HUNTERSTON NATIONAL OFFSHORE WIND TURBINE TEST FACILITY PLANNING APPEAL: STATEMENT OF APPEAL

Transcription

1 HUNTERSTON NATIONAL OFFSHORE WIND TURBINE TEST FACILITY PLANNING APPEAL: STATEMENT OF APPEAL Town and Country Planning (Scotland) Act 1997 (as amended) Town and Country Planning (Appeals) (Scotland) Regulations 2013 Appeal by JULY 2017

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3 Prepared By: 7 th Floor 145 St. Vincent Street Glasgow G2 5JF T +44 (0) l E info@arcusconsulting.co.uk w Registered in England & Wales No

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5 TABLE OF CONTENTS 1 INTRODUCTION AND BACKGROUND THE APPEAL SITE AND ITS SURROUNDINGS Site Description The Development Planning History Application Reference: N/11/00679/PPM Application Reference: N/14/00164/PPM Application Reference: 17/00034/PPM (Subject of the Appeal) Application Overview Reasons for the Application Application Determination SUMMARY OF KEY CONSULTEE RESPONSES AND CORRESPONDENCE CONSIDERATION OF THE APPLICATION AND THE ASSESSMENT APPROACH GROUNDS OF APPEAL Case for the Appeal Against Non-Determination Accordance with the Development Plan Grounds Associated with Noise Changes to Background Noise Levels Suggested Deficiencies in the Appellants Noise Assessment Links between the NOWTTF and Public Health Raised During Consultation Summary of Grounds of Appeal Associated with Noise MATERIAL CONSIDERATIONS Assessment against Material Considerations DETERMINATION OF APPEAL AND CONCLUSIONS July 2017 Page i

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7 1 INTRODUCTION AND BACKGROUND This planning appeal seeks to request a decision for the continued operation of the Hunterston National Offshore Wind Turbine Test Facility ( the NOWTTF ) on behalf of SSE Generation Ltd ( the Appellant ) on the grounds of non-determination. On 14 th February 2012 an application for the NOWTTF was approved by North Ayrshire Council ( the Council ) at planning committee, conditioned on the basis that the NOWTTF can operate for a five year period from the date of development commencement or until 14 th October 2017, whichever occurs earlier. In addition an application to vary conditions imposed on this permission was approved by the Council on 23 rd April 2014 ( the Consented Development ). The five year consent expires in October 2017, and in January 2017 a Section 42 Application ( the Section 42 Application ) was submitted to request an extension to the operational period for the consented development. An extension is required to fully complete the testing of the existing turbines and to support the wider offshore industry in Scotland. Application documents associated with these applications are submitted alongside this Statement of Appeal within productions XXX to XXX. The Section 42 Application was submitted to the Council on 13 th January 2017 with the statutory expiry date (the target date for determination of the planning application) set as 17 th May Following submission of the Section 42 Application, the Appellant and their team of advisors, who had prepared the application and supporting documentation for both the Consented Development and the Section 42 Application, engaged in dialogue with Council officials and statutory consultees. All representations were addressed by the Appellant and their team, and this was recognised by the Council s Planning Officers, who recommended the Section 42 Application for approval in advance of Planning Committee meetings on two separate occasions (8 th Mach 2017 and 14 th June 2017). At the Committee Meeting in March 2017, a decision was made to defer the application to allow a background noise survey to be carried out. Following this deferral the Section 42 Application was heard at the Planning Committee meeting held in June 2017, where it was again decided to defer the Application on the grounds relating to the background noise survey. The grounds for deferral are not material to determining the Section 42 Application; despite this the Appellant has sought to address queries raised in relation to the reassessment of background noise levels, notably to assess any changes in background noise levels since the Consented Development was determined. Whilst these surveys are ongoing (further information is presented in section of this Statement of Appeal) the Council have recommended the Section 42 Application for approval in advance of both the March and June Planning Committee meetings. No formal extension to the statutory determination period has been approved by the Appellant, and the Council has not given notice of its decision on the application within this prescribed period. To ensure the continued economic and regional benefits that arise from the NOWTTF for a further two years, and owing to the expiry date of the NOWTTF consent, the Appellant has been left with no choice but to lodge an appeal under the terms of Section 47(2)(a) of the Town and Country Planning (Scotland) Act 1997 ( the Act ). Under the terms set out within Section 47(5) of the Act, the Council is deemed to have refused the application. This planning appeal is requested on the grounds of non-determination of the Section 42 Application submitted in January This Statement of Appeal sets out the full particulars of the appeal, including an overview of the matters the Appellant considers need to be taken into account in determining the appeal and the procedures under which the Appellant wishes the appeal to be conducted, as required by Regulation 3 of the Town and Country Planning (Appeals) (Scotland) Regulations July 2017 Page 1

