Scotland enjoys acres of rolling hillside and winds to knock the cobwebs out of you. It is therefore a favoured spot for the siting of onshore wind farms. However, the "green" advantages to be gained by this renewable energy source are often countered by other compelling "green" issues such as the protection of the landscape from the visual impact of wind turbines, the largest of which can be around 100 metres tall - the height of almost 25 double decker buses. Such competing environmental considerations were highlighted in the recent Court of Session case of Moray Council v The Scottish Ministers and Renewable Energy Systems Limited.  

The facts of the case

  • Moray Council refused two planning applications by Renewable Energy Systems Limited (RESL) for the erection of a wind farm consisting of 21 wind turbines and the excavation of three small borrow pits (temporary excavations supplying material for use solely for a particular construction project).
  • RESL appealed against the refusals and a Reporter was appointed to decide the appeals.
  • the Reporter concluded that planning permission should be allowed, subject to certain specified conditions.
  • Moray Council sought an order quashing the Reporter's decisions on the grounds that he had failed to take account of certain material considerations, which rendered the proposed development incompatible with the Council's development plan policies.

The Council's argument

Moray Council had produced a Wind Energy Policy Guidance which aimed to promote renewable energy developments whilst safeguarding Moray's high quality environment from inappropriate developments. The Guidance identified a number of "Preferred Search Areas" free from constraints such as low wind speeds and prime agricultural land. Interestingly, RESL's proposed site was on one of these preferred areas.

Nonetheless, the Council argued that the Reporter had misunderstood and wrongly analysed the landscape and visual impacts of the proposals. It was of the opinion that the Reporter had failed to take account of the cumulative impact of this and other proposed wind farms, and the effect on residential amenity.

The Court's decision

The Court refused Moray Council's appeals. It was reluctant to interfere with the role of the Reporter who was entitled to decide whether the consistency of the proposals with the development plan was nonetheless outweighed by other material considerations.

The Court was of the opinion that the Council had erroneously assumed that a major visual intrusion necessarily constituted an unacceptable impact on the landscape. The Reporter had acknowledged that there would be a significant visual effect on the landscape but had decided that this was not "unacceptable". The Court held that the Reporter was entitled to determine this matter - it was a pure question of planning judgement to be answered by the Reporter and he had clearly taken account of the impact on the landscape in coming to his decision.

Similarly, the issue of cumulative impact was one on which the Reporter had to make a finding of fact as a subjective matter informed by his own expertise and the court did not wish to disturb the Reporter's conclusions.

As regards the Council's assertions that the Reporter had failed to quantify the residential impact, the Court reminded the Council that the relevant policy here was not residential - it was an implementation policy governing development control in rural areas. The Court decided that the Reporter was entitled to take account of the fact that most of the residential objectors lived over three kilometres away from the proposed wind farm. He had validly concluded that their objections did not outweigh the development plan policy nor national planning guidance.

Renewable energy - the statistics

In 2003, over 50% of the electricity generated in Scotland was produced by fossil fuel combustion. Under the 1997 Kyoto Protocol, the UK is committed to reducing emissions of greenhouse gases. Around 8% of the electricity generated in Scotland in 2003 came from renewable sources. As part of the Climate Change Programme, the Scottish Executive has set a target that, by 2010, 18% of electricity generated in Scotland should be from renewable sources, rising to 40% by 2020. 

Scottish Natural Heritage envisages problems for the future as the supply of the most suitable wind farm sites diminishes in a crowded marketplace. They see the job of keeping wind energy development in harmony with Scotland's natural heritage getting tougher over the next few years. It would not, therefore, be surprising if more wind farm related cases are brought before the Scottish Courts in years to come.

The full text of the case can be found on the Scottish Courts' website at http://www.scotcourts.gov.uk/opinions/2006CSIH41.html

Further statistical data can be found in the Key Scottish Environment Statistics 2005, published by the Scottish Executive at http://www.scotland.gov.uk/Publications/2005/08/15135632/56356#3

Scottish Natural Heritage's recent press release on wind farm development can be found on their website at http://www.snh.org.uk/press/detail.asp?id=1501

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