Windfarm company take on MoD in court

Petition on seismic budget allocation will go to judicial review

A DEVELOPER of commercial windfarms, which applied for planning permission for a windfarm within the consultation zone of the Eskdalemuir seismological monitoring station, has succeeded in petitioning a court for a time extension to begin proceedings for judicial review.

The planning application of Energiekontor UK Ltd at the Little Hartfell site was objected to by the Ministry of Defence in accordance with its policy on noise budget.
The petition was heard in the Court of Session by Lord Tyre.
The seismic array comprises seismometers intended to detect vibrations caused by nuclear tests.
Government policy, managed by the MoD, is to protect the array from seismic vibrations from other sources which may interfere with its intended purpose.
The forces acting on wind turbines cause vibrations in their structure which can travel underground for many kilometres.
As a result of a 2005 report, a 10km exclusion zone operates around the array, along with a further 50km consultation zone.
MoD policy is to object to any windfarm development within the exclusion zone and must be notified of any planned developments within the consultation zone.
The report authors recommended a seismic ground vibration threshold for windfarms within the zone, known as the noise budget.

In 2014 another report challenged the 2005 report’s methodology in calculating the noise budget and recommended it be replaced with a physics-based algorithm.
This could allow more windfarms within the exclusion zone. The MoD allocates noise budget on a first-come, first-served basis.
The petitioners applied for planning permission in 2018 for a windfarm with a capacity below 50 megawatts within the consultation zone. The MoD objected because the budget had already been reached.

Before the MOD submitted its formal objection, the petitioner had learned that an objection was likely because all the available noise budget had been allocated to a scopingapplication submitted for an application for a windfarm at Faw Side, Ewes, with a capacity exceeding 50MW.
The petitioner submitted that the MoD’s policy was unreasonable because it treated applications differently, depending on the development’s capacity.
In relation to a proposed development, whose capacity did not exceed 50MW, noise budget was allocated to a development when the MoD was notified by a council’s planning authority of the application.

In relation to a proposed development, whose capacity exceeded 50MW, a budget was allocated when the MoD was notified by the Scottish ministers of a scoping request by the developer for an environmental impact assessment report.
This allowed larger developments to be allocated noise budget at an earlier stage of the planning process than smaller ones. There were, therefore, public policy reasons for allowing the petition to continue.
The MoD opposed the application for a time extension. It had been inappropriate and unreasonable, having regard to the principle of good administration, to wait until the end of 2019 before raising proceedings. Lord Tyre concluded it was equitable to extend the time period. He said: “A consequence of the current MoD policy is that a single, large project, which has not reached the stage of submission of an application, can more than exhaust the available noise budget and operate as a block on windfarm development in a very large area and for an indefinite period.
“I have no view on the petition’s substantive merits, beyond stating I’m satisfied the statutory threshold of real prospect of success is met. “It seems the argument ought to receive judicial consideration and I see no advantage in refusing to allow the petition to proceed.
“The mere fact of permission being granted will not, so far as I am aware, have any immediate practical consequences.

“The current situation is that, because of its proposed capacity, the Faw Side proposal not only exhausts but greatly exceeds the currently available noise budget so there does not appear to be any question of interference with progress with a development which would otherwise be under construction.
“Nor would the remedies sought affect any windfarm development which has already received the relevant planning approval.”
He concluded: “I do not consider that any prejudice to the MoD has been identified. “The petitioner does not dispute that the MoD is entitled to devise and enforce a policy to protect the array from interference with its detection capabilities.”
“The challenge is concerned rather with allocation of priority as between proposed developments, which should be a matter of indifference to the MoD so long as there is noise budget available for allocation.”