Benacre Estates Company & another v Secretary of State for Communities and Local Government & others 2009] EWHC 680 (Admin)

Summary and implications

In the recent case of Benacre Estates, the High Court considered the difficulties of reconciling Planning Policy Statement 22 (the "PPS 22") on renewable energy with Local Planning Policies (the "LPP") on landscape protection.

PPS 22 and the LLP

In 2004 the Government published PPS 22 which sets out their policy for renewable energy. It was envisaged that local authorities should have regard to it when considering planning applications in line with their own LPP and when decisions are made regarding planning applications. The case of Benacre Estates highlights the problems that arise when attempting to reconcile the PPS 22 with LPP. It also reflects the Government's commitment to tackling climate change and supporting renewable energy.

Benacre Estates Company 2009

An Inspector, appointed by the Secretary of State, made the decision to grant planning permission to construct and operate two wind turbines on a site in Kessingland in Norfolk. The Inspector concluded that the development of renewable energy resources, including the erection of onshore wind turbines, was important to facilitate the Government's commitments on both climate change and renewable energy. He considered the following factors in making his decision:

  • the development of renewable energy sources is fundamental to give effect to the Government's commitment to climate change and renewable energy;
  • a broader interpretation of the Government's commitment to climate change and renewable energy will take precedence over the protection of the landscape and areas of natural outstanding beauty;
  • renewable energy schemes are now more commonly part of the landscape and are accepted as such;
  • the overall intensity of the two turbines did not warrant setting aside the Government's policy; and
  • the facts of the case meant that the LPP could be set aside.

This decision went against the local planning authority who had considered their LPP deciding not to grant planning permission.

The Benacre Estates Company (who own a significant amount of land as well as 3.5 miles of Suffolk Coastline that also comprises areas of outstanding natural beauty) and Gisleman Parish Council (who own the area of land adjacent to the proposed wind turbine site) appealed the decision by the Inspector at the High Court under Section 288 of the Town and Country Planning Act 1990.

The Government's commitment to climate change and renewable energy

The Government has set the target that 10% of electricity should be generated by renewable sources by 2010, with the aim that this should increase to 20% by 2020. Currently only 3% of electricity is generated by renewable sources.

As a renewable energy source, wind power is becoming a more popular choice. It is the world's largest growing source of renewable energy and we currently have approximately 40% of Europe's wind resource in the UK. Wind power currently provides enough electricity to supply 1.2m UK homes every year and is viewed by many as one of the more reliable large scale sources of renewable energy.

In the past, approval for wind farms has been hampered by the inefficiencies in Government policy towards planning permission. The main problem has always been reconciling LPP with the requirements for a renewable energy source.

PPS 22 was published with the aim of encouraging developers and councils to consider opportunities for renewable generation in all new developments. This decision was welcomed by many who had previously felt that an overhaul of Government policy with regard to renewable energy was long overdue. PPS 22 is intended to encourage the development of more, and varying sizes, of renewable energy schemes across England.

There are still those who feel PPS 22 is not strong enough to push England forward with regards to reaching the renewable energy targets that the Government has set. The emphasis will always be upon the developer to search out sites, propose plans and bring to fruition renewable energy projects. This can be time consuming and costly and as Benacre Estates Company [2009] demonstrates, problematic. Too many renewable energy projects are hampered by LPP and waiting review by the Local Planning Authority in question. Furthermore, applications to develop sites with renewable energy sources such as wind turbines are being challenged under the Town and Country Planning Act 1990 and therefore slowing the process down even more.

Statistics provided by the British Wind Energy Association indicate that to date nearly the same amount of planning applications for wind farms are approved as they are refused. It is clear that for renewable energy to be more successful in future either the Local Authority will need to take a more sympathetic view to planning applications, or the government will have to overhaul their policy on renewable energy again and make it more robust.