Onshore wind farms to be determined by local authorities

In May 2015 Amber Rudd indicated that it was the Government’s intention to remove onshore wind farms with a capacity of more than 50MW from the Nationally Significant Infrastructure Project system, meaning that they would be determined as planning applications by local planning authorities rather than as development consent applications by the Secretary of State. Following consultation in July 2015, the Government rejected a proposal to introduce a grace period for projects which had been subject to significant levels of pre-application preparation work, however there are some transitional provisions as set out below.

Two sets of amendments have been made, the first to the Electricity Act 1989 and the second in draft form in respect of the Planning Act 2008.

The Onshore Wind Generating Stations (Exemption) (England and Wales) Order 2016 comes into force on 01 March 2016 and amends the consenting processes under section 36 of the Electricity Act 1989 by disapplying section 36(1) of that Act (being the requirement for consent for construction, extension or operation of generating stations), to onshore wind generating stations in England and Wales, save for any which are granted under section 36(1) before 01 March 2016. This amendment is necessary to ensure that once the second amendment set out below comes into effect onshore wind generating stations of more than 50MW do not fall to be determined under section 36 of the Electricity Act 1989.

In January this year the Government also published in draft The Infrastructure Planning (Onshore Wind Generating Stations) Order to exclude generation stations which generate electricity from wind from the list of Nationally Significant Infrastructure Projects set out in section 15 of the Planning Act 2008. Such projects will be dealt with as planning applications by local planning authorities rather than as applications for development consent by the Secretary of State.

The draft Order (which is expected to come into force on 01 March 2016) does not affect projects in relation to which the following has occurred before the day on which the draft Order comes into force:

• An application for development consent has been accepted but not decided.
• A decision has been made not to accept an application for development consent. In relation to such an application the provisions of the Planning Act 2008 will continue to apply in the event that the decision is subsequently overturned following a judicial review.
• A Development Consent Order which has been made.
• An application for development consent which has been refused. In relation to such an application the provisions of the Planning Act 2008 will continue to apply in the event that the decision to refuse is subsequently overturned following a judicial review.

Such projects if granted development consent will continue to be subject to the provisions of the Planning Act 2008, as will applications to vary or change such consents or to extend or alter consented projects. 

Comment

Although the combined effect of the above amendments is to pass decision making in relation to all onshore wind farms in England and Wales back to the local planning authority level, and on the face of it a return to localism principles, this may not be the case in the near future in Wales. Through the Planning (Wales) Act 2015 the Welsh Government introduced Developments of National Significance (DNS) in relation to which Welsh Ministers would determine planning applications. On the 26 January 2016 the Welsh Assembly voted to implemented a series of regulations including the Development of National Significance (Specified Criteria and Prescribed Secondary Consents) (Wales) Regulations, which designate energy generating stations with a capacity between 10MW and 50MW as DNSs.

Alongside this the Wales Bill proposes devolving decision making in respect of electricity generating stations in Wales with a capacity of up to 350 MW.

In future this could leave a gap between electricity generating stations in Wales between 10-50MW which could be determined as DNSs while those less than 10MW and between 50 and 350MW would be determined by local planning authorities.