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Wind Turbines ‘Proximity’ Policy Declared Unlawful

An emerging planning policy by which a local authority sought to impose a sliding scale of minimum distances between wind turbines and residential properties as a material consideration in planning decisions has been struck down as unlawful. The High Court ruled that the emerging policy was ‘plainly in conflict’ with the provisions of the adopted local development plan for the Milton Keynes area.

wind turbineRWE Npower Renewables Limited mounted a judicial review challenge after Milton Keynes Borough Council announced the emerging policy which sought to lay down restrictions on the proximity of wind turbines to homes, as well as bridleways, public footpaths and high pressure fuel lines, with distances calculated in accordance with the height of the proposed turbines. The policy also gave residents a potentially crucial say in planning decisions relating to turbine proposals close to their homes.

RWE was concerned that the restrictions would ‘sterilise’ the borough so far as wind farm developments were concerned and that they might be adopted by other local authorities, leading to the widespread rejection of wind farm proposals. The company, which had two extant proposals for wind farms in the area, submitted that there was no objective justification for applying blanket proximity restrictions in the absence of evidence that particular developments would cause visual or noise impact.

Judge John Howell QC emphasised that it was not his task to consider the benefits, or otherwise, of wind turbine developments. However, in overturning the emerging policy, he said that ‘no reasonable person’ could conclude that the minimum separation distances specified in the emerging policy were not in conflict with the adopted development plan.

The emerging policy laid down a minimum distance of 1,217metres between a typical 125-metre-high turbine and the nearest home, whereas the local development plan recommended a minimum gap of only 350 metres and advised that permission would generally be granted in such circumstances, unless proposals would cause significant harm to residential areas, wildlife or the landscape.

The judge noted that, due to the conflict between the emerging policy and the established development plan, a situation had arisen where the same proposal would be granted planning permission under the latter but refused consent under the former. The court’s decision means that the council will be required to make substantial amendments to its emerging policy.