Onshore wind policy in England subject to legal challenge

Campaign group the Good Law Project said it believes the decision is “unlawful”. It has written to the government outlining its intention to seek a judicial review of the decision unless the “exclusion is immediately withdrawn” and onshore wind reinstated into the recently revised national policy statements (NPS) for energy infrastructure that came into force earlier this month.

NSIPs are subject to a different consenting regime to other projects in England. A development consent order needs to be obtained from the secretary of state in order for those projects to go ahead. The NPS for energy infrastructure sets out the need case for relevant infrastructure, and provides the basis on which applications for development consent for those projects are assessed.

The government began consulting on changes to the previous NPS for energy infrastructure in September 2021. Finalised policies were designated last year, and the new policies came into force on 17 January 2024.

While the revised policies strengthen the need case for a range of different energy infrastructure – including offshore wind and solar in the renewables context – onshore wind development is specifically excluded from the scope of the NSIP consenting regime except in cases where the secretary of state directs otherwise on the basis of a so-called ‘section 35’ application by a developer.

In its letter to the government, the Good Law Project outlined its grounds for seeking a potential judicial review. It believes, among other things, that the government has acted unlawfully due to a failure to give reasons for how the continued exclusion of onshore wind takes account of its own policy concerning the mitigation of, and adaptation to, climate change. It further accused the government of failing to lawfully take account of recommendations made by the National Infrastructure Commission last year, which advocated that onshore wind be included within the scope of the NSIPs consenting regime, or of failing to give reasons for rejecting that advice.

Planning reform in 2015 has effectively prevented developers from pursuing new onshore wind projects in England in subsequent years, despite there being support from the devolved administrations for onshore wind projects across other parts of the UK.

Last year, the UK government updated footnote 54 in the National Planning Policy Framework (NPPF) in an effort to appease MPs that were seeking reforms to ease the barriers to onshore wind development. At the time, experts at Pinsent Masons questioned whether the intervention would have any practical impact. The Good Law Project said in a statement that “precisely zero projects to generate power with onshore wind turbines were submitted between [the government’s NPPF update announcement] and December 2023”.

Planning law expert Gary McGovern of Pinsent Masons, who specialises in renewables projects consenting, said: “A clear and consistent theme in feedback emerging from the consultation on the revisions to the NPS for energy infrastructure, including in respect of advice from the National Infrastructure Commission, was that all low carbon infrastructure should be encompassed in the finalised policies and that the concept of energy infrastructure of critical national priority (CNP) should include onshore wind. The government agreed all low carbon infrastructure should be ‘CNP’ – except, that is, for onshore wind, which remains excluded. One reason given was that policy in the NPPF on onshore wind had been ‘improved’. However, in reality, as many in the industry pointed out, those changes do not go nearly far enough and will not lead to many if any new onshore wind projects coming forward.”

“There will be concern that we are potentially heading toward a further period of policy uncertainty at a time where we can least afford it. It has already taken more than two years from first publication of drafts to get the new NPS for energy infrastructure in place. That is far too long. Given the urgent priorities of energy security and net zero, it is critical to have an up-to-date suite of policies in place,” he said.

A spokesperson for the Department for Energy Security and Net Zero told City A.M: “The UK has a world leading renewables sector – home to the five largest operational wind farms in the world and accounting for over 40% of our electricity compared to 7% in 2010. Since 2014, our renewables auction rounds have contracted 30GW capacity across all technologies, including onshore and offshore wind, bolstering our energy security and cementing renewables as a British success story.”

“The streamlined national planning policy ensures councils can respond more flexibly to the views of their local communities when they wish to host onshore wind by looking at the views of the whole community, rather than a small minority, when considering a planning application,” the spokesperson added, according to the publisher.