SCOTTISH GOVERNMENT CONSULTATION PERMITTED DEVELOPMENT RIGHTS FOR MICROGENERATION EQUIPMENT ON NON DOMESTIC PROPERTIES

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1 SCOTTISH GOVERNMENT CONSULTATION PERMITTED DEVELOPMENT RIGHTS FOR MICROGENERATION EQUIPMENT ON NON DOMESTIC PROPERTIES RSPB Scotland response to Consultation Paper October 2010 Name: Organisation: Address: address: Telephone number: RSPB Scotland Dunedin House, 25 Ravelston Terrace, Edinburgh, EH4 3TP Background The RSPB in Scotland is supported by over 86,000 members and employs around 200 staff to promote the conservation of birds and biodiversity. Bird populations reflect the health of the planet on which our future depends. Climate change, agricultural intensification, expansion of urban areas, new transport and energy infrastructure and over-exploitation of our seas all pose major threats to birds. RSPB Scotland s work covers a wide range of issues including planning, climate change, energy, marine issues, water, trade and agriculture. We also have practical experience of managing land and coast for conservation, farming, forestry and other enterprises. As well as commenting on national planning issues, our professional planning and conservation staff are regularly involved in the development planning process and we comment on several hundred planning applications annually. In combination with RSPB staff across the UK, and our international partners in Birdlife International, we have cross-cutting expertise and experience of land use and sustainability issues within Scotland, the UK and internationally. RSPB Scotland considers climate change to be the greatest global environmental threat facing humans and the environment. A large proportion of our native species could be threatened by climate change if we take no action to limit global warming. We support renewable energy development in locations that do not impact upon sensitive habitats and species and believe that renewable energy can play a key role in reducing our greenhouse gas emissions and meeting ambitious carbon reduction targets. Faced with the threats of climate change, the RSPB believes that a move to low carbon energy is essential to safeguard biodiversity. Microgeneration can play a role in this by reducing 1

2 emissions and meeting targets set out in the Climate Change (Scotland) Act, and we therefore welcome consultation on proposals regarding Permitted Development Rights (PDR) for suitably located micro renewable equipment. However, whilst many aspects of the proposals for permitted development are welcome, some issues raise concern and these are discussed in our response below. Key Issues Status of PDR in sites designated for nature conservation While we are supportive of micro generation technologies, we recognise that due to the scale of the equipment required by non-domestic properties, this potentially poses a greater risk to birds and other wildlife, including bats, than domestic microgeneration. The consultation states that PDR will not apply for freestanding solar arrays, micro wind turbines, air, ground and water source heat pumps, biomass installations and micro hydro within designated areas such as Natura 2000 sites and SSSIs. This should also, however, include Ramsar sites, which the Scottish and UK Governments have committed to provide the same level of protection for as Natura sites. Microgeneration equipment, even small-scale equipment, located in the wrong place can impact on sensitive wildlife and habitats. For this reason, RSPB Scotland supports the exclusion of PDR for non-domestic microgeneration equipment from within sites designated for nationally and internationally important nature conservation interests (i.e. SPAs, SACs, SSSIs and Ramsar sites) as the risk to wildlife is greater within these sites. Exclusion of PDR from these areas will reduce the risk of potential adverse impacts on designated sites and means that robust consideration of the impact of development will be required as part of the planning application process. Whilst it is likely that a majority of sites will not be significantly impacted upon by microrenewable installations, in a small number of cases these technologies may have a significant impact on sensitive species. It is also worth noting that, should PDR apply within these areas, PDR would not override the statutory nature conservation protection afforded European sites (SPAs and SACs) or SSSIs. The procedures for permitted development affecting designated sites are as follows: For SPAs and SACs, permission is required from the planning authority under regulation 62 of the Conservation (Natural Habitats &c.) Regulations 1994 (as amended). In effect, appropriate assessment is required. For Sites of Special Scientific Interest (SSSI), consent must be sought from SNH, provided the operation is specified on the list of Operations Requiring Consent accompanying the citation (see annex). However, by their very nature, developments with PDR are permitted and therefore outwith the normal planning application process overseen by the local planning authority. This means that local planning authorities and SNH may not be aware of the installation of (for example) PD turbines. The onus is thus very clearly on the developer, and whilst guidance may be produced, RSPB Scotland is concerned that, due to the current environmental uncertainties, a non-domestic property owner (for example) may not be fully aware of the ecological sensitivities or presence of designated sites in their locality. On this basis, the developer may not consider it necessary to inform the local planning authority regarding the intention to install a PD turbine. This could result in a PD turbine with 2

