William Norris QC succeeds in application for consent for 170 MW capacity wind farm in Scotland

On 30th June 2017 the Scottish Ministers notified Vattenfall Wind Power that it had succeeded in its application for consent under s. 36 of the Electricity Act 1986 (and deemed planning permission) in respect of a 50 turbine development (170 MW capacity) in SW Scotland, near Dalmellington and New Cumnock. The proposed development affected two local Planning Authorities, East Ayrshire (which opposed the scheme) and Dumfries and Galloway (which, subject to Conditions, did not).

The PLI took place in December 2015. The proposed development was for an area with an interesting industrial and rural history. It had once been a centre of mining (and still bore the physical scars of that industry) and had enjoyed considerable industrial prosperity but was now seeking to re-establish itself as an area for tourism. As is so often the case, some local people and interests were supportive of the scheme and others were strongly opposed to it. Nevertheless, it was to the credit of all participants (and the Reporters, David Buylia and Robert Seaton) that the debate at the Inquiry, though fierce at times, was constructive and conducted with courtesy and co-operation on all sides.

The issues were typical of such inquiries involving (amongst other things) planning policy, landscape and visual impact, aviation including MOD and Search and Rescue (dealt with by conditions), tourism and so forth. An unusual objection came from the Scottish Dark Sky Observatory (SDSO), sited within the Craigengillan Estate (also an objector to the scheme), which expressed a concern that the presence of the turbines might discourage visitors and that the lighting associated with construction and any turbine lighting thereafter might reduce the appeal and impede the practical operation of the SDSO.

All adverse effects were held to be too limited to be significant and/or not so serious as to outweigh the benefits of the scheme in terms of sustainable development and renewable energy policy. To that extent, there are few general lessons that can be learnt from the case except that, to succeed in such an application, you need a good project in the right place and must be scrupulous in consulting thoroughly and in paying proper attention to all opponents whatever you may feel about the merits, substance or manner of their objection. It must always be borne in mind that such projects inevitably provoke strong feelings and those should always be respected.

What may be of wider interest is to see how Scottish Ministers dealt with the Applicant's proposed scheme for community ownership about which some evidence was provided before, during and after the Inquiry.

The Applicant had proposed payment of community benefits of £5,000 per MW to a community partnership and a community shared ownership scheme. That payments into a community fund ('community benefits') do not constitute a material planning consideration was not an issue. The only question of interest is whether a community ownership scheme, in respect of which there is existing guidance from Scottish Ministers, should be treated any differently.

This legal issue has not yet been resolved definitively. The distinction between something which is relevant and important and constitutes a 'material consideration' in law and something equally relevant and important but does not may strike many (particularly non-planners) as somewhat esoteric. Here, however, I shall do little more than record the contrasting approaches of the Reporters and that of the Scottish Ministers, adding the comment that, regardless of whether the question of community benefits/ownership are to be regarded as a material consideration as a matter of law (albeit with arguments as to the weight to be given thereto) they are surely material in practice to local communities, particularly those in relatively deprived areas such as were the focus of this case. Indeed, it is readily understandable that a community might value payments or a source of income which enabled them (say) to keep a village hall open which would otherwise have to close or might fall into disrepair, regarding the temporary (25 years) effect of the scheme on the local landscape as a price worth paying.

The following paragraphs of the Report summarise how the case was put and how the Reporters addressed the issue:-

4.77 Turning finally to the issue of community shared-ownership, the applicant's initial proposals were set out in its hearing statement68. This committed it to working with the community to implement an offer of shared ownership in the South Kyle project. The applicant suggests that one source of funding for this could be the community development money that it has agreed to pay. The applicant states that the revenue generated by community ownership of part of the development would deliver an on-going revenue stream for the community to spend on local projects for the life of the wind farm and beyond.

4.78 After the inquiry closed we permitted the applicant to submit further information on how the shared ownership offer could work69. This confirmed that the applicant's preferred model for the shared-ownership scheme would be that described in the Scottish Government Good Practice Principles for Shared Ownership of Onshore Renewable Energy Developments (the good practice principles) as the "shared revenue model". It regards this as both commercially viable and also likely to maximise the potential for community participation. The applicant considers that it would be appropriate to offer the community the ability to acquire up to 5% of the project. The applicant did stress that if the community preferred a different approach, it would consider that.

4.79 In response to these additional thoughts on the matter, the SDSO and Craigengillan Estate responded that there remained no certainty that the applicant's stated commitment to community shared-ownership would actually deliver any significant benefit. Concern was also expressed that the applicant had not consulted widely within the community over its intentions. The council's view is that, as with the proposed community benefit payment, an offer of community ownership should not be treated as a material consideration. 

4.80 We conclude that, in accordance with section 5 of the good practice principles, the applicant's offer to allow the community to obtain a share of the proposed development is a matter to which we must have regard. A distinction is made in that document between community shared-ownership proposals and offers simply to pay a sum of money to the community. The good practice principles document confirms that shared ownership should become the norm in renewable energy projects in the future and NPF3 states that local and community ownership and small-scale generation can have a lasting impact on rural Scotland, building business and community resilience and providing alternative sources of income. 

4.81 We agree that, at this stage there is no certainty that the community shared ownership offer will be delivered and that discussions with potential partners are at an early stage. Therefore, in accordance with the good practice principles, we have given less weight to the applicant's intention to commit to a shared-ownership arrangement than if it had identified a specific partner.

Scottish Ministers, however, took a different view. Again, I shall simply quote the relevant section of the decision letter.

Scottish Ministers have considered the information provided by the Company regarding their aspirations to provide a community shared ownership offer and find it is not sufficient to determine the net benefit that this might bring to the economic position of the area. Scottish Ministers therefore disagree with the Reporters' view that the Company's offer to allow the community to obtain a share of the development is a matter to which they and Scottish Ministers should have regard. Scottish Ministers do not accept the Reporters' conclusion at paragraph 4.80 and have not taken this into account in their determination of this application.

William Norris QC, instructed by Peter Nesbit and assisted by Kirsty Morris of Eversheds, appeared for the Applicant at the Public Inquiry