In the face of mounting pressure to achieve its decarbonisation goals, in December 2022 the United Kingdom government launched a consultation in respect of the prospect of relaxing the planning regulation of the construction of onshore wind turbines.
Following the Isle of Man’s own decarbonisation commitments under the Climate Change Act 2021 and the government’s Economic Strategy, litigation advocate Andrew Langan-Newton explores the Isle of Man public and planning law in respect of the approval of onshore wind turbines.
Wind Turbines and the Requirement for Approval
Under section 7 of the Town and Country Planning Act 1999, planning approval is required for any ‘development’ of land. The term ‘development’ includes any building, engineering, mining or other operations in, on, over or under land in the Isle of Man. This wide definition would capture the construction of wind turbines unless they fall within a planning exemption.
Unlike solar photovoltaic panels that have benefitted from permitted development orders, granting exemptions for planning approval in specified cases, Tynwald has not exempted any planning approvals for onshore wind turbines.
Consequently, in the Isle of Man if a planning application for wind turbines is made, Planning & Building Control must consider the same in accordance with the provisions of the published Isle of Man development plans, the principal plan of which is the Isle of Man Strategic Plan 2016 (“the Strategic Plan”).
The Isle of Man Experience with Wind Turbines
Since Tynwald first debated the prospect of an Isle of Man wind farm in October 1990, there have been very few planning applications for wind turbines. The most high profile of these applications was for three 10KW turbines on the headland south-east of Port Erin that was denied approval in a planning decision dated 6 April 2017 (“the Port Erin Decision”).
The Port Erin Decision related to an application for three turbines to supply renewable electricity to a domestic dwelling. The proposed height of each turbine was 15 metres. As an indication of scale, the size of the tallest onshore wind turbines recently proposed in East Ayrshire, Scotland, stand at 260 metres.
The Port Erin Decision was made on the grounds of two factors:
The applicant had not demonstrated that there would be no adverse impact to the operation of the Isle of Man Airport, the flightpath to which was near to the planning site; and
The visual impact of the turbines was decided to have been so harmful to the surrounding environment that it outweighed any environmental benefits of the turbines.
In respect of the first factor, it was suggested that a condition could be placed on any approval for the applicant to first provide satisfaction that there would be no adverse impact by the turbines to the operation of the airport. However, approval was not granted with that suggested condition apparently in light of the second factor.
In respect of the second factor, the closest dwellings to the proposed turbines were, at 300 metres away, considered too far to warrant refusal on aesthetic grounds. However, as viewed from a footpath and a historic monument in the vicinity of the proposed site, the turbines were considered, by Planning & Building Control, to have an unacceptable visible impact to the public that would justify denying the application.
Planning Law and Wind Turbines
The principal legislation relevant to planning applications is the Strategic Plan, which is also supported by area plans relevant to specific regions of the Isle of Man.
In respect of wind turbines and renewable energy generally, Energy Policy 4 of the Strategic Plan has been interpreted as meaning that Planning & Building Control will support their installation unless an application fails to accord with the environmental objectives and policies of the Strategic Plan. The Strategic Plan indicates that although wind turbine applications will require an environmental impact assessment, this is unlikely to be the case for a domestic wind turbine.
The Port Erin Decision and other previous planning decisions indicate that the visibility of domestic turbines have been countervailing factors to the granting of approval in the domestic context. However, the planning law in relation to renewable energy has expanded with the introduction of the Climate Change Act 2021 and government policy on renewable energy. The principal change is the obligation for Planning & Building Control in making a decision, to take into account the fulfilment of the climate change duties of section 21 of the Climate Change Act 2021.
The climate change duties include acting in the way best to contribute to meeting final and interim emissions reduction targets. The first interim emissions target was approved by Tynwald in March 2022, enshrining a legal obligation to reduce emissions by 45% (of a 2018 base) by the year 2035.
The Isle of Man court has not yet considered a challenge to a denial of planning approval for a wind turbine. Should a claim be brought in the future, the court may take guidance from the English High Court judgment in R (McLennan) v Medway Council . The Medway judgment noted that under the laws of England & Wales, there was no differentiation between a large renewable energy scheme (in that case, domestic solar panels) and a small one in terms of the positive contribution towards reducing emissions, a material planning consideration. Although based on different legislation, the Medway judgment does indicate a shift towards a prioritisation of renewable energy in the exercise of the decision making of a public body. This shift may be followed by an Isle of Man court when balancing purely aesthetic questions as against the positive contribution towards reducing emissions.
If you have any questions on the issues raised in this article, please contact Andrew Langan-Newton.
This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.