PlanningBlog – Brodies LLP

There is a lot of technical work going on to resolve air traffic radar issues which are blocking wind farm developments. Not surprisingly there is also a debate about how technical solutions are going to be paid for. The “freeloading” issue often faced by housing and other property developers is part of this debate – ie. why should the first developer pay for the solution, if subsequent developers get the benefit of it for free.

A linked issue is the use of suspensive planning conditions. These conditions are commonly used to postpone or phase development until key infrastructure is in place. Following the British Railways Board decision by the House of Lords, the advice from Scottish Government is that suspensive conditions can be used without any need to demonstrate a reasonable prospect of the outcome (infrastructure delivery) being achieved. If the developer wants to pursue a planning application even if there are uncertainties about delivery of essential infrastructure, that’s his risk.

That approach was taken to aviation radar in the Tormywheel wind farm appeal decision, which was by a very experienced Scottish Government reporter.

The Tormywheel approach is supported by some who say that it gives a developer certainty that all other planning issues have been resolved. That lessens the risk, enabling money to be spent on pursuing technical solutions to radar issues.

Others argue for suspensive conditions to be limited to situations where there is a prospect of a radar fix, maybe even a high degree of certainty of a fix being achieved. They argue that, without such a prospect, the use of suspensive conditions inhibits other wind farm developments. This is because consented sites have to be taken into account in cumulative impact assessments. The height of wind turbines means that cumulative impact can be a relevant issue over a wide area, which might include sites without radar problems.

These differing views are causing a headache for the Scottish Government’s Energy Consents Unit, which is reviewing its stance on the use of suspensive conditions, especially since there does not appear to be any actual evidence that sites are being held back because of suspensively conditioned sites. The outcome of the review might have ramifications for other development sectors, as it could trigger a review of the general planning policy on the use of suspensive conditions. One for property developers to watch …..