Onshore wind policy in England is facing a legal challenge as the UK government’s decision to exclude onshore wind projects from the types of energy infrastructure projects that can generally be considered as ‘nationally significant infrastructure projects’ (NSIPs) under planning policy applicable in England is being contested.
The Good Law Project, a campaign group, has expressed its belief that the decision is ‘unlawful’ and has written to the government outlining its intention to seek a judicial review of the decision unless the ‘exclusion is immediately withdrawn’ and onshore wind reinstated into the recently revised national policy statements (NPS) for energy infrastructure that came into force earlier this month.
NSIPs are subject to a different consenting regime to other projects in England. A development consent order needs to be obtained from the secretary of state for those projects to go ahead. The NPS for energy infrastructure sets out the need case for relevant infrastructure and provides the basis on which applications for development consent for those projects are assessed.
The government began consulting on changes to the previous NPS for energy infrastructure in September 2021. Finalized policies were designated last year, and the new policies came into force on 17 January 2024. While the revised policies strengthen the need case for a range of different energy infrastructure, onshore wind development is specifically excluded from the scope of the NSIP consenting regime except in cases where the secretary of state directs otherwise on the basis of a so-called ‘section 35’ application by a developer.
The Good Law Project has outlined its grounds for seeking a potential judicial review in its letter to the government. It believes, among other things, that the government has acted unlawfully due to a failure to give reasons for how the continued exclusion of onshore wind takes account of its own policy concerning the mitigation of, and adaptation to, climate change. It further accused the government of failing to lawfully take account of recommendations made by the National Infrastructure Commission last year, which advocated that onshore wind be included within the scope of the NSIP.
Gary McGovern, a partner, expressed concerns over the lengthy process of getting the new NPS for energy infrastructure in place, stating, ‘It has already taken more than two years from first publication of drafts to get the new NPS for energy infrastructure in place. That is far too long. Given the urgent priorities of energy security and net zero, it is critical to have an up-to-date suite of policies in place.’
The legal challenge to the onshore wind policy in England reflects the ongoing debates and actions surrounding energy infrastructure and climate change, as stakeholders continue to push for policies that align with the goals of energy security and environmental sustainability.
