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Solar-Powered Airports - as simple as 1,2,3 and 4?

Solar-Powered Airports - as simple as 1,2,3 and 4?

Tabitha Knowles 25 Sept 2023
When the topic of permitted development rights (PDRs) come up, for most it’s probably householder PDRs that first come to mind.
But PDRs are also enjoyed by wide range of other sectors – including airports.  
The PDRs are a general planning permission granted by Government, not by the local planning authority - allowing for certain types of work to be carried out without the need for planning permission. These rights exist under the General Permitted Development Order (GPDO).
For airports, the PDRs allow for certain operational development to be undertaken without planning permission. These PDRs are in place to allow the airport the ability to respond to the requirements of regulators and passengers, attract business investment and in the case of the Crown, provide development needed for national security.
In practice it is not always clear if PDRs can be used or who they apply to. This complexity was recently tested, by Planning Appeal [1], at Liverpool John Lennon Airport.
The airport had submitted an application to Halton Council for a lawful development certificate (LDC) [2] for a solar farm. The solar farm once up and running would be capable of generating 3MW of renewable energy, all of which would be used by the airport. The application also sought the construction of a substation, an internal access road and a site entrance. Halton Council, however, refused the application. The airport went on to appeal that decision. The Planning Inspectorate’s decision, released last week, agreed with the airport, allowing the appeal. The solar farm and its associated development is in fact Permitted Development.
To benefit from the PDRs, an airport must have an interest in the land and be able to satisfy four criteria – namely that any development:

  1. Takes place at a “relevant airport”;
  2. Is carried out by a “relevant airport operator” or its agent;
  3. Is required in connection with the provision of services and facilities at a relevant airport, carried out by a relevant airport operator; and
  4. Takes place on “airport operational land”.

 

So why – when use of the airport’s PDRs had already been established under other LDCs sought by the airport – did the Council refuse this application?
The previous use of the PDRs, and stated Reason for Refusal, suggests that there was no disagreement with respect to the above 1st and 2nd test.
It also (rightfully) wasn’t a question of whether a solar farm is airport operational development – the above 3rd test. Aviation, given its forecast growth, is projected to become one of the world’s largest emitting sectors by 2050; the sector must shift to net zero. Earlier in the year, Government consulted on its ambition for all airport operations in England be net zero emissions by 2040. Liverpool John Lennon Airport has already committed to meeting ‘Scope 1’ [3] and ‘Scope 2’ [4] net zero by this date. A solar farm at the airport, powering its operations, will be an important part of this transition. This type of development should be treated as operational development, essential for day to day activity – and doing otherwise could unnecessarily hinder the airport’s ability to meet its 2040 target.  
Instead, it came down to the above 4th test. The Council stated that the airport had failed to prove that the site in question was part of the airport’s operational land and therefore was not suitable for an LDC.
Airport operational land generally means the area within which airport operations take place, for example, the area covered by the Aerodrome Licence. In practice, establishing what constitutes operational land is far more complex because such land has a specific meaning within the planning system – with reference to Sections 263 and 264 of the Town and Country Planning Act 1990, as well as the Airports Act 1986.
Key considerations may include:

  • if the land is being used for, or is being held for the purpose of, airport operations – and that this use is being carried out by a statutory undertaker i.e., a relevant airport operator (see 2nd test above).
  • when the land was acquired, who the land was acquired from and the mechanism used to transfer ownership of the land.  
  • whether the land in question benefits from a planning permission for airport operations.  
The Planning Inspectorate disagreed with the Council – stating two factors leading to its conclusion that the land was in fact airport operational land:

  • The land is not accessible by the public, and can only be accessed past airport security within a controlled aviation area; and
  • The land already benefits from a planning permission for airport operations – being a permission for an extension of the airport’s Runway Extension Safety Area (RESA) and the erection of a security fence to enclose the land.
Whilst this is a positive outcome for the airport, it has been a protracted exercise. The airport’s LDC application was submitted in December 2021, with a 3-month target decision date of March 2022 – yet it has taken a further 18 months, with the added cost of an appeal, to reach this point. This is the opposite of what the PDRs should confer – speed and certainty for those airports who need to confront a strict and changing airport regulatory environment, to provide operational development to support passengers and operators and attract inward investment.
These rights are not, however, automatic and care does need to be exercised in understanding if they apply and in their execution. Our experience is that it’s key for an airport operator and a local planning authority is to understand the requirements and ensure such rights are consistently administered.
Lichfields is well-versed on the Airport PDRs mechanism – across all four UK countries - and regularly advises airports, local planning authorities and those with 3rd party interest on its use. Please get in touch if you need any help on this topic.

Image Credit: Zachary DeBottis, Pexels

 

[1] APP/D0650/X/22/3313760

[2] 22/00019/PLD

[3] Scope 1 emissions - emissions owned and controlled by the airport operator, such as energy generation and airport vehicles.

[4] Scope 2 emission - emissions from the off-site generation of energy purchased by the airport operator.

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Putting wind into the sails of planning? A (small?) step in the right direction

Putting wind into the sails of planning? A (small?) step in the right direction

Katie Brown 11 Sept 2023
If you work in the renewable energy or planning sector, last week’s announcements will not have gone unmissed.
On Tuesday 5th September, Michael Gove, the Secretary of State for Levelling Up, Housing and Communities, published a Written Ministerial Statement on onshore wind development. An Updated National Planning Policy Framework (‘NPPF’) was also published.
In previous blogs, I have discussed the role of wind energy, its current policy framework and the Government’s appetite for change. As someone who is keen to become more climate aware, I provide thoughts on the policy changes; changes that can best be described as tinkering around the edges.

What are the minor policy changes?