8 In addition this Statement of Appeal is supported by a comprehensive package of documentation which are referenced, where appropriate, throughout this Statement of Appeal and are submitted as productions. The supporting documentation details the Section 42 Application to-date, and is categorised as follows: Appellants Statement of Appeal; Section 42 Application and associated documentation, including the application as submitted and supporting information, including the Planning Statement, Environmental Statement Update and Socio-economics Analysis; Consented Application and associated documentation, including the Planning Statement, relevant supporting documents and consent of the two permissions that form the Consented Development; Correspondence which addresses the consideration of the Section 42 Application by the Council to-date, and copies of correspondence with statutory consultees; and Policy and guidance publications, including relevant policy documents and guidance against which the Section 42 Application is to be assessed against. Should any matters be raised by respondents to this Statement of Appeal, the Appellant reserves the right to respond to these representations. Furthermore to ensure the continued economic and regional benefits that arise from the NOWTTF, as detailed within this Statement of Appeal and within the supporting documentation, a prompt decision is kindly requested, to ensure that robust testing of offshore technologies can continue at the NOWTTF. 2 THE APPEAL SITE AND ITS SURROUNDINGS The Planning Statement and Environmental Statement Update describe the site and its surroundings in full, however a summary is provided in the sections below. 2.1 Site Description The NOWTTF is located on the marine construction yard within the Clydeport Hunterston Terminal Facility, and is approximately 2.5 kilometres ( km ) west of the centre of Fairlie ( the Site ). The Site offers a clear industrial past and present, and is considered a favourable location for an onshore wind turbine test facility owing to the ability to deliver turbine components directly to the Site via existing port facilities. Additionally this ease of access means that the Site offers unique advantages to test offshore turbines and conditions on land, allowing technicians to train without the logistical constraints offered by a turbine situated offshore. Indeed this is one of the main drivers for including the Site within National Planning Framework 3 ( NPF3 ), a material consideration that offers clear support to the Consented Development and the subsequent Section 42 Application. It should be noted that sites which facilitate offshore turbine testing are rare in Scotland and indeed across the UK, and an added advantage of the NOWTTF is that conditions at the Site replicate offshore conditions. Because of this the Site is recognised for offshore wind turbine testing in the Scottish Governments Draft Scottish Energy Strategy 2017, as well as other material considerations including Scotland s Offshore Wind Route Map and the National Renewables Infrastructure Map. Material considerations are assessed within Section 6 of this Statement of Appeal, and a full assessment is presented within the Planning Statement. The NOWTTF is a site of national importance, and opportunities for continual development and innovation are likely to occur beyond the proposed extension of the operational period requested by the Appellant. The Section 42 Application seeks an extension of the operational period to allow the Appellant to develop further options for the Site whilst ensuring it is safeguarded on a long-term basis. The Site may in the future host energy storage and new forms of technologies that will further support the Scottish energy industry, alongside the respective local and national economies. Page 2 July 2017

9 2.2 The Development Two offshore wind turbines currently exist on site, a 6 Megawatt ("MW") Siemens SWT turbine and a 7MW Mitsubishi Sea Angel turbine. Testing of the Siemens turbine is ongoing and the results to-date have helped to inform the decision to deploy Siemens offshore turbines at the 588 MW Beatrice Offshore Wind Farm in the Moray Firth (construction commenced in 2017) and the recent procurement by DONG Energy for the 1.2 GW Hornsea Offshore Wind Farm in the North Sea. Continued testing of both the Siemens and Mitsubishi turbines and further investment at the NOWTTF will enable further understanding of offshore wind turbines, help refine and develop offshore turbine designs, and facilitate operation and maintenance opportunities, as well as training opportunities. The NOWTTF offers a range of socio-economic benefits as identified within the Socioeconomic Analysis submitted as part of the Section 42 Application. The key economic benefits arising from the NOWTTF and presented in the Socio-economic Analysis (production XXX) are summarised as: An initial 21 million investment in development and construction supported 19 job years and 2.6 million Gross Added Value (GVA) in North Ayrshire, and 75 job years and 9.2 million GVA in Scotland; To-date the NOWTTF generated a total of 4.1 million GVA for North Ayrshire 32.4 million GVA for the Scottish economy; Potential economic impacts of the NOWTTF to 2019 suggest the development will support 68 jobs across Scotland and generate 5.2 million GVA annually; The NOWTTF has secured the employment of 55 employees of the core partners in Scotland, whose jobs are dependent on the NOWTTF; and To date, over 60 technicians have already used the NOWTTF for training purposes supported by the training team. In addition, it is noted that the Socio-economic Analysis presents the following findings: The Appellant is committed to developing industry links with local organisations including Ayrshire College and Largs Academy; 102 local community projects have received funding to date, amounting to over 238,000 ; and To date, business rates payable of 145,000 have been made, with an estimate of 180,000 payable between In addition to the above, on 10 th May 2017 the Scottish Government awarded 1.2 million to the NOWTTF via the Low Carbon Infrastructure Transition Programme, to contribute to the proposed wind-integrated Li-ion battery energy storage system proposed as part of the wider NOWTTF development. This programme is aimed at proven technologies and focuses on low carbon and/or renewable electricity and heat generation solutions in Scotland that make a valid contribution to tackle Climate Change. Since the Socio-economic Analysis was issued industry links have progressed and the first visits from technicians from Ayrshire College have taken place. 2.3 Planning History This Appeal focuses on the Section 42 Application, however in the interests of clarity a full overview of the planning history of the previous planning applications pertinent to the NOWTTF is provided in Sections and below. Full details of the Section 42 Application are then set out within Section 2.4. It is appropriate at this stage to confirm that historically the Site has supported offshore wind testing, and the principle of such development has been established as evidenced July 2017 Page 3

