05 June 2024

The Scottish Government recently refused two applications under section 36 of the Electricity Act 1989 for consent to develop onshore wind farms. Lethen Wind Farm (122MW) within Highland Council’s boundary, was refused consent based on its proximity to Lochindorb Castle, a scheduled monument. Narachan Wind Farm (76.60MW), within Argyll & Bute Council’s boundary, was refused consent based on potential adverse effects on the Special Qualities of the North Arran National Scenic Area.

This article assesses the grounds on which these consents were refused, and how Scottish Ministers approach the requirement in the National Planning Framework 4 (NPF4) to attach significant weight to the reduction of GHG emissions in decision making. It also considers Scottish Government climate targets and the two recent refusals at Bunloinn Wind Farm and Rowan Wind Farm which were recently granted consent.

What does NPF4 set out?

Policy 1 of NPF4 states that “when considering all development proposals significant weight will be given to the global climate and nature crises”. This is meant to encourage and facilitate development that addresses the climate emergency and nature crisis. 

Policy 11 of NPF4 states that in considering the impacts of a renewable energy development: “significant weight will be placed on the contribution of the proposal to renewable energy generation targets and on greenhouse gas emissions reduction targets.” These policies were considered in the section 36 applications with a particular focus placed on policy 11.

What are the Scottish Government Climate Targets?

The Climate Change (Emissions Reduction Targets) (Scotland) Act 2019 sets a target for Scotland to be carbon-neutral by 2045 at the latest. This Act also sets interim targets to reduce emissions by 75% by 2030 and 90% by 2040.

The Scottish Government has nonetheless recently announced that its interim target of reducing emissions by 75% by 2030 compared to 1990 levels is unachievable and will be abandoned, although the 2040 and 2045 targets remain in place.

The Scottish Government will also replace its annual emissions reductions targets with carbon budgets, which will be blocks of five-year emission reduction targets. We are now awaiting publication of a draft climate plan by the Scottish Government to set out how these climate targets will be met.

In considering Policy 11 of NPF4, The Scottish Ministers have been referring to the Scottish Government’s interim 2030 target which is now being abandoned. It is unclear whether this will affect how Scottish Ministers address this point in future section 36 decisions, but it seems likely that, since the 2040 and 2045 targets will remain the same, the same approach will still be taken.

What was the basis of the Lethen Wind Farm refusal?

Lethen Wind Farm was refused consent by Scottish Ministers on 23 February 2024. The Proposed Development was for 17 wind turbines with a combined generation capacity of approximately 102MW, alongside a battery storage facility with output capacity of around 10MW (total 122MW).

The site was approximately 10km northwest of Granton-on-Spey within the Highland Council planning authority area, on approximately 1,458ha of moorland. Inside the site boundary there was a scheduled monument, Alltlaoigh Farmstead, and outside the boundary 5km away was another scheduled monument Lochindorb Castle.

The proposed development was located within the regional Drynachan Lochindorb and Dava Moors Special Landscape Area (SLA) and just over 1km from the Cairngorms National Park.

The main objections to the proposed development were based on there being a potentially significant adverse impact on Lochindorb Castle and potentially significant adverse effect on natural and cultural landscapes, dark skies and wildness Special Landscape Qualities (SLQs). It was held that a public inquiry was unnecessary for Scottish Ministers to reach a decision in this case.

Scottish Ministers considered both the negative and positive impacts of the proposed development, placing significant weight on the contribution of the proposed development to renewable energy generation targets and GHG emission reduction targets. The proposed development was calculated to save approximately 108,965 tonnes of carbon dioxide per year.

Scottish Ministers noted that although significant weight needs to be placed on GHG reduction targets, the policies within NPF4 should be read as a whole and balanced when reaching a decision on applications for wind energy development. As such, they held that the effect on the SLQs of the national park and SLAs as well as landscape and visual impacts would be outweighed by the climate benefits of the proposed development in the overall balance.

Nonetheless, Scottish Ministers held that the proposed development would result in significant adverse impacts on the integrity of the setting of Lochindorb Castle, which could not be mitigated without significantly altering the design and positioning of the development. Scottish Ministers therefore refused the application.

What was the basis of the Narachan Wind Farm refusal?

Narachan Wind Farm was refused consent by Scottish Ministers on 8 March 2024. The proposed development was for 11 turbines with a total of 76.60MW of generating capacity. NatureScot objected on the basis that there would be significant adverse daytime and nighttime effects on the Special Qualities (SQs) of the North Arran National Scenic Area (NSA).

A public inquiry was held given the importance of the NSA. NatureScot advised that the development would give rise to significant effects on areas of Argyll & Bute, mostly in relation to Gigha, as well as parts of Kintyre including the Carradale area and the Kintyre Way. NatureScot also advised there would be some significant effects on the appreciation of the relatively dark skies and potential for significant cumulative effects with other wind farm proposals requiring aviation lighting on Kintyre.

The Scottish Ministers found that the development would have significant adverse localised landscape and visual impacts as well as cumulative impacts that go beyond localised which could not be mitigated. There were also significant impacts on the SQ of the North Arran NSA as a consequence of the development’s aviation lighting which would not be mitigated by the proposed aviation lighting scheme.

Although Scottish Ministers afforded significant weight in favour of renewable energy in accordance with policy 11 of NPF4, they ultimately refused the application on the basis that the significant adverse effects on the SQs of the North Arran NSA would not be outweighed by the benefits of the scheme.

Scottish Ministers considered imposing a suspensive pre-commencement condition to secure the installation of an Aircraft Detection Lighting Scheme, but found that the evidence provided did not provide sufficient assurance that either of the two commonly purported methods for aircraft detection would be capable of being installed on the development within the next 5 years. Scottish Ministers found that the benefits of the scheme did outweigh the adverse landscape and visual impacts.

Have there been any recently Consented Wind Farms?

Scottish Ministers recently granted section 36 consent for both Rowan Wind Farm on 26 April 2024, which has a total capacity of 90.80MW and Bunloinn Wind Farm (consented on 02 April 2024) which has a total capacity of 71.60MW. In these decisions, Scottish Ministers confirmed that NPF4, the Energy Strategy and Offshore Wind Policy Statement make it clear that renewable energy deployment remains a priority of the Scottish Government.

Scottish Ministers acknowledged in these decisions that the proposed developments would have some landscape and visual impacts, including cumulative and aviation lighting effects for Rowan Wind Farm, but that these are considered acceptable in the context of the benefits that the proposed developments will bring.

What are the key takeaways?

NPF4 has shifted the planning balance in favour of renewable development. However, this does not mean that all renewable developments will automatically be consented. Decision makers must place significant weight on the Scottish Government’s GHG reduction targets, but other considerations are still capable of outweighing the significant benefits of renewable development.

Developers must therefore set out sound proposals for how impacts of an energy development set out in NPF4 policy 11(e) will be appropriately addressed through project design and mitigation. In both the Lethen and Narachan decisions, Scottish Ministers held that the landscape and visual impacts would be outweighed by the overall benefits of the schemes, as was the case for Rowan and Bunloinn.

This suggests that there must be a significant constraint that goes beyond traditional landscape and visual impacts for the benefits of renewable development to be considered to be outweighed.

This article was written by Iona Gatenby and Lynsey Reid in our Planning and Compulsory Purchase team.

If you have any queries about section 36 consents or the consenting of Scottish energy infrastructure more widely, please do not hesitate to contact Patrick Munro, director, or Lynsey Reid, senior associate, in our Edinburgh office.

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