April 15, 2013
England

Judge gives energy firms the right to build wind farms 350 metres from homes

Energy firms will be allowed to build giant wind turbines just 350 metres from residential areas after a crucial ruling by a High Court judge.

The judge decided that a council’s attempt to impose a minimum distance of 1.2km (three quarters of a mile) between wind farms and people’s homes was unlawful, in a test case that could have far-reaching consequences for national planning laws.

Milton Keynes Borough Council in Buckinghamshire tried to prevent the wind energy firm RWE Npower Renewables Ltd from erecting 125 metre high turbines less than 1,217 metres from homes after it put in planning applications for two wind farms in the borough.

The firm took the council to court, arguing that the “emerging policy” of imposing a sliding scale of minimum distances, based on the height of turbines, contradicted its existing local development plan, which recommends a minimum distance of 350m.

The company argued that the new policy would “sterilise” the borough for wind farms because so few sites would comply with it, and feared that the policy would set a national precedent.

Judge John Howells QC agreed with RWE today in a High Court judgement which is likely to be used as a trump card by energy firms whenever councils object to wind farms being built too close to homes.

Acknowledging that “wind turbines generate passionate argument as well as energy”, the judge said there was “no objective justification” for the proximity restrictions, regardless of actual noise or visual impact.

Judge Howells emphasised that it was not his task to consider the benefits, or otherwise, of wind turbines but went on to uphold RWE’s judicial review challenge to the changes the council had sought to introduce via a “supplementary planning document”.

He ruled that the council’s stance was “plainly in conflict” with established local policy and gave rise to a situation where the same proposal would be granted planning consent under the adopted development plan for the area but refused it under the emerging policy.

Other arguments put forward by RWE – including that the council’s stance conflicted with national renewable energy policies – were dismissed by the judge, but Milton Keynes will now nevertheless be forced to make crucial amendments to its policy.

The policy sought to give residents a potentially crucial say in wind farm proposals close to their homes and also laid down minimum distances between turbines and bridleways, public footpaths and high pressure fuel lines.

RWE had earlier argued that the council’s policy shift had effectively left only tiny portions of the Milton Keynes area available for wind farm developments that are needed to meet national and regional renewable energy targets. It expressed concern that, if approved by the court, the emerging policy would be adopted by other local authorities across the country.

The company has two turbine projects in the council’s area in the pipeline – at Nun Wood and Orchard Way – but the council has opposed both on residential amenity grounds.

RWE argued that the emerging policy directly contradicted the local development plan which is “permissive” of wind farms, in line with government policy.

The emerging policy laid down a minimum distance of 1,217metres between a typical 125-metre-high wind turbine and the nearest home, whereas the local development plan recommends a minimum gap of only 350 metres and advises that permission will be granted unless it would cause significant harm to residential areas, wildlife or the landscape.

RWE argued that the emerging policy set rigid minimum distances, calculated according to turbine height, regardless of whether the operation of turbines would in fact cause unacceptable noise or visual impacts on local residents.