10 by the consents granted in 2012 and In addition the NOWTTF receives support from NPF3 which states: Hunterston has long been identified as a priority for industrial and employment use. It benefits from good transport connections, and close proximities to the cities network. North Ayrshire Council and its partners are exploring future options for the site. [ ] Future development at Hunterston should aim to make sustainable use of its key assets, including its deep water access. Activities which could align with our national strategy include manufacturing and servicing support for offshore renewable energy development, building on the success of the onshore test facility for offshore wind turbines (page 40). More recently, the Main Issues Report for the Local Development Plan 2 in North Ayrshire includes the following quote: the Hunterston Test Centre is helping to position Scotland and the UK as a key location for design, development and deployment of offshore wind technologies. National, regional and local support for the NOWTTF is outlined further throughout this Statement of Appeal, as well as within the Planning Statement, however it is considered appropriate to consider the level of national, regional and local policy support for the NOWTTF in respect of both the planning history and the Section 42 Application Application Reference: N/11/00679/PPM On 14 th February 2012 the North Ayrshire Planning Committee granted conditional planning permission for a test facility of up to three offshore wind turbines, with a maximum blade tip height of metres ( m ) at the Marine Construction Yard, Hunterston, North Ayrshire (i.e. the Consented Development). The Applicant requested a five-year time limit from the date of commissioning of the first turbine. Planning condition one of application N/11/00679/PPM imposed a five-year time limit on the Consented Development, effective from the date of commissioning of the first turbine, or on 14 th October 2017, whichever occurred earlier. The full wording of planning condition one is as follows: That the site shall be used as a facility for the testing of a maximum of 3 off-shore wind turbines at any given time for a period of 5 years from the date of operation of the first turbine, prior notification of which commencement date of operation of the first turbine shall be submitted in writing to North Ayrshire Council as Planning Authority; at the expiry of the 5 year period or 14th October, 2017 whichever is the earlier, the wind turbines and associated infrastructure shall be removed and the land restored to its former condition within 6 months, in accordance with a Decommissioning Method Statement to be agreed in writing with North Ayrshire Council as Planning Authority prior to the commencement of the development. If planning permission for the proposed multi-fuel power station at Hunterston is granted, the wind turbine test facility shall not be operational at the same time as the testing or operational phases of the multi-fuel power station. The first generation at the Consented Development was made on the 1 st of March 2014, following resolution of grid issues that were outside of the Appellants control. Based on the five year operational period permitted, decommissioning must begin on 14 th October Application Reference: N/14/00164/PPM On 23 rd April 2014 the North Ayrshire Planning Committee agreed to a variation of planning permission N/11/00679/PPM, to revise the wording of three planning conditions imposed on the Consented Development. This application requested a variation of permission via a Section 42 Application to revise of the wording of condition seven (to enable assessment of compliance with noise limits), condition nine (to revise the Page 4 July 2017

11 timescales for dealing with complaints regarding noise nuisance), and condition ten (to identify measures to reduce turbine noise where agreed levels have been exceeded). Originally the Appellant requested condition 10 was removed, however following discussions between the Appellant and the Council re-wording of condition 10 was agreed. No amendment to planning condition one (operating period) was requested as part of this application, and the decision notice for N/14/00164/PPM repeated the wording of condition one as set out within the decision notice for N/11/ /PPM. 2.4 Application Reference: 17/00034/PPM (Subject of the Appeal) Application Overview On 13 th January 2017 a Section 42 Application was submitted to North Ayrshire Council to vary planning condition one of the existing planning consents (N/11/00679/PPM & N/14/00164/PPM) to extend the operational time period of the Consented Development for a further two years beyond the current decommissioning date (until 14 th October 2019). This application was validated by the Council on 17 th January Section 42 of the Town and Country Planning (Scotland) Act 1997 is applicable to applications for planning permission to develop land without complying with conditions attached to an existing planning permission, however a Section 42 Application must be submitted whilst the relating planning permission remains extant. This was achieved by the Section 42 Application, as the operational period does not expire until 14 th of October No physical changes are proposed to the Consented Development within the Section 42 Application, however as part of the application process all environmental aspects of the Consented Development were re-assessed. This approach was discussed, informed and agreed with appropriate consultees, including the Planning and Environmental Health departments at North Ayrshire Council. These assessments found no significant changes to the overall effects arising from the Consented Development would occur as a result of extending the operational period of the NOWTTF. The findings of these assessments are presented within the Environmental Statement Update that was submitted as part of the Section 42 Application and is included as production XXX of this appeal Reasons for the Application Testing of turbines on the Site commenced on 1 st March 2014 (Siemens turbine) and 25 th May 2015 (Mitsubishi turbine). The two-year extension requested by the Section 42 Application is simply to allow the five-year testing period originally approved to be completed. A five-year testing period will ensure that the blade monitoring regime, and testing of this regime can be completed. As outlined above there is a lack of sites available for suitably testing offshore wind facilities, and Hunterston offers numerous benefits in this respect, including ease of access, docking facilities that facilitate delivery of large offshore components, and conditions that mimic those found offshore. Hunterston, North Ayrshire, and Scotland are considerably advanced in the research of offshore technology, and the Hunterston facility makes a valid contribution to this. Generally North Ayrshire and Scotland are in a strong position to continue to benefit economically from the technology as the sector develops. The Section 42 Application this appeal focuses on will, if approved, enable essential offshore component testing to occur whilst allowing long-term development options for Hunterston to be considered. July 2017 Page 5

