HENDY WIND FARM: APPEAL RE LEGAL CHALLENGE TO MINISTER’S APPROVAL
Update May 2019
Timeline of events to date:
- May 2017: Planning application for the Hendy Wind Farm is rejected by Powys County Council, on grounds of unacceptable impacts on landscape, users of the rights of way and open access land, and on the scheduled historic monuments surrounding the site. See Powys Council Decision Notice.
- March 2018: Following the developer’s appeal against refusal a Public Inquiry is held. The Inspector’s report, which is decisive in recommending refusal of the appeal, is submitted to the Welsh Government to inform a final decision by the Welsh Ministers. See Hendy Wind Farm: Inspector’s Decision May 2018 & Addendum Report – Appropriate Assessment & archived page: Hendy Windfarm Decision March 2018.
- 25th October 2018: Lesley Griffiths, Minister for the Environment, approves the Hendy Wind Farm development. See Hendy Wind Farm Limited – Welsh Ministers decision letter & archived page: Hendy Windfarm Decision October 2018.
- CPRW Challenge to the Minister’s decision: CPRW Brecon & Radnor branch has challenged the Minister’s decision. To date permission to have the challenge heard at all has been refused by two High Court judges: Justice Clive Lewis, who has held the post of First Counsel to Welsh Government, and Sir Wyn Williams, retired High Court Judge and President of the Welsh Tribunals, a post created by the Wales Act 2017 and the first senior judicial role relating solely to Wales. We are grateful to our legal team for the opportunity to challenge the refusal.
- Construction: Construction of the wind farm began immediately following the Minister’s decision, departing from the approved access arrangements and site plans and despite the failure to discharge any of the pre-commencement planning conditions. This haste permitted the completion of the first turbine, Turbine 5, before 31st January 2019, date of closure of the final ‘grace period’ for Renewables Obligations subsidies.
- Discharge of pre-commencement conditions: We are now assured by Powys Council planning that no further construction work will take place until all pre-commencement conditions have been discharged. At the end of March 2019 no conditions had been discharged, no permission has been obtained for works on Llandegley Rhos common and the developer has not yet submitted details of the proposed access arrangements. However, in early April Powys planning officers have, under delegated powers, and without presenting Officer’s Reports to the Planning Committee for its approval, discharged several of the pre-commencement conditions. Among the conditions discharged were Condition 29, concerning routes to be taken by construction vehicles, and Condition 26, concerning liability to repair of road damage around access points from the A44. Discharge of these conditions applies to the whole development project. Since the developer has not stuck to the approved plans so far and has not yet stated what routes or access points from the A44 will be used for the remainder of the development, we do not consider that discharge of these conditions was appropriate.
Enforcement of planning breaches – lack of:
CPRW Brecon & Radnor shares the dismay of local residents at Powys Council’s failure to enforce against Hendy Wind Farm’s multiple planning breaches. Government guidance requires that a decision on enforcement should consider the impacts of unlawful works on public amenity. On 6th December Powys planners issued a statement (LINK) setting out the reasons for which it was not judged ‘expedient’ to issue enforcement proceedings. In brief, these were that:
- there was no evidence of unacceptable harm,
- works on site appeared to be ‘in accordance with the information that has been submitted by the developer to discharge the conditions that they are currently breaching’. (Note that the statement itself includes an admission that consultees had concerns about this information.)
Planning law requires discharge of all pre-commencement planning conditions before any construction work on site begins. Pre-commencement conditions for Hendy Wind Farm include the requirements to obtain necessary permissions from the Inspectorate for works on the Llandegley Rhos common, and to agree site management protocols to govern construction practices and to ensure the protection of the environment, wildlife and public amenity.
Construction is also governed by the condition requiring the developer to adhere to the approved site plans for which impacts have been assessed and for which permission has been given. Neither the construction compound nor the access track to Turbine 5 conform to agreed plans, nor does the access onto the Llandegley Rhos common for long vehicles carrying turbine parts. This access has been particularly controversial. The developer has not used the approved access via the BOAT across the southern end of the common, and did not proceed with a plan (tucked away in the application papers for discharge of Condition 31) to annex a corner of the registered common land near the northern gate to create a turning space. Instead an access route was created across a field adjacent to the common. No planning permission was sought, protected hedgerows were removed without permission, and without the opportunity for an assessment by Powys ecologists. Meanwhile, the Case Officer confirmed on 5th April that the developer is still considering access options for continuing construction works.
Work on access spurs to all turbines, and crane pads and foundations for Turbine 4, due to have begun in February and been completed in early April, has not begun. As yet, there have been none of the promised community liaison meetings to explain what is happening. The only such meeting ever held took place in 2014.
Update February 2019:
The Developer’s plan to construct Turbine 5, in advance of the other 6, so that it could be commissioned by the last day of OFGEM’s Renewables Obligation Certificate grace period (31/1/19) was only revealed when construction began in November. Construction progressed at breakneck speed, often at night, without discharge of any of the pre-commencement conditions or permission for works on Common Land. The access arrangements used are outside the planning permission granted.
