There is an interesting discussion on Linked In under the title “The planning system is broken when it comes to wind energy”.

It’s clear that there is a great deal of opposition to wind and the suggestion is that better community engagement and consultation, possibly with financial contributions to the community if permission is granted, would be helpful. The current system is supposed to be “local planning” it is said; is it right that there is a 62% success rate at appeal?

Regular readers of this blog will know that I did some research last year into the origins of the planning system and read the Uthwatt Report. New readers may want to look at this post . One of the interesting things I found was that when the Town and Country Planning Act 1947 nationalised development rights, the intention was that it would be accompanied by compensation. However, whilst this was in the Act, when it came to it, the TCPAs of 1953 and 1954 changed the system and compensation was not paid in most cases, it was frozen at 1947 values and was eventually abolished by the Planning and Compensation Act 1991. (There’s more about that in my article on third party rights of appeal published in the January JPEL a copy of which you can find here - preceded by a couple of DCLG letters). Another key point is that the planning system was enacted to enable development to occur, as the terms of reference for Uthwatt made abundantly clear.

So in a discussion about community engagement I suggest we should stand back a bit and bear those things in mind. I also note that many ordinary people are very dissatisfied with a planning system which often prevents them from altering their houses as they wish. Is this because they do not accept that their rights to alter or extend their houses have been removed, or not justly removed? I don’t think anyone would suggest that there should be a free for all, and Uthwatt and the legislature in 1947 recognised that the right to develop is constrained by the requirements of good-neighbourliness. Planning plays a role in environmental protection today.

I think we should also remember that there is a presumption in favour of development. It dates back to 1923 and was an assumption underlying the 1947 nationalisation of development rights. It has been consistently reaffirmed since then, most recently in the now statutory presumption in favour of the development plan, unless material considerations indicate otherwise. This background is important.

Localism comes in here as well. I was at a discussion at the National Planning Forum yesterday (in my capacity as Chair of the Law Society’s Planning and Environmental Law Committee) on the Localism Bill, addressed by Shona Dunn, Planning Director at DCLG, and there were some striking contributions. One perspicacious councillor said the success of the Localism Bill depends on councillors. And another contributor pointed out that the Bill is not Open Source Planning (the Conservative pre-election paper), but that many people do not realise this.

So where does local opposition and possibly a community right of veto, third party rights of appeal and profit sharing schemes sit in the light of this? How would a community right of veto sit with household extensions?

Are not decisions on development, decisions about the public interest, meaning the interest of the whole public? Which means at least balancing the advantages against the disadvantages. “Put it somewhere remote where few will see it” can be met with “Put it near somewhere which is already developed”. The decision has to be taken on the basis of all material considerations and not just some.

The profit-sharing schemes can certainly sweeten the pill. But they will not prevent opposition (which is a tribute to our independent thinking nation). They might even help communities to promote their own schemes. But if there is a proper material consideration which militates against the grant of permission, no amount of profit sharing will make it go away. And similarly, if the planning case is that permission should be granted, it would be unlawful to refuse just because there was no profit-sharing scheme.

Good consultation can certainly win round people of goodwill. And may result in changes to the scheme. It is of course highly desirable to talk, listen, explain, persuade. That’s only polite. That’s just being a good neighbour, whether in wind farms or anything else. At its most mercenary it may result in an easier ride. But at the end of the day, do we not need to remember the backdrop - that we are dealing with people’s assets and that these are public interest decisions with which in some cases not everyone, a majority even, will agree?

The Linked In discussion can be found here.