Colleen Theron and Deirdre Lyons examine a High Court decision with regards the siting of a wind turbine on a bird flight path
In August 2011, the High Court dismissed a challenge to a planning permission – granted on appeal – for the erection of two wind turbines on a site 5km from the Morecambe Bay Special Protection Area (SPA).
The challenge was brought by Mr Hargreaves in relation to the successful appeal by Cornwall Light and Power (CLP).
The main points of the challenge alleged that: (i) the secretary of state had erroneously concluded that the development did not require an environmental impact assessment (EIA); (ii) the inspector should have referred that issue back to the secretary of state before determining the appeal; and (iii) the development required appropriate assessment under the Habitats Directive and Regulations, because of the effect of the scheme upon the SPA. The challenge was rejected on all grounds.
The SPA hosts a number of bird species, including geese. The geese commute inland up to 10km from their coastal roosting sites to feed, with many feeding in fields adjacent to the proposed development site. It was estimated that up to 50 geese a year would collide with the wind turbines if the development were to proceed.
There were also other concerns, including noise and shadow flicker, and landscape and visual impacts. In both 2008 and 2009, planning applications were refused because of the potential impact on the geese and the adverse visual impact.
Concerns were raised by Lancashire County Council, in its capacity of advising the local planning authority, and Natural England because of the potential effect on the geese.
In 2010, CLP appealed to the secretary of state, submitting its “Goose Mitigation Agreement” (GMA). A planning inspector was appointed to conduct the appeal. The CLP scheme suggested maximising goose feeding areas.
Natural England said that the scheme was acceptable subject to it being tied to a legal agreement. CLP requested a screening direction under reg. 9(1) of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 – before submitting a planning application, potential applicants can apply for an opinion on whether a development should be subject to an EIA.
The inspector returned a negative screening direction, concluding that the likely impacts were not sufficiently significant to warrant an environmental survey. Debate centred on the exact interpretation to be accorded to “significant impact”.
The secretary of state subsequently ruled that it was not an EIA development, allowing CLP’s appeal, and, subject to various conditions, granting planning permission.
Hargreaves challenged the decision, alleging that the inspector had acted unlawfully or irrationally in failing to remit the negative screening direction for reconsideration or in granting planning permission.
Conservationists will not welcome the result of this case, but the GMA signals a greater emphasis towards the careful siting of such facilities in order to account for bird flight paths.
