![Sample our Environment & Sustainability journals, sign in here to start your access, latest two full volumes FREE to you for 14 days]({"type":"image" , "src" : "/sda/5935/TOC-Subject-Sample-2021-Environment-Sustainability.jpg"})
Abstract
This article is concerned with public participation and its linkages with appeal rights in planning decisions for major onshore wind farms in England and Denmark. We are particularly interested in how the legal framework shapes the scope of participation and appeals and, more specifically, whether a third party right to appeal (TPRA) has a participatory potential beyond the initial decision-making process. Despite structural differences, our analysis shows that in both countries the legal frameworks limit the participatory potential of administrative appeals, either through a restricted third party access to appeal mechanisms or through a restricted scope of review in appeals. Even where access is unrestricted, TPRA can hardly constitute an extension of participation, unless the scope for review is equally extended. Thus, reliance on TPRA as a participatory tool would require changes to the legal framework in both jurisdictions.
Acknowledgements
This paper has been elaborated as part of the Danish Wind2050 multidisciplinary research project on local acceptance and development of wind power projects. The research has been funded by Innovation Fund Denmark (Innovationsfonden), see further information at http://www.wind2050.dk/. We are grateful to Maria Lee (University College London) for her helpful comments on an earlier draft of this paper.
Notes
1 Cf. with a similar debate on whether tort law provides assertion of rights or participation in decision-making. See Steele Citation1995, 239–242.
2 See C-418/04 Ireland, [2007] I-10947, para. 231 (comparing the EIA and SEA Directives with the Habitats Directive) and C-420/11 Leth, [2013] 166, para. 41.
3 E.g. C-72/12 Altrip [2013] 712 where the CJEU stated that the Member States “may not make it in practice impossible or excessively difficult to exercise the rights” conferred by the EIA Directive with particular reference to the rights to participate in decision-making (para. 45)
4 E.g. C-570/13 Gruber [2015] 231 where the Court ruled that precluding neighbours from bringing an action against an administrative decision not to undertake an EIA was not in accordance with Art. 11 of the EIA Directive (para. 51). The CJEU, however, (somewhat contradictorily) noted that any national criteria concerning “sufficient interest” or “impairment of a right” should be fulfilled. See also C-72/12 Altrip where it should be taken into account whether the public concerned had been deprived “of one of the guarantees introduced with a view to allowing that public to have access to information and to be empowered to participate in decision-making” (para. 57).
5 In 2017, the wind energy share of electricity production was 43.24%, while the national 2020 target is a 50% wind energy share of electricity production.
6 For onshore wind turbines above 150 meters, the decision-making powers rest with the Ministry for Environment and Food. Most wind turbines in Denmark have so far been below 150 m and decided by the local authorities. Projects may also be adopted by a separate act of Parliament, e.g. Act no. 647/2010 on a test site for large wind turbines at Østerild.
7 In accordance with the polices set out in the National Planning Policy Framework and following the procedure set out in the Town and Country Planning Act 1990 and the Town and Country Planning (Development Management Procedure) (England) Order 2010 (SI 2010/2184). Prior to this amendment, large-scale onshore wind energy infrastructure above 50 MW of electricity generating capacity were considered Nationally Significant Infrastructure Projects (NSIPs) under the Planning Act 2008 and required a development consent order (DCO) from the Secretary of State, following an examination and recommendations by the Planning Inspectorate.
8 Consolidated Act no. 287/2018 on planning (lovbekendtgørelse 287/2018 af lov om planlaegning).
9 Statutory Order no. 1590/2014 on planning for wind turbines (bekendtgørelse nr. 1590/2014 om planlaegning for og landzonetilladelse til opstilling af vindmøller).
10 It is, however, possible to adopt a municipal plan supplement that designates the site at the same time as the local plan is adopted.
11 Act no. 426/2016 on environmental assessment of plans and programmes and projects (lov om miljøvurdering af planer og programmer og af konkrete projekter).
12 Town and Country Planning (General Permitted Development) (England) Order 2015 (No. 2015/ 596).
13 The Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (Schedule 2).
14 Town and Country Planning (Environmental Impact Assessment) Regulations 2017.
15 Id. Regulation 18 (3) and 18(4).
16 Town and Country Planning (Development Management Procedure and Section 62A Applications (England) (Amendment) Order 2013 (Si 2932).
17 Town and Country Planning Act 1990, Section 61 W.
18 Ibid.
19 These are individuals or groups with a special interest whose consultation is not required by law, but is justified by reasons of planning policy.
20 This dates back to the establishment of a Nature Conservation Appeals Board in 1917 and an Environmental Appeals Board in 1974. Within planning law, a new Nature Appeals Board in 1992 replaced the former Planning Agency (Planstyrelsen) as the administrative appeals authority within the Planning Act. Since February 2017 a separate Planning Appeals Board has been established alongside a new Environment and Food Appeals Board.
21 Based on the recorded cases at the website of the Nature and Environment Appeals Board, http://www.nmknafgoerelser.dk/.
22 Natur- og Miljøklagenaevnet (Ulvemose-Baekhede), 14 December 2014 (j.nr. NMK-33-02171, NMK-34-00318, NMK-34-00365, NMK-41-00264), Natur- og Miljøklagenaevnet (Skaføgaard), 2 December 2013 (j.nr. NMK-33-01230, NMK-34-00182, NMK-34-00216, NMK-41-00200), Natur- og Miljøklagenaevnet (Sindrup Vejle), 17 June 2013 (j. nr. NMK33-01158 NMK-34-00168).
23 Natur-og Miljøklagenaevnet (Ulvemose-Baekhede), 27. May 2016 (j.nr. NMK-33-03235, NMK-34-00522, NMK-41-00348).
24 However, the majority of the planning appeals are decided by the Planning Inspector, to which jurisdiction has been transferred by subsequent legislation, except for large or contentious projects for which appeal jurisdiction can be recovered by the Secretary of State in specific cases at any stage of the appeal (“recovered appeals”). (See Section 79 of, and paragraph 3 to Schedule 6 to, the Town and Country Planning Act 1990).
25 In 2015, it was reported that, since 2009, 23 out of 158 local plans for wind energy projects were not adopted, https://energiwatch.dk/Energinyt/Renewables/article7969114.ece. In England, only two NSIPs out of 12 have been refused consent as of June 2018.