Protecting a developer from unreasonable requirements

29th April 2015

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Neil Johnson

Michael Philips, principal consultant at Dulas, explores the consequences of confusion over whether part of a project needed to undergo EIA.

The Reeves Hill wind farm scheme, east of Knighton near the Shropshire Hills, received consent in 2012 after four years in the planning system and a series of challenges and high court actions. But that was just the start of the difficulties.

The wind farm was deemed EIA development under the criteria in schedules two and three of the 1999 regulations. But while the wind turbines and associated infrastructure were initially deemed acceptable following scrutiny of the environmental statement and supplementary environmental information (SEI), the access arrangements to the site were not. As such an alternative access arrangement was sought, which was then subject to a separate planning application to a neighbouring planning authority.

The neighbouring authority was asked to screen the access track to decide if it was EIA development. It decided that it was not, and a planning application comprising an environmental report was prepared and submitted. However, this stalled in the planning process owing to a regulation 19 request for more information on the wind farm. Although the wind farm had been approved by committee, a decision notice had not yet been issued.

Once the regulation 19 was suitably addressed through a further SEI submission, and a decision notice for approval of the wind farm had been issued, the access track application was reactivated. However, a barrister auditing the planning documentation on behalf of the applicant deemed that the original screening opinion was at risk of challenge. The applicant submitted a further screening request to the local authority. Given the history of the projects, it was highly likely that the opponents of the scheme would pick up the unlawful nature of the original screening opinion, risking another legal review.

The local authority this time deferred the screening decision to Welsh ministers, who determined that that access track was EIA development due to its close interdependency with the wind farm.

The direction relied solely on the opinion of a statutory undertaker in respect of a heritage feature, who had not investigated the potential claims of effects to a historic feature independently and had not visited the development sites.

Considerable debate ensued as to whether the access track should be deemed EIA development solely on the basis of its association with the wind farm. In the applicant’s opinion, there would be no cumulative effects from the two elements of the development on the historic feature in question and it requested that the decision was reversed. However, according to the ministers, European commission guidelines advised that because the track was solely to provide access to the wind farm, the two developments needed to be considered under the EIA regulations together.

The ministers added that the principal question was whether there was sufficient information available to enable the local authority to make an assessment of the likely environmental effects of the project. They concluded that was that there was not and that therefore EIA was required.

Predicted view of Reeves Hill

All this could have been avoided if the local authority or the Welsh ministers had requested further information, and visited the site to determine the relationship between the two developments and their potential environmental impacts. Cumulative modelling of the zones of theoretical visibility for both developments, along with a site visit would have established no potential for cumulative effects, leading to a decision removing the need for an EIA on the access track.

At the time of writing, the access track application has still not been determined, while the period of the planning permission for the wind farm nears its expiration date.


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