Powys CC maintained throughout that they were “monitoring construction”. They agreed construction was in breach of planning conditions but claimed that it was not “expedient” to enforce against the Developer. CPRW Brecon & Radnor branch obtained a temporary injunction against concrete pouring, but this was lifted in court when the Developer argued the urgent need to get accreditation for subsidies for the 7-turbine wind farm and produced a letter from NRW stating that concrete pouring would not cause significant harm. Groups of protesters exercising their rights to walk on common land have been met by a sizeable, and sometimes threatening, private security force and numerous police.
Turbine 5 is now built and the second construction phase is due to start without any clear undertaking about what access will be constructed.
It has been extremely disappointing to witness the Developer being able to flout the environmental safeguards contained in the planning conditions and to construct without permission thus making a mockery of the entire planning system. This project continues to raise serious doubts about the integrity of the Welsh Planning System.
With the generous help from CPRW members and the wider public, BRB-CPRW is continuing the battle and has requested a Permission Hearing to pursue the challenge to Lesley Griffiths’ decision and issued a Pre–Action letter to Powys about their failure to control development. The Committee submitted objections to the Developer’s applications to discharge the pre-commencement conditions.
Enforcement update: On 6th December Powys Planning Officer Holly-Ann Hobbs wrote to residents this update on the Council’s enforcement investigation. This is deeply dismaying, not only because of the environmental vandalism which is taking place now at Llandegley, but also because of the disastrous precedent Powys is creating. CPRW Brecon & Radnor branch have taken legal advice and will be guided by counsel in responding to this extraordinary situation.
Since residents first advised Powys Development Management that work had begun on the foundation for turbine 5 on 27th November, the development has moved on at pace. Piles have been delivered to site on 6th December. The site of the turbine is close to the headwaters of the River Edw, which a little downstream is designated as a Special Area of Conservation, and merits the highest standard of protection. The construction works on site are currently entirely ungoverned by any agreed site management plans for the protection of the environment and its ecology.
CPRW Brecon & Radnor Branch, with CPRW national support, has engaged a barrister to help challenge Leslie Griffiths’ decision to allow Hendy Wind Farm.
The proposed Hendy wind farm sits in a beautiful and much loved historic landscape which we and so many others have been fighting to protect from inappropriate development. At the same time, the precedent the Minister’s decision creates is so important to the future of rural Wales we decided there was no real choice but to bring a legal challenge.
Hendy Wind Farm was refused by Powys Planning Committee in May 2017. Following the applicant’s appeal, the Inspector conducted an Inquiry lasting two weeks in March 2018, during which he studied the (ever changing) development plans, visited the site several times, and heard the evidence and cross examination of expert witnesses and of local residents. Based on all this evidence, the Inspector’s lengthy and considered report recommended refusal of the wind farm on the grounds that ‘the combined harm to landscape and heritage matters significantly outweigh the identified benefits’. In arriving at this conclusion the Inspector had taken into account the benefit of providing renewable energy and the requirements of the Well-Being of Future Generations Act.
Never before this decision by Lesley Griffiths, has a Welsh Government Minister overturned a wind farm recommendation by the Planning Inspectorate on the grounds that the national interest in providing wind energy outweighs significant landscape harm and damage to heritage assets. The argument that renewable energy can automatically outweigh any harmful impacts of a development defeats the purpose of a planning system which seeks to achieve a balance of planning considerations, and development at an appropriate scale in appropriate locations.
If this decision stands, it will be an important test case that will make it very difficult to protect any Welsh landscapes outside the National Parks and Areas of Outstanding Natural Beauty.
How you can help:
- Contribute to our appeal for funds
- Submit your objections to applications to discharge planning conditions to Powys County Council
- It is extremely important to record the arrival of any construction vehicles and any construction activity taking place on the Llandegley Rhos Common or on the wind farm site to the west of the common and report this immediately to us and to Gwilym Davies, Planning Lead at Powys County Council (firstname.lastname@example.org).
Appeal Account Details: EVERY LITTLE HELPS!
B&R Branch CPRW AC 29455868 Lloyds Bank SC 30-94-99
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OBJECT TO THE APPLICATIONS TO DISCHARGE PLANNING CONDITIONS:
You will find the applications to discharge planning conditions on this LINK . Type Llandegley in the search box (towards the bottom of the page).
At the time of writing, applications have been submitted to discharge the following conditions:
- Condition 9: micrositing
- Conditions 10,14,15: turbine design
- Condition 21: Construction Environmental Management Plan
- Condition 23: hydrology – Surface Water Management Plan (and supporting document here)
- Condition 24: hydrology – water quality monitoring strategy
- Condition 25: public rights of way
- Condition 26: highways – remediation of incidental damage
- Conditions 27, 32 & 35: highways and traffic movements
- Condition 28: abnormal indivisible loads – AIL Traffic Management Plan
- Condition 29: Construction Traffic Management Plan
- Condition 30: rights of access
- Condition 31: highway works
- Condition 38: Protected Species Protection Plan
- Condition 39: Bat Protection Plan
- Condition 40: Habitat Management and Enhancement Plan
- Condition 41: Ecological Monitoring Plan
- Condition 42: Archaeology Written Scheme of Investigation
- Condition 44: Archaeologist
- Condition 46: TV interference
- Condition 48: community liaison
- Condition 51: noise
And application has been made to vary Condition 43 – historic environment scheme of works
You may find the documents and information supplied in some of these applications inadequate or inappropriate to satisfy the conditions which you will find at the end of the Minister’s decision letter.