12 As outlined within Section 2.3.1, condition one of both application N/11/00679/PPM & N/14/00164/PPM only permits an operational period of five years from the date of first commissioning (i.e. 1 st March 2014), or up until 14 th October Essentially the aforementioned delay involving the grid connection has meant that the Applicant is unable to carry out the full five years of testing required to robustly assess offshore infrastructure, and as such, the Section 42 Application was made to extend the operational period until 14 th October Application Determination Following submission in January 2017 the Section 42 Application was validated and the consultation phase opened. One objection was received from a statutory consultee (Fairlie Community Council) and as a result the Section 42 Application was called to planning committee on 8 th March 2017 with a recommendation for approval. At this committee meeting a decision was made by elected members to defer the application, to allow for additional background noise monitoring to be undertaken. No necessity existed requiring the Appellant to carry out additional noise monitoring in support of the Section 42 Application, and the Appellant agreed to undertake further noise monitoring following discussions with the Council and consultees (see production XXX for further information). The Section 42 Application was deferred to the next available meeting of the North Ayrshire Council Planning Committee, which was held on 14 th June The application was again recommended for approval, with the Council considering it appropriate for updated background noise assessments to be appropriately satisfied by proposed suspensive planning conditions. Re-measuring of background noise was not undertaken in advance of the planning committee following a request by Fairlie Community Council to agree the location of measuring equipment and procedures for monitoring, and to allow the Acoustic Consultant appointed by Fairlie Community Council to attend and supervise the installation of monitoring equipment. The Appellant entered into these negotiations in good faith, to ensure that any noise monitoring undertaken was considered acceptable to stakeholders and consultees. Following discussions between the Applicant, North Ayrshire Council Environmental Health, Fairlie Community Council and the Independent Noise Working Group (appointed by Fairlie Community Council), a specialist noise consultant (Arcus) was appointed to undertake the background noise monitoring in conjunction with further operational noise measurements. The noise monitoring equipment is now in place and the updated background noise surveys are a requirement of the aforementioned suspensive planning conditions. The planning condition proposed at the June Planning Committee allowed the background noise levels measured during the current survey to form the basis of noise limits replacing those detailed in the NOWTTF consent. This proposed planning condition sets a deadline for background noise monitoring to be complete by 15 th December 2017, which therefore ensures that monitoring results will be available within approximately two months of the existing decommissioning date of 14 th October Additional noise monitoring is expected to take up to three months, dependant on wind speeds and conditions, and the Council have expressed contentment at these matters being addressed by a suitably worded planning condition. This point was outlined further within the June Committee Agenda, and in particular within the report written by the Planning Officer it was stated that: an appropriately worded planning condition to reflect the changed circumstances in terms of background noise, would permit the continued use of the site, whilst a remeasurement of background noise is carried out (see Condition 21). It is also proposed to amend Condition No. 8 to address concerns of measurement of daytime hours, which has been raised by Fairlie Community Council and their retained specialist on noise issues (page 6). Page 6 July 2017