In his Written Ministerial Statement, Michael Gove commented that the Government has consulted on a number of proposed changes relating to onshore wind. The Government continue to believe that decisions on onshore wind “are best by local representatives who know their areas”. They also recognise that policy needs to strike the right balance “to ensure that local authorities can respond more flexibly to suitable opportunities for onshore wind energy, contributing to electricity bill savings and increasing our energy security”.
The changes include:
  1. Amending the planning tests for proposed onshore wind developments “to make it clear that suitable locations can be identified in a number of ways”.

  2. Adjusting policy so that local authorities “can more flexibly address the planning impacts of onshore wind projects as identified by local communities” (on which they intend to publish further guidance).
In addition to this, the Government is “clear that local areas that support hosting onshore wind should directly benefit” and they have consulted on proposals for improved rewards and benefits, such as potential energy bill discounts.

So how do these changes play out in the Updated NPPF?

The Government has set out positive and good intentions with the above changes and certainly when we read the Statement, we awaited the Updated NPPF with bated breath. So how has the NPPF been updated and what will it actually mean for the planning process?
The NPPF (July 2021) set a clear policy framework for onshore wind. Paragraph 158 b) stated that “when determining planning applications for renewable and low carbon development, local planning authorities should… approve the application if the impacts are (or can be made) acceptable” except for the exemptions in Footnote 54; a proposed wind energy development involving one or more turbines. These should not be considered acceptable unless it is an area identified as suitable for wind energy development in a development plan and, following consultation, it can be demonstrated that the planning impacts identified by the affected local community have been fully addressed and the proposal has their backing. This is a negatively worded policy position which has put a near block on development.
The Updated NPPF now reads (it is a game of spot the difference):
In respect of new renewable and low carbon development, Paragraph 158 remains the same.
A new Footnote (Footnote 53a) reads:
“Wind energy development involving one or more turbines can also be permitted through Local Development Orders, Neighbourhood Development Orders and Community Right to Build Orders. In the case of Local Development Orders, it should be demonstrated that the planning impacts identified by the affected local community have been appropriately addressed and the proposal has community support.”
Footnote 54 reads:
“Except for applications for the repowering and life-extension of existing wind turbines, a planning application for wind energy development involving one or more turbines should not be considered acceptable unless it is in an area identified as suitable for wind energy development in the development plan or a supplementary planning document; and, following consultation, it can be demonstrated that the planning impacts identified by the affected local community have been appropriately addressed and the proposal has community support”.
The NPPF also provides a new bullet point to Paragraph 158 (c). This states that “in the case of applications for the repowering and life-extension of existing renewable sites, give significant weight to the benefits of utilising an established site, and approve the proposal if its impacts are or can be made acceptable”.
[Lichfields emphasis]



A real change or just ‘hot air’?

Those people involved in the renewable energy and planning sector will have responded to the consultation on planning reforms at the start of this year (as did we) and were hopeful that national policy would be updated to positively plan for all forms of renewable energy as well as understand and reference the commercial backdrop to bringing forwards development.
Instead, the Updated NPPF retains the negatively worded policy. It includes ‘tinkered wording’ set in the context that wind energy developments should not be considered acceptable. An unfair hurdle. We discuss our thoughts below.
Looking at things holistically the changes are underwhelming when compared to the grand promise of last year. There is a real missed opportunity. Could the Government have waited and provided one wholescale update to national policy to reflect the importance of all forms of development, including housing, employment and renewable energy? They should come hand in hand. It would appear that a quick decision has been made with little understanding of the bigger planning picture. Does this rule out any more changes in the short or long term?
If we were to turn back the clock 10 months, people in the renewable energy sector were getting excited. The Government had released its growth strategy and recognised that it needed to address barrier to wind development by reducing the “unnecessary burdens to speed up the delivery of much needed infrastructure”. We have previously commented on what this might look like in previous blogs; everything from considering wind developments in the context of prevailing planning designations and a set of locational requirements (both geographically and in relation to grid connections), to what a material planning ‘hook’ might look like to achieve local community support. Instead, however the changes are minimal and, in our view, make no real difference in reality. The negative wording remains, and this means that new wind farms will not be considered solely on their planning merits.
Turning our attention to the revised NPPF wording, the new Footnote 53a states that wind energy can now be permitted through Local Development Orders (‘LDO’), Neighbourhood Development Orders (‘NDO’) and Community Right to Build Orders (‘CRBO’). These all grant permission for a specific type of development in local areas and a CRBO is a form of NDO which can be created by a local community organisation. The key message here is that they are all intended to involve or be brought forward at a local and community level. We have significant questions over whether this actually provides a more flexible policy position for commercially sized wind developments. As far as we are aware, there has been nothing stopping these orders coming forwards to date and if they need community support what actually changes? As we have previously suggested, what is needed is a joined up policy approach at a national and local level whereby sites are allocated, or identified for development (similar to all other forms of development) and where applications are decided on based on ‘planning merits’ and ‘planning balance’ by a local authority or Inspector.
There have been changes to the need for community backing. This is now referred to as “community support”. Planning impacts now need to be “appropriately addressed” rather than “fully addressed”. This is semantics and it is unclear as to what this means, whether in reality it does change policy and how it should be interpreted. What does community support look like, does it differ in each area and for each development? Earlier this year, Lichfields responded to the Government’s consultation on ‘Developing Local Partnerships for Onshore Wind in England’ on behalf of clients. We suggest that Local Plans should contain policies to encourage the use of community contribution payments as part of developer’s engagement with communities, maybe delivered through the Community Infrastructure Levy. The idea of discounted energy rates is not, at present, a matter than can be given weight as a material consideration in the determination of planning applications.
We will watch out for further guidance, a topic for a future blog maybe…?

Image Credit: Karsten Wurth, Unsplash

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