A Scottish local authority and a community council have called for applications for two wind farms to be rejected on the grounds that they fall foul of a recent legal ruling.
Scottish Borders Council claims that an application for the Rowantree wind farm near Oxton in the Scottish Borders is “incompetent” because the developer does not yet have an Ofgem licence to distribute energy from the project. Meanwhile, Dalmellington Community Council in Ayrshire has made the same claim over plans for a wind farm near the town at Burnhead.
Both projects are over 50MW in size so are decided by the Scottish Government under section 36 of the 1989 Electricity Act with the local authorities as consultee.
The calls follow a ruling from Lady Clark of Calton in the Court of Session in relation to a judicial review of the 370MW Viking Energy wind farm brought by campaign group Sustainable Shetland.
Lady Clark said that planning applications under section 36 were not competent unless developers already have a distribution licence.
However, in practice, few energy project developers have licences before they apply for planning permission, according to lawyers and renewable energy promoters interviewed by Planning. It costs £1,400 to apply for a licence, but they are not time-limited, according to a spokeswoman from Ofgem (see panel).
A spokeswoman for the Scottish Government confirmed that it has now lodged an appeal against the judgement and is clarifying the licence status of section 36 applications that it currently holds.
A spokesman for RWE Npower Renewables said it was considering the implications of Lady Clark’s decision and will await the outcome of the Scottish Government’s appeal before deciding on any further action.
Local authority planning and legal teams spoken to by Planning were studying the ruling to decipher the impact on any projects in their area.
A spokeswoman for Highland Council said: “Our planning service and legal team are currently studying the details of this ruling. It is therefore too early to say whether it will have an impact on wind farms in our area.”
The ruling could have a significant impact on other outstanding section 36 applications for energy generation projects, lawyers believe. If the ruling is upheld, the main impact will be felt in Scotland, explained Marcus Trinick, partner at law firm Eversheds.
Since the Planning Act 2008, energy projects over 50MW are decided through development consent orders in England and Wales. However, the ruling could affect five wind farm applications in mid Wales currently going through a conjoined public inquiry under the 1989 Act.
Lawyers believe the judgement could also have an impact on projects of more than 10MW, as Lady Clark ruled that schedule 9 of the Electricity Act 1989 also applies to these projects. The Scottish government’s directorate for planning and environmental appeals is disputing this, according to a letter seen by Planning.
Eversheds is expecting to be instructed by up to eight wind farm developers to join the government’s appeal, according to Trinick.
The ruling could also impact on projects that have already been consented under section 36, though Trinick did not think this was likely in practice.
Paul Minto, energy partner at law firm Gateley, said that the Electricity Act 1989 needed to be updated to reflect the modern energy industry. When the act was introduced, there were only six energy companies and they only generated energy from fossil fuels and nuclear.
“With the advent of renewable energy an entire new industry has evolved, with smaller companies emerging. The larger wind, wave, tidal and hydro projects will be caught by this decision,” he said.
The wider impact of Lady Clark’s decision on the Viking Energy wind farm
Q: Why don’t developers want to apply for a distribution licence prior to seeking planning permission, given that they only cost £1,400 and are not time-limited?
A: Lawyers and the wind industry have been taken by surprise by the ruling. They have never considered the need for a licence prior to applying for planning permission, according to Marcus Trinick, partner at Eversheds. A spokesman for RWE Npower explained that developers know that it may take years to get planning permission for a wind farm so they are unwilling to pay the fee for obtaining one, plus the administrative costs associated with holding one, until they know the proposal can go ahead.
Q: How vulnerable to challenge are energy schemes that were given planning permission without a distribution licence?
A: Very. Several anti-wind farm campaign groups are already seriously considering challenges, according to a spokeswoman for Scotland Against Spin. Since March, individuals or environmental pressure groups bringing an environmental case against a public body can apply for a protective expenses order. The order would limit their liability for the other side’s costs to just £5,000. This limit on the expense of losing a challenge makes it more likely that campaigners will lodge cases, the spokeswoman said.
Q: If Lady Clark’s decision is upheld, what are the implications for energy scheme developers and planners?
A: All energy schemes that have been approved by the Scottish Government without first having a licence from Ofgem could be challenged. The government currently has 39 outstanding wind farm applications. Eight of these have a licence, while one is exempt. The Scottish Government is working with Ofgem to establish the licence status of the other applications, a spokeswoman said. The government is also considering applications for two hydro projects, two biomass projects, two tidal and nine offshore wind farms.
1 Comment