13 The Planning Officer s report goes on to state that: it should be noted that Condition No. 6 in its current form offers protection to residents in that the noise from turbines is to be measured following receipt of a valid complaint. Environmental Health could consider taking action if the noise from the turbines at any point in time was causing a statutory nuisance. Condition 6 though does not specifically state that further background monitoring requires to be undertaken, therefore the new planning condition (No. 21) would address this matter and has been agreed with the applicant (page 8). Timescales relevant to the Section 42 Application have left the Appellant with very few options other than submitting a Planning Appeal. As outlined within section 5.1 of this statement, the deadline for submitting an appeal is 16 th August 2017 (three months after a decision was to be issued by the Council) and by deferring the Section 42 Application on two separate occasions, the Section 42 Application is now scheduled to be determined at the Planning Committee being held on 20 th September 2017, which is past the deadline for when an appeal can be submitted. Owing to the decision to defer the Section 42 Application for a second time, and given the timescales the Appellant is working to, they have limited options and therefore must submit this Statement of Appeal, with an aim of receiving approval for the Section 42 Application before 14 th October It is considered by both the Council and the Appellant that elected members of the North Ayrshire Planning Committee had all the necessary information available at the time of both planning committees to make a decision regarding the Section 42 Application, and the failure to reach a decision has ultimately resulted in this planning appeal being submitted. 3 SUMMARY OF KEY CONSULTEE RESPONSES AND CORRESPONDENCE The accompanying Planning Statement provides a list of the consultees who have been consulted during the planning application process. Table 1 summarises the key statutory consultation responses submitted to the Council during the consultation period. Of the four statutory responses received, there is one objection, from Fairlie Community Council. Table 1: Statutory Consultee Responses Summary Consultee Key Comments Environmental Health Officer Fairlie Community Council Largs Community Council West Kilbride Community Council No Objection Objection, on the grounds of environmental impacts, temporary permission (objection to extending original five year consent by the proposed two years); unsuitability of location; lack of Environmental Impact Assessment and Environmental Statement; unreliability of audible noise test results; evidence that wind turbines can adversely affect people s health; misrepresentation of proximity of Fairlie to wind turbines; and suggested lack of economic case. No Objection No Objection Points raised regarding period of consent (original permission allowed 5 years and it was up to the Appellant to utilise this time); noted increase in road traffic movements; mention of low frequency noise raised by Fairlie Community Council; and request that no further developments occur at the site during two year extension, if granted. July 2017 Page 7

14 The specific points raised within the Fairlie Community Council objection letter are addressed by the Planning Officer within the June Committee Agenda, and also throughout this Statement of Appeal. In addition to responses from statutory consultees, public consultation responses were submitted to the Council during the consultation period and these have been assessed by the Appellant. All correspondence received in respect of the Section 42 Application is submitted as productions of this appeal. In total, six letters of support were received during the public consultation period. The main reasons for support provided include: Highlighting that renewable energy developments make a valuable contribution to meeting climate change targets Support for the employment benefits and local supply chain benefits associated with the NOWTTF; Partnership working opportunities with Ayrshire College to potentially benefit students across the College campus; and Accordance with the Local Development Plan and Clydeports aims for the ongoing use of the site whilst maximising the options available for use and employment; In total, nine objections were received during the public consultation period, with the main issues raised attributable to the following topics: Unsuitability of the Hunterston Peninsula for wind turbines; Complaints of dizziness and nausea from residents residing in Fairlie, with no adequate measurements of amplitude modulation associated with infrasound conducted; Lack of new Environmental Impact Assessment or Environmental Statement for the Section 42 Application; NOWTTF is contrary to the North Ayrshire Supplementary Landscape Wind Capacity Study (June 2013) on the grounds of visual impacts; and Lack of local employment opportunities arising from the development. A number of the concerns and matters raised are factually incorrect or are not material planning considerations, and should therefore not be given weight in the determination of this Appeal. The valid and material considerations that have been raised by objectors pertain to matters which have been addressed throughout this Statement of Appeal (particularly sections 2, 5, 6 and 7 of this Statement of Appeal), the Planning Statement and accompanying correspondence submitted as part of this appeal. 4 CONSIDERATION OF THE APPLICATION AND THE ASSESSMENT APPROACH Section 25(1) of the Act states that "where, in making any determination under the Planning Acts, regard is to be had to the development plan, the determination is, unless material considerations indicate otherwise to be made in accordance with that plan ". Section 37(2) of the Act states that "in dealing with the application made to a planning authority for planning permission, the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations". The well-known dictum of Lord Clyde in the case of City of Edinburgh Council v Secretary of State for Scotland & Others 1997 S.C.L.R at page 44g-44b is as follows: "In the practical application of Section 18a it will obviously be necessary for the decision maker to consider the development plan, identify the provisions in it which are relevant to the question before him and make a proper interpretation of them. His decision will be Page 8 July 2017

15 open to challenge if he fails to have regard to a policy of a development plan which is relevant to the application or fails properly to interpret it. He will also have to consider whether the development proposed in the application before him does or does not accord with a development plan. There may be some parts of the plan which support the proposal but there may be some considerations pointing in the opposite direction. He will require to assess all of these and then decide whether in light of the whole plan the proposal does or does not accord with it. He will have to identify all the other material considerations which are relevant to the application and to which he should have regard. He will then have to note which of them support the application and which of them do not, and he will have to assess the weight to be given to all these considerations. He will have to decide whether there are considerations of such weight as to indicate that the development plan should not be accorded the priority which the statute has given to it. And having weighed these considerations and determined these matters, he will require to form his opinion on the disposal of the application. If he fails to take account of some material consideration or takes account of some consideration which is irrelevant to the application, his decision will be open to challenge. But the assessment of the considerations can only be challenged on the ground that it is irrational or perverse." This dictum is applicable to the Section 42 Application which is the subject of this appeal. Accordingly the appropriate approach to adopt when considering the Section 42 Application under appeal is as follows: To identify the provisions of the Development Plan which are relevant to the consideration of the application; To consider whether or not the granting of the planning permission accords with the Development Plan; To identify and consider other relevant material considerations for and against the grant of planning permission; and To assess whether the considerations warrant a departure from the Development Plan. This Statement of Appeal reflects the approach set out above and Section 5, as well as productions lodged as part of the appeal process, address compliance of the Section 42 Application with the Development Plan comprising the North Ayrshire Local Development Plan and other material considerations to be taken into account, including the NPF3, Scottish Planning Policy, energy policies, responses from statutory consultees and public representations. 5 GROUNDS OF APPEAL Section 5.1 to 5.4 of this Statement of Appeal address the key issues for consideration in the determination of this appeal, based on matters within the statutory consultation responses. In addition, Sections 5.2 and 6 of this Statement of Appeal summarise the Section 42 Application s accordance with the Development Plan and associated material considerations, setting out the planning grounds and the reasons why the appeal should be allowed. A full assessment of the compliance with the Development Plan and material considerations is provided within accompanying documents including the Planning Statement, and should be read in conjunction with this Statement of Appeal. 5.1 Case for the Appeal Against Non-Determination An appeal on the grounds of non-determination is considered to be the only opportunity available for the Appellant to request that the Section 42 Application is appropriately determined, owing to the expiry of the statutory expiry date and the failure for a decision to be reached on two occasions by the North Ayrshire Planning Committee. This was despite a recommendation for approval being suggested by the Planning Officer on both July 2017 Page 9