3 potential significant effects on biodiversity not being subject to any scrutiny. We therefore consider that removing PDR within designated areas is the simplest and most transparent way of reducing the risk to sensitive species and habitats within these sites. This still leaves the possibility that a developer may install a renewable device outside a designated site but with the potential to have significant effects on the site s qualifying interests. We therefore recommend that guidance for PDR of microrenewables is produced and makes reference to these environmental issues and regulations. This guidance should make it clear that developers wishing to install renewable energy devices under PDR should seek advice of planning authorities unless they are certain that no adverse impact on a designated site is possible. Answers to consultation questions 1. What types and scales of equipment do not need to be examined by a planning authority because they will have an acceptably small impact, or no impact at all? We have no specific comments on which technologies would have little or no impact on nature conservation interests. As discussed in the key issues section of our response, we recommend that guidance for PDR of microrenewables is produced. This should aim to guide property owners, developers and installers of microrenewables on potential environmental issues and regulations, stressing that PDR will not mean that every development will be acceptable in all circumstances. 2. Do you think that it is appropriate to introduce an entirely new schedule of permitted development rights (with specific amendments for existing permitted development rights for Agricultural and Forestry units). The alternative is to make amendments to each of the existing classes of permitted development. Yes, we would encourage a wider review of the GPDO that will include a review of all non-domestic PDR. Many agriculture and forestry developments are covered by PDR but in some cases, these developments have the potential to be very environmentally damaging (for instance, the construction of forestry tracks is usually covered by forestry PDR). We would support the removal of PDR for environmentally damaging developments and look forward to working with the Scottish Government to achieve this. 3. Should non-domestic microgeneration be constrained to installations which are primarily serving the energy needs of the property on which they are sited or should community scale and installations which feed directly to the national grid but are sited on non domestic property also be included? While we are supportive of microrenewable technologies, we recognise that due to the scale of the equipment required by non-domestic properties, this potentially poses a greater risk to wildlife than domestic microgeneration. However, since the proposal is to exclude PDR from within sites designated for nature conservation (i.e. Natura sites, SSSIs and Ramsar sites), RSPB Scotland considers that efforts should be made to maximise renewable energy generation from PDR outside designated sites. For this reason we feel it is appropriate that some community scale installations be classed as PDR. A suitable 3

4 definition of what might be considered as PD would be development that falls outwith the definition provided in Schedule 2 of the EIA regulations. 4. Does the do nothing statement represent an adequate interpretation of the requirements of the Climate Change (Scotland) Act on the planning system with regard to permitted development rights for microgeneration technologies? Section 71 of the Climate Change (Scotland) Act requires that PDR for microgeneration equipment be introduced for non-domestic properties. The RSPB view is that the do nothing option does not satisfy this requirement. 5. Should the Scottish Government be seeking to make more than the minimum number of changes to the current permitted development rights Order or would minimum action be sufficient? RSPB Scotland recognises that microrenewable technologies can make an important contribution to our energy mix and can help reduce domestic emissions. Therefore, we support the installation of microrenewables in locations where they do not have significant adverse impacts on natural heritage. For this reason we would like to see efforts to maximise the use of microrenewables where they do not impact on sensitive nature conservation interests. 6. Is the concise description of unrestrained microgeneration development in nondomestic settings accurate in terms of its potential impacts? The description of unrestrained microgeneration development makes no attempt to consider the potential impacts of such an expansion on nature conservation interests. Microgeneration equipment could, in some cases, have significant impacts on birds and wildlife if located insensitively. Natural heritage impacts associated with each technology may include the following: Micro wind turbines While there is substantial evidence of negative impacts of inappropriately sited largescale wind farms on birds and bats, very little research has been carried out on the impact of micro-turbines, such as those installed on domestic buildings. For this reason, RSPB Scotland recommend locating micro turbines away from regular nest sites and that installation of micro turbines is avoided during the breeding season (usually March September). This would be in accordance with existing best practice and should not, therefore, be overly onerous on installers. There is also the potential for freestanding individual turbines and arrays in gardens to increase the proportion of hard standing this would be detrimental both to local wildlife and to the ability of land within non-domestic properties to act as a sink for surface runoff. Micro hydro We are satisfied that due to the relatively low uptake so far of this kind of technology, micro hydro proposals can be accommodated in the planning system and developers planning to install micro hydro generation equipment should consult SEPA. The joint 4

