For some years now, those opposed to wind farm development have been attempting to establish substantial fixed separation distances between turbines and residential premises, with the separation distance pegged to turbine height. Until relatively recently, the debate had taken place primarily at a national level, with Lord Reay’s Private Members’ Bill leading the charge. Under that Bill, the separation distance for a turbine between 100m-150m to blade tip would be 2km. Given that commercial turbines are now rarely below 100m to blade tip, the result would be to effectively rule out further commercial onshore wind energy development across much of the UK.

As the past few weeks have shown, there is a sizeable and vocal group within the Tory side of the Coalition, including the junior minister at DECC, that supports the principle behind Lord Reay’s Bill and sees no place for further onshore wind. However, the Government as a whole has remained unmoved. It has not only resisted attempts to prescribe fixed separation distances, writing a case-by-case merits based approach into the NPPF, but continued to give strong policy support to onshore wind, both through the NPPF and through national energy policy. There is no expectation that Lord Reay’s Bill, or any variation upon it, will make it onto the statute book.

At the local level, though, the tectonic plates have been shifting. Many local authorities, particularly English local authorities, are instinctively anti-wind, perhaps unsurprisingly given the fierce resistance a wind farm proposal tends to engender amongst those near to the proposal. The failure of the anti-wind lobby at national level has led some to take matters into their own hands. At least two local planning authorities have produced “guidance” documents which contain fixed separation distances, but that are no Supplementary Planning Documents (SPDs), let alone Development Plan Documents (DPDs). At least one minerals and waste authority has passed a resolution supporting fixed separation distances, albeit that is not and cannot be planning policy.

More significantly, over summer 2012 two LPAs took formal steps to make substantial fixed separation distances part of local planning policy.

The first, Milton Keynes Council, adopted a SPD that imposes fixed separation distances similar, albeit not identical, to those in Lord Reay’s Bill. For example, under the Milton Keynes SPD the turbine/residential separation distance for a turbine 100m to blade tip would be approximately 1,250m. If the SPD were applied to local planning decisions, it would effectively prevent commercial wind energy schemes in all but tiny parts of the Borough.

The second LPA, Wiltshire Council (a unitary authority), resolved to add a new paragraph dealing with separation distances to its submission draft Core Strategy shortly before that draft DPD came before the Inspector for examination in public. The new paragraph, tacked onto the relatively benign Policy 42 that previously comprised the Council’s policy regarding standalone wind energy installations, effectively imports the separation distances in Lord Reay’s Bill into the Core Strategy.

The Inspector considering the Wiltshire Core Strategy instructed the Council to undertake a full consultation (which has recently concluded) regarding the addition of fixed separation distances to its Core Strategy. Whether the Council pushes the fixed separation distances further, such that the Inspector has to reach a decision on soundness, remains to be seen.

However, as regards the Milton Keynes SPD it now seems certain that matters will come to a head.

RWE NPower Renewables has brought a claim seeking judicial review of the Milton Keynes SPD. The claim points out that legislation and Government guidance require SPDs to supplement, not contravene, adopted local plan policies. It is said that the SPD is a radical departure from the local plan, and extant regional planning policy, and that the arbitrary separation distances proposed are in conflict with existing policy. It is further said that if the Council had included its separation distance policy in a DPD, the policy would fail the “soundness” test, not least by reference to the NPPF. It also alleges that the Council has misused the SPD as a way of circumventing formal examination in public of DPDs.

The Claimant in the Milton Keynes challenge is supported by another wind energy developer as interested party; Ecotricity (Next Generation) Ltd.

Milton Keynes Council has now filed an acknowledgement of service resisting the claim for judicial review in its entirety.

A decision on permission is expected imminently.

Whatever the result, the Milton Keynes litigation seems likely to have consequences for the wind farm separation distances debate, and in particular the phenomenon of LPAs seeking to alter the direction of national policy through their local development frameworks, that go well beyond the Borough boundaries.

Gordon Nardell QC and James Burton act for RWE Npower Renewables in the claim against Milton Keynes Council.