Cllr Donald Manford, SNP
Eoligarry, Isle of Barra.
Cllr Angus Campbell
Leader, CnES
Stornoway, Isle of Lewis
7th June 2014
Dear Angus
JUDICIAL REVIEW OF WIND TURBINE CONSENTS AND CALL IN OF WIND TURBINE APPLICATIONS
As you are readily aware three planning consents issued by the Comhairle are the subject of judicial review instigated by the Ministry of Defence. Three other applications have been called in by Scottish Ministers, again, at the instigation of the Ministry of Defence.
In relation to the judicial reviews, the petitions lodged with the Court of Session are predicated upon the fact that the Environment and Protective Services Committee decided on the 3rd September 2013 to defer consideration of the applications because it did not consider that it had a full understanding of the technical reasons why the MoD was maintaining its objections. The Committee requested the Director of Development to seek a meeting between representatives of the MoD to obtain further information regarding the basis for the MoD objection. No meeting took place and the petitions assert that the subsequent decision of the Committee to approve the applications was ultra vires because it was irrational as Elected Members had not received any additional information from the MoD from that available to them on the 3rd September 2013.
Earlier this year and after the petitions for judicial review were served we were advised by our Chief Executive that the Planning Authority had no case to argue and that we should not attempt to support our decisions in the Court of Session. From memory this guidance was predicated upon the fact that no new information had come before Elected Members as stated in the petitions.
I have now received correspondence from one of my constituents whose planning consent is the subject of judicial review bringing to my attention a sequence of pertinent events and associated information that should have been made available to all Elected Members before any decision was taken in relation to whether the Comhairle should participate in the Court of Session actions. Additionally a wealth of detailed information has now been made available in relation to the
MoD's actions in respect of the NUDC wind turbine application and Bornish, South Uist. Having verified the accuracy of the relevant information the MoD's actions over the past 18 months have been, at best, disingenuous and riddled with inconsistencies.
Your administration has clearly failed to get on top of this vexatious issue and as a consequence the interests of many of our residents have been needlessly compromised and quite significantly in the case of the North Uist Development Company whose loss even if Scottish Ministers grant consent will still be of the order of £1,300,000.
If you cast your mind back to the 28th August 2013 you participated in a discussion with the DIO representatives and members of our development management service in relation to the MoD's objection to the NUDC proposal. The note to that meeting advises that the issue of a radar based mitigation was not an option because there were no immediate plans to upgrade the Benbecula Air Defence Radar. We now know that this statement was false or misleading given that within eight weeks of the date of this discussion a contract for the replacement of the Benbecula AD Radar with a Lockheed Martin TPS-77 wind turbine friendly radar had been signed by the MoD. The new radar will be operational in mid 2015.
One of the issues of serious concern was the issuance of a revised statutory safeguarding map for the Benbecula Air Defence radar during the course of consideration of the NUDC application. The revised map greatly extended the safeguarded area to an extent which included the locations of the NUDC turbines. It is now apparent that during the course of a meeting between Robert Fraser, Chair of NUDC, and senior MoD officers on the 10 January 2013 the new safeguarding map was mentioned within the context that it had a 5 nautical mile, (9.26 km), radius. The proposed turbine locations are between 9.2 and 9.3 km from the Benbecula AD Radar and that point was raised by Robert Fraser during the meeting together with a request for the MoD to reconsider their opposition to the proposal. On the same day in the map room of the DIO in Sutton Coldfield the safeguarded map for RAF Benbecula was revised to increase the radius of
the safeguarded area to 10 km. The map was not immediately issued so there was no urgent national defence issue which required an greatly enhanced safeguarded area around the radar installation. Issuance of the map only took place after you had notified the MoD that the NUDC application had been received.
It is apparent that officers became aware of the sequence of events relating to the revised safeguarding map and advised the DIO on the 21st October 2013 that one of the issues which Members would wish to discuss with the DIO at the imminent anticipated meeting was the technical rationale behind the need to increase the safeguarded area given that that action effectively triggered the need for the Comhairle to notify Scottish Ministers in the event that Members were minded to approve the application against the officer recommendation.
The anticipated meeting never took place despite the DIO being pushed for a response to the reasons for the increase in the safeguarding area. A technical explanation was requested and received before the 19th Novembermeeting when the Committee expressed an intention to approve the NUDC application along with other turbine applications that had been the subject of MoD objections. The Minute of that meeting makes reference to two other late representations received on the 18th November but no reference is seen to the DIO's further information. The petitions for judicial review are therefore founded upon a falsehood as the Development Management service had receipt of additional information after the initial decision was taken to defer the applications. Why is the existence of this information not disclosed in the Minute of the Meeting and why was it not relevant in the consideration of the position that the
Comhairle should adopt when the MoD lodged the petitions for judicial review early in 2014?
