Michael Fenny, Principal Planner, examines some of the challenges developers may face when considering making amendments to consented wind farm projects that have stalled as a result of decreasing revenue support.
With the UK government announcing that future Contracts for Difference will focus on ‘less established technologies’ - a definition which excludes onshore wind - many consented wind farm projects have stalled.
To counteract decreasing revenue support, developers need to seek a way to turn these back into viable projects by increasing profitability. The simplest way is usually to seek to increase capacity through the use of taller or more efficient turbines, however the ability to make such design changes can be highly dependent upon where the project is located.
To vary an existing planning permission there are three principal routes: a ‘non-material variation’ request; a section 42 application to amend the planning conditions; or submit a new application for the amended scheme. Unfortunately, knowing the best route to take is not always clear as the conditions surrounding each of these can vary considerably.
The first option, a ‘non-material variation request’, relies on the planning authority agreeing that the proposed change is indeed not material. This is a common sticking point. Defining a ‘non-material’ change is entirely within the planning authority’s discretion – there is no statutory definition. Some planning authorities may accept a proposal to increase the blade tip height or rotor diameter by a couple of meters as a ‘non-material’ variation, whilst others deem such a change as ‘material’. Thus the ability to make a non-material amendment can often turn into something of a postcode lottery.
If unsuccessful with a non-material variation, most developer’s preference will instinctively be to submit a section 42 application, given the considerable time and cost savings over a new application. Crucially, however, the ability to do this is dependent upon the original planning permission including a condition you can modify to cover the changes being sought. A section 42 application can also not be used on its own to amend the description of the development.
Consequently, if a planning authority wants to avoid future variations after permission has been granted, they can effectively do so through imposing tightly defined descriptions of development or writing carefully constructed planning conditions.
Assuming that a section 42 application is viable, developers still may face a challenge over whether a revised or updated Environmental Impact Assessment (EIA) Report is required (for schemes that were originally subject to an EIA) and if so, how this is presented. Whilst some planning authorities have accepted a short addendum or update report, others have requested a new EIA be undertaken. Again, something of a postcode lottery.
In short, planning authorities hold considerable power in determining how they wish to handle proposals to make design changes to consented wind farm projects and the information they request in support of such applications. Until this inconsistency is addressed, many developers will face an extremely difficult challenge in establishing the costs, timescales and risks associated with making such amendments to consented schemes.
RPS’ expert advice can provide clarity on the best approach to take, contact Michael Fenny for more information.