16 occasions. Based on statutory timescales and information available at the time of writing, the timeline relevant to the Section 42 Application is as follows: 17 th January Application Validated; 17 th May Statutory Expiry Date; 16 th August Deadline for Appeal Submission; and 23 rd August Next Scheduled Planning Committee. Section 42 Applications are to be determined on the grounds of the proposed amendment to a specific planning condition. In this case, this relates only to the amendment of planning condition one, which relates to the date of operation of the NOWTTF, and the Section 42 Application requests a time extension to allow operation for a further two years. Previous applications for the NOWTTF have been considered acceptable by the Council, including the principle of the Development, and the supporting information submitted with the Section 42 Application (including the Planning Statement and the Environmental Statement Update) indicate that no significant unacceptable effects will arise from extending the operational period of the NOWTTF for a further two years. The Section 42 Application was deferred on the two occasions it has been presented to the North Ayrshire Planning Committee to allow additional background noise monitoring to be carried out. This additional background noise monitoring is, at the time of writing ongoing, and it has been confirmed by both the Planning Officer and the Environmental Health Officer that these matters are appropriately reserved via existing and proposed suspensive planning conditions. In practice this means that should the Section 42 Application receive approval, as per the recommendations of the Council, extended operation of the NOWTTF beyond the current consents expiry date will not be permitted until the additional background noise monitoring has been completed and signed-off by the relevant authority, in this case the Environmental Health Officer and the Planning Officer on behalf of their respective Council departments. The date for completion of the updated background noise survey is 15 th December 2017 (after the existing consents expire). The planning conditions proposed to ensure protection arising from noise emissions on receptors, including amenity and health, are set out within Section 5.3 of this Statement of Appeal. However it is appropriate to reiterate that in the opinion of the Council, background noise measurements and noise immissions arising from the operational turbines are considered to be appropriately satisfied and limited by both the planning conditions currently imposed on the NOWTTF and the planning conditions proposed within the Planning Officer s report written in advance of the June Planning Committee. These planning conditions are based upon the noise related conditions imposed on planning permission N/14/00164/PPM and are considered to ably protect receptors from undue or adverse noise impacts. Based on the above, there is no reason why the Section 42 Application could not be determined at either the March or June Planning Committee, as the Council are considered to be in a position to fully assess the Section 42 Application. All of the information required for the Planning Committee to robustly assess and determine the Section 42 Application was available in advance of both Planning Committees, and this is evidenced by the recommendation for approval proposed by the Planning Officer on both occasions. It is fair to suggest that the Planning Officer, representing the wider Planning Authority, felt that there was sufficient information submitted within the Section 42 Application to robustly assess and determine it, otherwise the Section 42 Application would not have been determined, or even validated at the early stages. The fact is that the Planning Officer, on behalf of North Ayrshire Planning Authority, professionally and robustly assessed the Section 42 Application during the determination process and saw no valid reason to request further information prior to recommending the Section 42 Application for approval on two separate occasions. Page 10 July 2017

