Delivery options

Nowadays environmental issues frequently present the public with a dilemma that many fail to appreciate. While we all appear to enjoy the benefits of modern technology some are reluctant to accept the consequent environmental disadvantages. Two current areas of controversy in planning amply demonstrate this. The first is the explosion in the use of polytunnels on farms. These large structures can cover vast tracts of farmland, often in the most attractive parts of the countryside. Consumers want to eat strawberries round the year but, judging by the adverse publicity and recent court cases, some sections of the public do not want to see the countryside around them vanish beneath a sea of polythene. But the alternatives are as equally unattractive: either strawberries transported by air freight or no out-of-season strawberries. Put bluntly the public cannot have its punnet and eat it.

Mobile phones

Even more controversial is the public's love affair with mobile phones. There are more mobile phones in circulation now than there are people in the land. The mobile phone industry is truly massive, generating billions of pounds of revenue and employing tens of thousands. Yet when proposals to site base stations are drawn up they usually meet with outright hostility from local residents. Again it can be argued that this opposition is illogical as you cannot have the benefits without the drawbacks.

The perceived problems associated with each of these forms of development vary. For example, polytunnels are considered to be visually intrusive and, when the wind blows, extremely noisy. There are also the traffic generation implications, with the associated problems of noise and disturbance, as crops are carried off to the supermarkets, often in the middle of the night.

Equally, mobile phone base stations carry with them the fear of harm to health. (A consequent fear is that property values in the locality will be adversely affected).

No win-win situation

These two examples indicate that even greater battles lie ahead as the nation is forced to address the issue of alternative energy sources.

It is already clear that apparently environmentally desirable forms of development, particularly wind turbines, generate considerable opposition, especially in areas of special control such as conservation areas and areas of outstanding natural beauty. Questions need to be asked as to how the planning system will cope with other alternative energy development such as tidal barrages. The experience so far with wind farms is far from encouraging.

The issues raised by the new, and often essential forms of development, need to be debated by the public at large. There are real problems to be grappled with that go to the heart of the debate over sustainability.

The simple truth is that there is no 'win-win' situation. Opponents of nuclear power often argue that it is not a carbon free solution as considerable amounts of greenhouse gases are emitted in the construction of the power stations and the mining of radioactive material. Undoubtedly that must be true but the same argument applies to fossil fuel power stations, tidal barrages, solar panels and the like. There are hard decisions to be taken.

The planning system has begun to address the issues. In the last two months the government has issued to vitally important documents that seek to map out a future for alternative energy development.

One route applies to microgeneration whilst the other, more controversial route, is set out in the recent planning White Paper Planning for a Sustainable Future. Different routes but heading towards the same destination; a more sustainable future.

Microgeneration '“ wind turbines and solar panels

In April 2007 the government issued a consultation paper Changes to Permitted Development '“ permitted Development Rights of Householder Microgeneration setting out the government's proposals for changes to the planning system in relation to the installation of microgeneration equipment for domestic properties. It proposes a more permissive regime to be brought about by changes to the General Permitted Development Order 1995 (GPDO). It builds upon some of the ideas floated in the draft Planning Policy Statement Planning and Climate Change which was issued in December 2006. The consultation period closes on 27 June 2007.

The consultation paper covers a variety of forms of microgeneration. It also proposes a fairly flexible regime so that the only areas where additional restrictions would apply would be conservation areas and World Heritage sites. The existing safeguards for listed buildings '“ primarily the need for listed building consent '“ would continue to apply. Consequently no additional provisions in the GPDO are proposed.

As wind turbines and air source pumps can give rise to noise problems it is proposed to place limits on the levels of noise generated so that they will be unlikely to cause annoyance or sleep disturbance by a noise level based approach as opposed to a distance-based limit.

Another major concern is visual impact. Therefore it is proposed that the approach should mirror that taken in relation to antennas and qualify permitted development rights so as to require that they are exercised so as to minimise their visual impact and that when no longer needed for microgeneration they should be removed as soon as reasonably practical.

In some exceptional circumstances it may also be appropriate for a LPA to use their powers under Article 4 of the GPDO to further restrict the use of permitted development.

In relation to the various forms of microgeneration, the consultation paper makes the following observations and proposals.

Biomass

While this covers plant and animal material, biomass most commonly means wood in domestic applications. The installation is usually a single-room heater or a boiler to feeding into a central heating system and stoves that burn logs, pellets or wood chips. To avoid a net increase in carbon dioxide emissions, the wood must come from sustainable sources to ensure that any gas released by combustion is reabsorbed by new trees.

While planning control is not an issue for installing a boiler or stove, many biomass schemes will need a small extension or outhouse to store fuel and allow access for service vehicles. They will also need an external flue to release combustion gases. The government does not propose development rights for extensions ahead of new householder rights (which are also under review). However, a flue of up to one metre above the ridge line of the highest part of the roof may be permitted.

Solar energy

This is the most common form of domestic microgeneration. It requires either a water heating system or a photovoltaic array to convert solar energy into electricity. Around 90 per cent of water heating and 50 per cent of photovoltaic systems are considered permitted development. Solar water heating systems meet 50 per cent of a household's hot water needs in a year while photovoltaic technology will cut the average annual electricity bill by about 30 per cent.

Projections above the roof line, position and cumulative impact are the most significant visual and landscape factors. In addition, stand alone equipment may have issues of safety, separation from nearby properties and overshadowing. It is proposed that solar microgeneration would be permitted providing any equipment projects no more than 15cm form the roof or wall.

No part of the installation should be higher than the highest part of the roof. Stand alone units should be no more than 4m high and no closer than 5m to neighbouring property. The surface area of the panels should be limited to nine square metres. Installations would require permission in conservation areas, world heritage sites or where they would face onto or be visible form a highway in these areas.

