Martin Edwards looks at the emerging renewables market and how well current legislation supports it
I
t is ironic that, while there is almost universal acknowledgment that, in general, renewable energy is a good thing, when it comes to specific projects, they tend to generate heated debate, both positive and negative. Recent planning case law amply demonstrates this dichotomy. For example, in one recent case in Wiltshire, a planning permission for a solar farm was quashed by the High Court, with the developer left to bear substantial costs in dismantling the part-completed farm: see Gerber v Wiltshire County Council [2015] EWHC 524 (Admin); [2015] PLSCS 78.
One reason is that making renewable energy generation cost-effective requires projects of such a scale that, inevitably, they give rise to substantial local opposition and sometimes set environmentalist against environmentalist. Whatever the rights and wrongs of any particular project, there are very few, if any, renewable energy options that come with no environmental cost.
However, in common with global initiatives to tackle the threat from climate change, the planning system in England and Wales has been subtly changed to facilitate the growth in renewable energy generation. The National Planning Policy Framework (“NPPF”) includes a whole section – section 10 – on “Meeting the challenge of climate change and coastal change”. Paragraph 93 of the NPPF states: “Planning plays a key role in helping shape places to secure radical reductions in greenhouse gas emissions, minimising vulnerability and providing resilience to the impacts of climate change, and supporting the delivery of renewable and low-carbon energy and associated infrastructure.” Pretty powerful stuff, but for the developer of renewable energy, it is not a case of pushing at the proverbial open door. Many obstacles may lie in the way.
Political climate
When it comes to solar PV (photovoltaic) renewable energy, local government has two important roles to play. First, it plays the central role in regulating such developments through the planning system. Second, in this age of austerity, the local government sector itself can be substantial generators of renewable energy, particularly solar. Writing in The Guardian on 26 September 2014, Marie Reynolds from Friends of the Earth observed that by investing in solar power on their large estates, schools can save money: 50kW solar panels make about £8,000 a year through payments from energy suppliers, exporting power to the grid and savings on in-house electricity bills. Multiply this by the 30,000 schools across the UK and the total income is in the region of £240m, which equates to the salaries of more than 6,000 teachers each year, simply from having panels sitting there on schools quietly generating energy and income.
The logic of this argument was not lost on the coalition government. On 4 November 2014, Amber Rudd, then parliamentary under secretary of state at the Department of Energy and Climate Change, wrote to all local authorities about the benefits to be had from solar energy. Her letter noted that the annual cost of providing electricity to the nation’s schools was £500m, “representing a significant proportion of the education budget”.
Her letter went on to state that every school has the potential to generate its own renewable energy and identified benefits including reduced electricity bills, revenue generation (solar PV will generate a steady income stream for schools over a 20-year period – most schools can accommodate a 25kWp solar PV system, which could generate an annual income of £3,435), reducing carbon dioxide emissions and educating pupils on the benefits of sustainability by providing them with a working example of renewable technology in their own school.
But it is not just schools and local authorities that can benefit. If the income-generating potential of solar PV energy is seen by government as a clear benefit, then the same must be true for the private sector, especially as the costs of installation have dropped significantly recently.
The solar farm
Much of the current controversy surrounding solar PVs is associated with the growth in solar farms, particularly in the southern half of the country due to the relatively high solar radiation levels. Large-scale solar farms began to be developed in 2010, partly because of the feed-in tariffs that were then available, the Renewables Obligation scheme and EU Common Agricultural Policy funding.
Solar farms (sometimes called solar parks) are large-scale solar PV installations and they often cover large areas of land, sometimes more than 100 acres (bearing in mind that a typical football pitch is roughly 1.5 acres), containing around 90,000 solar panels generating upwards of 24MW. Each panel measures 1.65m by 0.99m and is 400mm thick. Over a year, it can generate enough electricity to supply 6,300 homes (based on the DECC figure of 4,192kWh used) and with an expected 30-year lifetime.
The solar panels are attached to static frames and arranged in rows (or “arrays”). The tops of the panels are typically 2.5-3m above ground level and the rows set about 3-5m apart, facing south. The angle of the panels is 20-30 degrees. The panels are blue/black in appearance and are designed to absorb, not reflect, sunlight. Nevertheless, they can be hard to miss.
One of the reasons for the controversy surrounding solar farms is that they bring drawbacks as well as benefits. The balance that has to be struck between the benefits and disadvantages of a particular solar PV farm proposal lies at the heart of the planning system. Planning policy is beginning to emerge to better enable local authorities to determine these applications and to provide both industry and the public with a clearer picture.