17 The decision of deferral taken by elected members at both the March and June Planning Committees has left the Appellant with little choice but to request the Section 42 Application is considered via appeal. The Appellant therefore presents this Statement of Appeal on the basis that the Section 42 Application includes sufficient information for a decision to be made, and that the deferred decisions reached by the North Ayrshire Council Planning Committee on two occasions were not based on appropriate planning grounds. 5.2 Accordance with the Development Plan Any application made under Section 42 of the Town and Country Planning (Scotland) Act 1997 requires the Planning Authority to only consider the question of the planning conditions subject to which permission should be granted, in this case, condition 1 of Planning Permission N/14/00164/PPM. A request to vary condition 1 has been made to extend the operational time period of the NOWTTF until 14 th October The June Committee Agenda, and in particular within the report written by the Planning Officer, suggests the role of the Council when determining the Section 42 Application should only consider the planning conditions subject to which permission should be granted: The main determining issue in this case is whether the proposed time extension would accord with the provisions of the development plan, and whether there are any other material planning considerations which would not permit the extension of time (page 16). As per the Planning Statement and the March and the June Committee Reports, the adopted North Ayrshire Local Development Plan ( the LDP ) (adopted by the Council on 20 th May 2014) is the development plan relevant to the Section 42 Application ( the Development Plan ). The NOWTTF was originally assessed against the Ayrshire Joint Structure Plan and the previous North Ayrshire Local Plan (excluding the Isle of Arran), whilst the current LDP was considered as a material consideration. However these plans have now been fully replaced by the LDP. A full assessment of the Section 42 Application against the Development Plan is presented within Section 3 of the Planning Statement. However the key Development Plan policies of relevance to the Section 42 Application are set out in Table 2 below. Table 2: Relevant LDP Policies General Policy (a) Siting, Design and Appearance General Policy (b) Amenity General Policy (c) Landscape Character Development Policy HE 1: Conservation Areas Policy HE 4: Scheduled Ancient Monuments and Archaeological Sites Policy HE 5: Historic Landscapes General Policy (d) Access, Road Layout and Parking Provision General Policy (e) Safeguarding Zones General Policy (h) Natura 2000 Sites Policy ENV 6: Economic Development or Diversification in Rural Areas Policy ENV 7: Special Landscape Areas Policy ENV 9: Nature Conservation Policy IND 1: Strategic Business Locations Policy IND 2: Hunterston National Development Policy PI 8: Drains, SUDS & Flooding Policy PI 9: Renewable Energy Policy STRAT 2: Employment Policy STRAT 5: Environment The Planning Statement fully assessed the Section 42 Application against a range of criteria, including the findings of the Environmental Statement Update, and found that July 2017 Page 11

18 the Section 42 Application was in accordance with the Development Plan and could draw considerable support from the LDP, national planning and energy policy, which continue to be wholly supportive of renewable energy development (page 18). Environmental and amenity effects were considered in accordance with the Development Plan and the Section 42 Application was considered acceptable against all receptors and issues assessed. General agreement to the compliance of the Section 42 Application with the Development Plan is indicated by the Council, as expressed within both the March and the June Committee Reports, The most recent position of the Council is provided within the June Committee Report, stating: It is considered that although the current development continues to have a significant impact on the landscape character of the area, and any long term plans for the continuation of the development would not be supported, the proposed timeframe of 2 years would allow for the ongoing testing of turbines in line with the 5 year timescale, which was requested in This decision to extend the timeframe by a further two years would not raise any longer term effects on the visual amenity of the area. It is considered that the applicant has provided sufficient social and economic justification for the proposal however, beyond the proposed 2 years, any long term proposals for the retention of the test turbine site would not comply with the wider aspirations of NPF3 of the National Renewables Infrastructure Plan, with regards to the future manufacturing and servicing potential of Hunterston (page 21). The Appellant suggests that when assessed against the Development Plan as a whole, the Section 42 Application is in accordance, and in such circumstances the Development should be granted unless a material consideration is evident which indicates that planning permission should be refused. The key LPD policies relevant to the Section 42 Application comprise Policy IND 1: Strategic Business Locations, Policy IND 2: Hunterston National Development, and Policy PI 9: Renewable Energy. Policy IND 1 identifies a number of Strategic Business Locations for nationally important development including the Hunterston National Development, whilst seeking to protect the Strategic Business Locations from inappropriate uses and development that may comprise their quality, accessibility or marketability as business locations. Policy IND 2 sets out the types of development that are acceptable for the Hunterston National Development that is defined by Policy IND 1 as a Strategic Business Location. Types of development considered acceptable include energy related development consistent with the National Planning Framework and a wind turbine test centre of national significance. As the Section 42 Application seeks to extend the operational lifespan of an energy related development, specifically identified within NPF3, and consists entirely of a wind turbine test centre of national significance, it is considered that extending the NOWTTF is compliant with the types of development permitted by LDP Policies IND 1 and IND 2. As set out within the Planning Statement, Policy IND 2 also requires the Development to demonstrate a range of criteria, including how the scheme fits with existing and other proposed uses, satisfactory accessibility, compliments the development of Hunterston as an integrated manufacturing site for renewables, and demonstrate electricity infrastructure to enable electricity to be fed into the national grid. Particularly relevant to the Section 42 Application and this Statement of Appeal, Policy IND 2 requires proposals at the wind turbine test centre of national significance to be initially time limited to a maximum five year period. As stated within the Planning Statement: Page 12 July 2017

