Planning for renewable energy projects

Peter Purvis explains the role of clear planning policy in meeting the province’s renewable targets.

Despite the wider problems currently faced by the development industry in Northern Ireland, the renewables sector is growing steadily and is unrecognisable compared to 10 or even five years ago. Ambitious government targets and generous subsidies have certainly helped to focus minds.

That said, given that the vast majority of current energy consumption in Northern Ireland still comes from fossil fuels, there remains some considerable way to go. Does the political will exist in Northern Ireland to promote further growth in the renewables industry? More pertinently, what reforms are needed in the planning system in order to facilitate such continued growth and expansion?

Political support at Stormont

There has been much speculation in the national press that the political tide may be turning against renewable energy at Westminster, with onshore wind in particular suffering a decrease in support following DECC’s recent ROC banding review.

However, the message from Stormont appears to be somewhat different. Northern Ireland’s Enterprise Minister Arlene Foster has set a very ambitious target of 40 per cent of electricity consumption from renewable energy sources by 2020. The Environment Minister, Alex Attwood, is keen to ensure that planning policy and decision-making is fit for purpose and geared to support the renewables sector. Attwood often cites the model adopted by the Scottish Government as a template which Northern Ireland should strive to emulate. Northern Ireland currently has 21 planning policy statements and several more in draft form whilst Scotland, and more recently England, have managed to bring the entirety of their planning policies together in one document. If Northern Ireland eventually decides to follow suit, there are certain policies in particular on which renewable energy developers would welcome clarification.

PPS18 – Active Peatland

Developers in Northern Ireland’s renewable energy sector have long grappled with the ambiguities in Planning Policy Statement 18. In addition to issues of visual amenity, another issue that causes considerable headache is the provision in PPS18 that “any development on active peatland will not be permitted unless there are imperative reasons of overriding public interest”.

An NIEA Advice Note dated 13 January 2012 sits behind this planning policy and provides further guidance on what constitutes active as opposed to inactive peatland, appropriate survey methodology and the position in respect of temporarily inactive peatland. The Advice Note may soon be updated and although stated to be merely an internal reference document to guide developers and NIEA staff, the importance now being placed on this Advice Note has resulted in considerable speculation as to its status.

It is certainly not held out by DoE as planning policy or supplementary planning guidance but could it constitute a material planning consideration? The answer is probably yes, given its relevance to land use planning. However, the absence of official consultation in the preparation of the NIEA Advice Note suggests that the weight given to it as a material consideration must surely be low when considered against the various other factors that make up the overall planning balance.

The correct weight given to the expression of opinion in the Advice Note may ultimately depend on how evidentially justified its contents can be demonstrated to be when examined under the microscope of a public inquiry or judicial review.

Comment

Clarification on the status of the NIEA Advice Note is long overdue but the confusion could be resolved by having it officially adopted as Supplementary Planning Guidance. The issue will perhaps not finally be put to bed until tested in a judicial review. In the meantime, there is a risk that planners giving the Advice Note unjustified weight might lead to a successful challenge in the courts on grounds of unreasonableness.

Peter Purvis specialises in planning and environmental law with a particular focus on renewable energy projects.

For more information contact:

Peter Purvis, Pinsent Masons LLP
Tel: +44(0) 28 9089 4899
peter.purvis@pinsentmasons.com