As noted above, the increase in the safeguarded area around the Benbecula Air Defence Radar required the Comhairle to notify Scottish Ministers of the intention to approve the application. In relation to the information received from the DIO in justification for increasing the safeguarded area prior to the 19th November 2013 Committee meeting it is stated that a review of air defence safeguarding criteria was conducted in 2012. This review included the Minimum Instrumented Range which is generally taken to be 5 nautical miles. Within this Main Instrumented Range wind turbines cannot be detected and will not appear on the radar operator's screen but they will physically disrupt the transmission and reception of the radar signals. This would compromise the capability of Air Defence staff to detect threats to the UK airspace. This explanation is not entirely consistent with earlier statements from the MoD.
Previously, the record shows that the NUDC proposal was subjected to a rigorous two stage assessment and it is only where that assessment concludes that the operation of the radar will be compromised to an unacceptable level will the
MoD formally object to the proposal. We have reference now to an additional operational review of the safeguarding criteria which underpins the early stated opposition of the MoD to this proposal.
The call in procedure formally commenced on the 25th November 2013. On the 9th December 2013 the MoD withdrew their objection to the NUDC proposal in respect of the unacceptable impact the turbines would have on the operation of the Benbecula AD Radar. If the Committee had been aware of that fact 21 days earlier the consent could have been issued by the Committee without prior notification to Scottish Ministers. The NUDC would then have been able to apply for the then available feed in tariff and avoid a loss to the community of North Uist of £1,300,000.
This significant and unexpected change in the MoD's position was made known to your administration on the 7th January 2014. The DIO confirmed that position on the 24 January 2014 and advised that following further consideration of many factors, (physical and technical), it was decided that the impact will be less than originally anticipated and will be managed. There is still no mention of the replacement radar. The DIO maintained opposition to the NUDC proposal in respect of unacceptable impacts on St Kilda and South Uist Range Radars.
These circumstances which all occurred between 18th November 2013 and 7th January 2014 merely confirm that we were completely correct in the position we adopted as a planning authority in August when consideration of the applications was deferred and equally correct when we moved to approve them in November.
There are three consents subject to judicial review in South Uist all on the basis of unacceptable impacts on the Benbecula AD radar. One consent at 11 Bornish was initially also subject to an objection relating to unacceptable impacts on the South Uist Range radar which was subsequently withdrawn. The reasons given by the MoD for this change of position include Flybe having terminated the Barra to Benbecula service, that fish farm helicopter movements having been reviewed and found to have been reduced and that as a consequence the overall level of clutter would be manageable along with the existing clutter from turbines and road traffic. None of these factors are any way whatsoever in the control of the MoD but it is revealing that these turbines generate radar signatures that cannot be distinguished from road traffic.
All of these proposals which have become bogged down by the MoD's intervention are classed as local developments. As a planning authority we are supposed to be able to process this type of application from validation to issuance of decision within the statutory time period of two months. The applications under call in and the consent under judicial review have been in the system for upwards of a year. We, as the Planning Authority, are required by The Town and Country Planning (Development Management Procedure) (Scotland) Regulations 2013 to consult in accordance with those regulations and any direction given under regulation 30. In the case of the MoD the direction in question is the Town and Country Planning (Safeguarded aerodromes, technical sites and military explosives storage areas) (Scotland) Direction 2003. Had your administration followed the regulations regarding consultation then none of the six applications currently being challenged by the MoD would have required to be the subject of any consultation with the MoD.
With applicants and their agents becoming more aware of the actual procedure which we should be following as a Planning Authority it is becoming increasingly difficult to respond with any credibility to the increasing number of complaints regarding council performance. One of our primary objectives is to contribute through every decision, towards sustainable economic growth. We surely need that economic growth perhaps more in this part of Scotland than elsewhere.
Our renewable energy strategy is entirely focused on the delivery of the interconnector which is now set back until 2019 at the earliest if indeed it happens at all. We have community renewable energy projects which potentially benefit our constituents substantially over the next twenty five years. We have community buy out proposals which can only be aided by the availability of community renewable energy projects and yet we have a development management attitude which is geared to maximising the difficulty of securing consents. We are suffering as a consequence of our inability to accommodate modest off grid proposals despite their considerable local economic benefits.
My constituent has requested that the Comhairle reconsiders its' position in relation to participating in the Court of Session actions raised by the MoD to provide support for our residents interests. It may well be far too late for any change in position to be acceptable to the Court of Session. We do, however, need to tackle the underlying issue urgently by referring the matter to the Audit and Scrutiny Committee with a simple remit of identifying all impediments within current development management procedures which individually and cumulatively conspire to inhibit our ability as a Planning Authority to consent wind energy developments and, thereafter, to remove those impediments which are not supported by regulation or statute.
A cross party consensus is essential given the scale of the problem and the damage it is doing to our community. I trust that you and all of our colleagues will come together and bring about an early and satisfactory resolution to this matter.
Yours sincerely
Donald Manford.
