Directorate for Planning and Environmental Appeals Report to the Scottish Ministers SECTION 36 OF THE ELECTRICITY ACT 1989 AND SECTION 57 OF THE TOWN AND COUNTRY PLANNING (SCOTLAND) ACT 1997 Report by Lindsey Nicoll and Scott M Ferrie, reporters appointed by the Scottish Ministers Case reference: WIN-270-1 Site Address: land 1137 metres south of Creag Leathan, Limekiln Estate, Reay, Caithness Application by Infinergy Limited Application for consent (S36 Electricity Act 1989) and deemed planning permission (S57 Town and Country Planning (Scotland) Act 1997) The development proposed: construction and operation of Limekiln Wind Farm Dates of inquiry/ hearing sessions: 25-28 August 2014 Date of this report and recommendation: 20 February 2015 4 The Courtyard, Callendar Business Park, Falkirk, FK1 1XR DX 557005 Falkirk www.scotland.gov.uk/Topics/Planning/Appeals abcdefghij abcde abc a CONTENTS Page Summary Report 3 Preamble 16 Abbreviations used in the report 17 Chapters 1. Background 18 2. Policy context 22 3. Landscape and visual impact 28 4. Impact on wild land 46 5. Local amenity impacts 64 6. Impact on ecology 66 7. Impact on forestry 84 8. Hydrology and hydrogeology 87 9. Climate change, carbon balance and peat management 89 10. Other relevant issues 94 11. Proposed conditions 102 12. Overall conclusions and recommendations 107 Appendices [attached as separate documents] Appendix 1: Note of pre-examination meeting Appendix 2: Schedule of documents Appendix 3: Appearances Appendix 4: Statement of common understanding Appendix 5: LVIA inquiry session: a. inquiry statements b. precognitions Appendix 6: Wild land inquiry session: a. inquiry statements b. precognitions c. exchange of submissions on competency of THC wild land objection d. applicant’s emails regarding further visualisations Limekiln wind farm report 1 Appendix 7: Planning and energy policy hearing session: a. hearing statements Appendix 8: Conditions hearing session: a. hearing statements b. proposed conditions c. Local Economic Benefit Scheme (APP-R2) d. Mr Young’s submission on the Local Economic Benefit Scheme Appendix 9: Further written submissions: a. representations made regarding Further Environmental Information (April 2014) b. representations made regarding Further Environmental Information (July 2014) c. further written submissions by the parties on (i) ornithology (ii) forestry (iii) hydrology and hydrogeology (iv) carbon balance and peat management Appendix 10: Closing submissions Appendix 11: Proposed conditions Appendix 12: Participants in evening session on local amenity impacts; statements submitted Limekiln wind farm report 2 Directorate for Planning and Environmental Appeals Summary of Report of Inquiry into application under section 36 of the Electricity Act 1989 and deemed application for planning permission under section 57 of the Town and Country Planning (Scotland) Act 1997 (as amended) The construction and operation of Limekiln Wind Farm at land 1137 metres south of Creag Leathan, Limekiln Estate, Reay, Caithness Case reference WIN-270-1 Case type Application for consent (S36 Electricity Act 1989) and deemed planning permission (S57 Town and Country Planning (Scotland) Act 1997) Reporters Lindsey Nicoll and Scott M Ferrie Applicant Infinergy Limited Planning authority The Highland Council Other parties Scottish Natural Heritage; Reay Area Windfarm Opposition Group; John Muir Trust; Mr Webster; and Mr Young Date of application December 2012 Date case received by DPEA 29 November 2013 Method of consideration and date Inquiry sessions 25-28 August 2014 Hearing sessions 28 August 2014 Date of report 20 February 2015 Reporter’s recommendation Refuse S36 consent and deemed planning permission The Site: The application site is located about 1.5 kilometres to the south of the village of Reay, in Caithness. The site extends to approximately 1,140 hectares and largely comprises a commercial plantation of coniferous woodland. The site is bounded to the north by undulating moorland and semi-improved agricultural land with Reay village and dispersed settlement beyond. To the east lies further coniferous woodland. The land to the west and south is largely open moorland. The locally prominent Beinn Ratha is located about 1.2 kilometres to the west of the site boundary. Description of the Development: The proposed development would have a potential generating capacity of 75 MW. The main components of the proposed development are: 24 wind turbines (15 with a maximum blade tip height of 139 metres; and 9 with a maximum blade tip height of 126 metres) and turbine foundations; 2 borrow pits; new vehicular access from the A836 at Bridge of Isauld; hardstanding areas including crane pads; new and upgraded on-site access tracks (approximately 