Heat pumps

These draw heat from the ground, air or water and release it at a higher temperature inside the building. Ground source pumps can supply space and water heating as well as cooling. Water pumps are submerged in a river or lake or installed through a vertical bore. The excavation of trenches may become an issue in archeologically sensitive areas although PPG 16 is robust enough to deal with this issue.

Air source pumps may have a visual impact. It is proposed that heat pumps would be allowed if internal noise is less than 30decibels and external noise less than 40decibels. Air source pumps would be restricted in conservation areas and world heritage sites and would require permission where they face a highway in such areas.

Combined heat and power

Combined heat and power (CHP) is widely used throughout industry. Domestic scale CHP has the advantage of avoiding electrical loss over transmission lines. It works on a household's demand for heating rather than electricity. A micro-CHP system can be dropped in to replace a domestic boiler, raising few planning issues.

However, larger CHP units that may be needed to supply a block of flats may need more space. The government has rejected suggestions to remove planning controls from structures '“ which could be as large as a domestic garage '“ to accommodate these larger CHP units. As with biomass, flues of up to one metre above the ridge line would be allowed.

Wind turbines

Wind power has the third-largest share of domestic microgeneration. Whether on a building or stand-alone site, the wind turns a rotor connected to a mill, pump or electricity generator. A 1kW turbine with a rotor blade of 1.75m in diameter could meet up to 20 per cent of a household's annual electricity needs and even more in windy rural locations.

Wind power has the greatest potential planning impact of all microgeneration technologies because it is likely to become a mainstream product. This raises questions over size, scale, safety, nuisance, bats and radar. The government proposes that wind turbines mounted on buildings should be limited to 3m above the highest part of the roof with a maximum blade diameter of 2m.

Only one turbine would be permitted on buildings less than 15m high. Four turbines would be allowed on buildings of 15m or more in height. Stand-alone turbines would be permitted development if they are less than 11m high, including the blade, and blade diameter is no more than 2m. Installations should be at least 12m from boundaries. In all cases, internal noise must be limited to 30 decibels, with a 40 decibel limit on external and garden noise.

Appeals process

If the microgeneration proposals do come to fruition it will be interesting to see whether or not they become mired in the same level of controversy that the major alternative energy projects attract.

Wind farms seem to have their supporters and detractors in equal measure. Some see them as elegant structures embellishing the landscape like 21st century windmill. Others take the contrary view and consider their visual impact to be wholly unacceptable. In February the British Wind Energy Association stated that 12 out of the 18 planning decisions on onshore wind farms since October 2006 were refused and that the approval rate was only 33 per cent compared to the average approval rate of 76 per cent.

It is not just the applications and appeals process that is proving troublesome. Objectors to alternative energy schemes have been active in the courts. In February a planning approval for a wind farm in Norfolk won on appeal was quashed by the High Court following a challenge by a neighbour '“ Hoare v Secretary of State for Communities and Local Government [2006] EWHC. More recently there was an unsuccessful challenge to the secretary of state for Trade and Industry's decision to grant a consent under section 36 of the Electricity Act 1989 in R (on the application of Merricks) v Secretary of State for Trade & Industry and NPower Renewables [2006] EWHC 2698.

That case involved a consideration of the interplay between the consent procedure and domestic legislation flowing from the Habitats Directive (Council Directive 92/43). Other forms of alternative energy development have also been challenged in the courts. For example, in R v Hampshire County Council and others ex parte Vetterlein [2001] EWHC 560 an unsuccessful challenge was made to a proposal for an energy recovery facility and waste transfer station on the site of a former power station.

It would seem that the government is intent on streamlining the approval process for major infrastructure projects. In the recent White Paper a new three stage process is contemplated. This would involve:

• Ministers setting strategic objectives for national infrastructure development up front integrating economic, social and environmental goals;
• Promoters would then develop project proposals within a clear strategic framework, and subject to requirements to consult the public to ensure promoters are adequately prepared for the issues likely to arise; and
• Decisions on applications taken by an independent commission comprising well respected experts using more focused inquiry procedures that would provide more accessible opportunities for participation.

These proposals have already attracted a considerable amount of criticism. The fear is that, despite the flowery wording, the public will be marginalised by the whole process.

It is possible, therefore, that the opposition that these projects frequently attract will shift forum from the inquiry to the courts. One obvious area for challenge would seem to be the consultation process. As already witness this year, the High Court has not shied away from striking down inadequate consultation documents '“ see R (Greenpeace Ltd) v Secretary of State for Trade & Industry [2007] EWHC 311 discussed at Solicitors Journal 20.04.07 at page 496.

Possibly more worrying than the prospect of a flurry of litigation is the possibility, already discussed in parts of the press, that some of these major infrastructure projects could attract the attention of the so-called eco-warriors who, as the recent protests in Germany at the G8 summit have shown, are prepared to resort to direct action to frustrate development.

Whatever may be the rights and wrongs of nuclear power, new nuclear power plants are obvious candidates for such action. It is to be hoped that our politicians will pause for thought and reflection rather than pressing on with legislation to establish the independent commission.

After all, it did pass section 44 of the Planning and Compulsory Purchase Act 2004 as a means of speeding up the handling of major infrastructure projects. These provision should be given time to see if they work. Maybe the government would be better advised to rely on section 44 and to work with the lawyers involved in the planning inquiry.

For all its failings the planning inquiry does provide a valuable forum for public debate. Whilst the politicians often cite the Heathrow Terminal 5 inquiry as justification for the new proposals they consistently ignore the fact that there was no serious legal challenge to the inspector's report. Proof, if proof were needed, that the existing system might not be so bad after all.