Legislative provision
Any proposal must be determined in accordance with section 38(6) of the Planning and Compulsory Purchase Act 2004, so it must be made in accordance with the provisions of the development plan unless material considerations indicate otherwise. The NPPF does not – indeed, cannot – change this but it is, of course, dependent on the local planning authority having an adopted development plan that contains relevant policies. If the plan is out of date, then the NPPF becomes a, if not the, major material consideration.
Paragraph 14 states that at the heart of the NPPF is a presumption in favour of sustainable development, which should be seen as a golden thread running through both plan-making and decision-taking. Chapter 10 of the NPPF also contains more specific advice. Paragraph 98 provides that local planning authorities should not require applicants for energy development to demonstrate the overall need for renewable or low-carbon energy and should recognise that even small-scale projects provide a valuable contribution to cutting greenhouse gas emissions; they should approve the application if its impacts are (or can be made) acceptable. Once suitable areas for renewable and low-carbon energy have been identified in plans, local planning authorities should also expect subsequent applications for commercial-scale projects outside these areas to demonstrate that the proposed location meets the criteria used in identifying suitable areas.
As is often the case, however, there are other parts of the NPPF that may pull in a different direction. For example, the chapters dealing with the preservation of the setting of heritage assets and with the natural environment can exert an influence on the application that may lessen or negate the sustainability benefits that naturally flow from solar PV farm electricity generation. Furthermore, on occasions there may be other legal considerations that can be determinative.
For example, section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 requires local planning authorities to give considerable weight and importance to the desirability of preserving the setting of heritage assets. An example of what can go wrong was seen in Gerber. However, it is necessary to sound a note of caution. It is understood that this decision is under appeal to the Court of Appeal. This is not surprising given the potential cost to the developer. Whatever the outcome, the facts of the case illustrate some of the issues present in solar PV farm applications and the tensions they can create.
In recognition of the difficult decisions that local planning authorities have to make regarding solar PV farms, on 25 March 2015 the then secretary of state for communities and local government, Eric Pickles, delivered a written statement to the House of Commons that included a section on “Solar energy: protecting the local and global environment”. While broadly positive, he also said: “Protecting the global environment is not an excuse to trash the local environment. When we published our new planning guidance in support of the framework, we set out the particular factors relating to large-scale ground-mounted solar photovoltaic farms that a local council will need to consider. These include making effective use of previously developed land and, where a proposal involves agricultural land, being quite clear this is necessary and that poorer-quality land is to be used in preference to land of a higher quality.”
More specific guidance, targeted at active solar technology, can now be found in the online planning practice guidance.
Permitted development rights
The Town and Country Planning (General Permitted Development) (England) Order 2015 consolidates, for England, the Town and Country Planning (General Permitted Development) Order 1995 and the 22 instruments that have amended the 1995 Order. In addition to the consolidation, the Order also includes, in Part 14 of Schedule 2, a number of policy changes in England. These included a new permitted development right that applies to the installation, alteration or replacement of solar PV on the roofs of non-domestic buildings, up to a capacity of 1MW, subject to certain limitations. This should enable greater use of non-domestic properties to provide renewable energy.
Prior approval is required to consider the design of the solar panels and, particularly, any effects from glare on occupiers of neighbouring land. The right does not apply in relation to any roof slope that fronts a highway in conservation areas, national parks, areas of outstanding natural beauty, the Broads and World Heritage sites. Nor do they apply to listed buildings or to a building within the curtilage of a listed building or scheduled monument.
This new right – effectively increasing the threshold from 50kW to 1MW – was widely welcomed, making it much easier for commercial buildings across the UK to generate their own electricity. Consequently, many warehouses, factories and offices could save money by having solar PV panels on their roofs. Before considering using these rights, it is always necessary to determine whether or not the site in question is located within one of the more sensitive areas, such as Article 2(3), 2(4) or 2(5) land – conservation areas, national parks, and so on.
Other points
Writing in Estates Gazette on 30 May 2015, Chhavie Kapoor and Mark Reading highlighted the absence of case law on the issue of whether solar panels, which receive light over neighbouring or adjoining land, can acquire a prescriptive right to receive light through 20 years’ use. The Law Commission’s view is that solar panels almost certainly cannot acquire rights to receive light and that, given the increased popularity and commercial imperative of solar PV panels, legislation may be needed to plug the gap.
At the end of March 2015, DECC rubber-stamped the “lift and shift” proposals allowing businesses to take rooftop solar panels with them when they move. From 2019, medium and large installations can be moved without losing the feed-in tariffs. Previously, those tariffs would be lost if the business moved.
This requires a legislative change and there is a four-year wait before businesses can utilise this new freedom as DECC said it would need time to “achieve the desired policy intention”. It is intended that this will only apply to other-than-standalone installations.
Martin Edwards is a barrister at Cornerstone Barristers