19 the NOWTTF has been initially time limited to five years, and this planning application submission proposed a further time limit of two years [to allow a full five year operational period]. As set out within Section 2 of [the Planning Statement], there are significant benefits that arise from extending the operational time period for a further two years in order to complete the current testing of turbines on the Site for the offshore wind industry and in order to develop a longer term plan for the Site. To withhold a further two years would jeopardise the progress of the offshore wind industry in Scotland and the UK as a whole (page 8). The purpose of the Section 42 Application is to request a formal extension of time to the operational lifespan of the NOWTTF. Whilst the appropriateness of extending the operational period has been contested throughout the Section 42 Application process, it is clear that the Development Plan, and in particular Policy IND 2, does not prohibit an extension of time for proposals located at the NOWTTF. Whilst proposals are to be limited to an initial five year period, as the Consented Development has been, there is no policy presented within the Development Plan that prohibits an extension to the initial five year operational period relevant to developments located at the NOWTTF being granted. As the Section 42 Application clearly compliments the criteria outlined in LDP Policy IND 2, and there is no reason why an extension of time may not be requested, the Section 42 Application is therefore considered to comply with LDP Policy IND 2, especially when the benefits arising from extending the operational period are considered. When considering the Section 42 Application against the wider Development Plan, it has been demonstrated to comply with the wider aims and the policies pertinent to the Site, notably within the Planning Statement. It is therefore considered that overall the Section 42 Application accords with the Development Plan. 5.3 Grounds Associated with Noise It has been documented that concerns were raised by Fairlie Community Council and a small number of objectors in reference to noise. These points are addressed under subsections to below under the following headings: Changes to Background Noise Levels Suggested Deficiencies in the Appellants Noise Assessment Links Between the NOWTTF and Public Health Raised During Consultation Summary of Grounds of Appeal Associated with Noise The Section 42 Application does not propose any physical changes to the Consented Development, including the existing infrastructure at the NOWTTF, and as such there will be no change to the operational noise levels as a result of the Section 42 Application. At the time of writing the Operational Noise Survey, for the purpose of verifying compliance of the NOWTTF with existing planning conditions relevant to noise (and therefore also assessing compliance of the Section 42 Applications with existing planning conditions relevant to noise) has been organised and monitoring equipment has been installed. The survey methodology has been agreed with North Ayrshire Council Environmental Health and also discussed with Fairlie Community Council and their advisors, and includes the re-measurement of background noise levels Changes to Background Noise Levels Concerns were raised regarding the changes to background noise levels that have occurred since the original background noise surveys were carried out. It is accepted by all parties that background noise levels may have changed since the NOWTTF was determined, i.e., that background noise levels are likely to have reduced due to lower levels of activity at the coal handling facility and the completion of decommissioning of July 2017 Page 13

20 Hunterston A Power Station. Additional background noise surveys are ongoing to measure and assess background noise levels in vicinity of the NOWTTF. The change to background noise levels is suitably addressed by a suspensive planning condition that has been prepared by the Council in consultation with the Environmental Health Authority. The proposed suspensive planning condition to ensure that background noise surveys are carried out prior to commencing a period of extended operation, as requested by the Section 42 Application, is stated within the June Planning Agenda, and states: That the operator shall employ a suitably qualified acoustic consultant or other competent person to conduct and submit a Background Noise Survey within 6 months of approval, and no later than 15 th December The measurement and calculation of background noise levels shall be undertaken in accordance in accordance with ETSU-R-97 The Assessment and Rating of Noise from Wind Farms and IOA A good practice guide to the application of ETSU-R-97 for the assessment and rating of wind turbine noise including the type, classification and calibration of the measuring equipment, the location of the microphones, the relevant weather conditions and the analysis and presentation of the measured noise or such other method agreed in writing by the Environmental health Service of North Ayrshire Council. In the event that the Background Noise Level is found to be different to the Background Noise Survey referenced in Hunterston National Offshore Wind Turbine Test Facility Volume 1: Environmental Statement, the most recent levels shall be recorded as the background noise level referred to in Condition 7 and 8 (page 9). Additional background noise measurements have been commissioned to assess changes in background noise levels since the original NOWTTF application was determined. It is not considered that the results of the background noise survey are required for the Council to determine of the Section 42 Application, owing to the fact that operational noise immissions are already regulated and controlled via existing and proposed planning conditions Suggested Deficiencies in the Appellants Noise Assessment The consultation response received from Fairlie Community Council suggests there were deficiencies in the noise assessment that accompanied the Section 42 Application. These points were also raised in the consultation response submitted by Fairlie Community Council, as summarised in section 3 of this Statement of Appeal. Consultation responses queried other aspects of the noise assessment, and a full response to these queries is provided within the Appellants response to the Independent Noise Working Group and Fairlie Community Council. This response is presented as production XXX of this appeal. This response clearly sets out the Appellants position in response to the points raised by the Independent Noise Working Group and Fairlie Community Council, and the Appellants position remains appropriate in respect to this Statement of Appeal. In summary, the assessment followed Good Practice Guidance set by the Institute of Acoustics, and has been accepted by the Environmental Health Officer at North Ayrshire Council Links between the NOWTTF and Public Health Raised During Consultation A small number of consultee responses raised concerns relating to public health impacts perceived to be as a result of the NOWTTF, in particular impacts purported to be a result of low-frequency noise and infrasound. Consequently any such impacts would remain should the Section 42 Application be consented, owing to the nature of the application (extension of time). Page 14 July 2017