Scotland could have been used. And yet the developers limited their search to the Outer Hebrides as they considered social and economic development in this area to be an important objective. (It also chimed politically at the time).
So what’s going on, and what role do the RSPB and suchlike NGOs play in the windfarm planning consent process?
Plans for electricity generation infrastructure of over 50MW (1MW for hydro schemes) require ministerial consent and, where the local planning authority (LPA) objects, the relevant minister in England or Scotland should normally hold a public inquiry. Below 50MW, the LPA decides on a planning application, although the developer can, and often does, appeal a refusal. Objectors have no right of appeal against a grant of permission but can lobby the minister to call in the application for determination where national considerations apply – he then appoints an inspector to hold a public inquiry and make a recommendation.
Decisions must be taken in accordance with relevant development plans unless material considerations indicate otherwise. All development plans these days contain conservation policies, and where development is likely to affect a site of special scientific interest (SSSI) there are statutory consultees such as English Nature or Scottish Natural Heritage (SNH). In addition, above two turbines over 15m in height, the LPA must consider if an environmental impact assessment is appropriate, and this is more likely to be the case if the development is over five turbines or 5MW.
LPAs must also take account of guidance from central government, such as PPG 22 on renewable energy (currently under review) and PPG9 from 1994 which confirmed that the presence of a protected species which could be harmed by development is a material consideration in planning decisions. This guidance requires LPAs to distinguish between international, national and local designations in planning decisions. (Scottish equivalents are NPPG 6 and NPPG 14). However, the assumption remains in favour of development – the LPA must demonstrate harm before consent can be refused.
Openness and accountability require that public consultation and conservation organisations have the same right as anyone else to ask to be heard on a planning decision or at a public inquiry, but this process has undoubtedly resulted in significant and expensive delays in granting permission.
In addition, planning officials with limited ecological and conservation expertise are inevitably likely to be influenced if the RSPB or similar NGOs weigh in on the side of the objectors.
For instance, Aberdeenshire, which has one of the most advanced policies on assessing windfarms, states in that policy, “when determining the magnitude of ecological effects, such as bird displacement, bird flight lines/paths, habitat loss or hydrological impacts, applicants should discuss with SNH ???, RSPB and with the council’s environment team, the total area that could (be) affected”.
Increasingly, environmental organisations have also used the threat of judicial review if planning authorities fail to take account of their obligations under a raft of environmental legislation, much of it of EU origin. But as the Lewis case indicates, the NGOs may not need to take action themselves – if they can get the commission interested, it can take action on its own initiative against any government department which is failing to comply with EU rules.
The RSPB argues that it supports the use of wind power in general as long as projects are sited, designed and managed so they do not significantly harm birds or their habitats. Concerns on this score have led the RSPB to object to 76 windfarm proposals (on and offshore) between 2000 and 2004 and to raise concerns about a further 129. (It does not indicate how often it has decided to raise no concerns).
In raising objections, the RSPB would argue that it is simply exercising its legal rights and representing its one million members to ensure that planning decisions are made with due consideration for the environmental impacts – the Lewis peat bogs, for example, are designated as of European importance under the Conservation of Wild Birds Directive and have the highest populations of dunlin and golden plover in Europe.
Windfarm developers would argue that the biggest threat to bird populations remains global warming and that perhaps the RSPB has its priorities wrong.
Where the balance falls between these two views is something on which we may never be able to come to a firm conclusion. The RSPB has, however, recently given its backing to the 341-turbine London Array off the coast between Margate and Clacton after plans were altered to protect the red-throated diver.
So compromises can be reached in some cases.
Penelope Warne is a member of the oil &gas team at international law firm CMS Cameron McKenna
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