19.4 kilometres); watercourse and service crossings; temporary works Limekiln wind farm report 3 including construction compound; and control building and sub-station (if required) and cabling within the site. Consultations and Representations: Scottish Natural Heritage (SNH), although not objecting, advised that the proposed development would “result in a range of significant adverse landscape and visual impacts, some of which are capable of mitigation”. SNH subsequently led evidence at the inquiry at our request, based on the wild land impacts of the proposal. The Scottish Environment Protection Agency (SEPA) withdrew its initial objection, subject to mitigation on a range of matters. Marine Scotland did not object to the proposal, subject to conditions. Halcrow undertook a Peatslide Hazard and Risk Assessment of the proposal on behalf of ECDU and advised that the available information did not provide a sufficiently robust assessment of the peat landslide risk. Caithness West Community Council objected to the proposal based on landscape and visual impacts, community impact and cumulative impact. The Reay Area Wind Farm Opposition Group made representations on a range of local impacts which would arise from the proposal. Although the John Muir Trust did not initially object to the application it changed its position to one of objection on publication of SPP and the SNH mapping of wild land. RSPB did not initially object, but before the inquiry lodged an objection in regard to impacts on golden eagle. A range of other consultees either had no objection, or no objection subject to conditions. 566 letters of objection were received. The grounds of objection include: adverse landscape and visual impact, including cumulative impact; impact on the setting of Reay; adverse impact on wildlife and habitats; traffic impacts; shadow flicker; noise impacts; adverse health impacts; adverse tourism impacts; cultural heritage impacts; recreational impacts; impacts on peatland; carbon balance; adverse economic impact; inadequate Environmental Statement; and alternative technologies available/ necessity/ impact on bills and fuel poverty/ impact on property values. 17 letters of support were received. The grounds of support include: reduction in carbon emissions; achievement of local and national energy targets; local economic impacts; no/ few adverse impacts; and community benefits. The Highland Council objected to the proposal for the following reason: The application is contrary to the Highland wide Local Development Plan (Policy 67) in that there would be a significant detrimental impact on the visual amenity and landscape character of the area. This is due to: the size of the turbines and the effect upon the village of Reay and the wider area; the cumulative impact on the area when considered along with Forss I and II and Baillie wind farms; the impact on the A836 tourist route between Thurso and Tongue; and the effect on the Caithness Lochs SPA. The council later clarified that, following further consideration of the position of SNH, it withdrew reference to the effect on the Caithness Lochs SPA. The council did, however, pursue at the inquiry an additional line of objection based on the wild land impacts of the proposal. Limekiln wind farm report 4 The Cases for the Parties: Policy context The applicant submits that the proposal is appropriately sited, would provide a valuable contribution towards renewable energy targets, and draws clear support from national energy and planning policy and from the development plan. The council submits that the importance of national energy policy to consideration of this proposal is not in dispute, but there is no indication in any of those policies of a diminution of protection for the environment. Due to its significant adverse landscape and visual effects the proposal is contrary to the up-to-date development plan. It would not, therefore, contribute to sustainable development. The Reay Area Windfarm Opposition Group argues that the benefits of the proposal are outweighed by adverse landscape and visual impacts and the proposal is, therefore, contrary to the development plan. Landscape and visual impact The applicant contends that: the site is located within a modified landscape with capacity to absorb a wind farm of the size and scale proposed. Through careful choice of the site and turbine layout design, significant effects have been minimised on surrounding communities. No part of the site is subject to any form of statutory or non-statutory landscape planning designation. The number of residential properties that would experience significant visual effects is small and no residential properties would experience overbearing or dominant effects. The visual effects on