5 guidance produced by SEPA and SNH on this subject should be fully referenced in future guidance on PDR for microgeneration. Solar PV and hot water Solar PV and solar hot water installations may impact upon nesting birds. Where roofs are subject to alteration or building work, provision should be made for nesting birds and other wildlife. The Wildlife and Countryside Act 1981 (as amended) states that is an offence to intentionally or recklessly take, damage or destroy the nest of any wild bird while in use, or being built. Due consideration should be given to nesting birds especially between March and September, and installation of panels close to nest sites should be avoided during these months. Biomass Although in general, biomass microgeneration equipment does not produce significant impacts on birds, where work on flues etc is conducted on roofs, due consideration should be given to wildlife as discussed previously. In addition, the production of biomass fuel can have indirect impacts of biodiversity through loss of habitats and indirect land use change. Ground source / Air source heat pumps While ground and air source heat pumps may not cause considerable problems for birds and bats when in flight, trenches or boreholes associated with heat pumps could have the potential to impact on habitats. In response to the recent Scottish Government consultation on PDR for domestic microgeneration equipment, RSPB Scotland strongly urged that environmental safeguards be incorporated into the General Permitted Development Order to ensure that the risk of damage to sensitive sites is minimised. This included a limit on land-take in the case of ground source heat pumps. 7. Should the overall surface area of pitched roof mounted solar panels be restricted, if so by how much and why? 8. When providing large areas of solar panelling, additional supporting framework is required, should the protrusion threshold therefore be increased to 300mm and would the visual impacts of this be acceptable? 9. The restriction to permitted development for designated areas avoids installation of the technology on principal elevations, is that sufficient and if not, why? 10. There are no additional restrictions proposed for buildings in multiple occupation or ownership, do you think there should be and why? 11. Do you consider the restrictions to safeguard landscape scale impacts (light flashes) should be proposed and if so what should those restrictions be? 5

6 12. Should there be additional restrictions with regard to protecting the interests of aerodrome operations and radar signals and if so, what should those restrictions be? 13. Should solar thermal installations have a more generous protrusion or height allowance when mounted on flat roofs and if so what should the maximum limitations be? 14. Do you agree that wall mounted solar installations should be additionally restricted only in designated town centres or should wall mounted solar installations be limited to walls which are not the principal elevation? 15. Are the boundary set-back thresholds for free standing solar installations too restrictive and if so what is the alternative and why? 16. Does the 4 meter maximum height of a free standing solar installation need to be reduced within 3 kilometres of the perimeter of an aerodrome, if so why and what are the implications for aviation safety? 17. Should the surface area of a free standing solar array be increased and if so can this be achieved without adverse visual impact? 18. It is not proposed to extend permitted development rights to free standing solar installations within sites of Archaeological interest or sites designated for habitat protection under international regulations due to the potential impact of foundation works. If you consider this approach to be too restrictive, please provide reasons. RSPB Scotland support the exemption of free standing arrays and microgeneration equipment from PDR in sites designated for habitats protection under international regulations. This should also include nationally designated sites such as Sites of Special Scientific Interest (SSSI). While we acknowledge that not all SSSIs have designated features that would be affected by micro renewables installations, in the interests of simplicity, from the perspective of both applicant and planning authority, we believe PDR should not apply in any of these designated sites. The appropriateness of the proposal can then be properly considered as part of a planning application. 6

7 Whilst a majority of sites will not be significantly impacted upon by microrenewable installations, in a small number of cases these technologies may have a significant impact on sensitive species. For this reason, we believe that PDR should be removed within designated sites. This does not mean development of micro renewables cannot go ahead within designated sites, but that proposals in designated areas will require planning permission and scrutiny by the local planning authority. 19. Do you consider the additional height for pole mounted solar installations to be sufficient or excessive? What are the alternative approaches? 20. Could the height restriction on pole mounted solar installations within 3 kilometres of the perimeter of an aerodrome be relaxed given the minor nature of the installations? 21. Should the requirement for non-reflective materials on all solar installations be limited to those installations sited within 3 kilometres of the perimeter of an aerodrome only? 22. Do the proposed permitted development rights for solar installations contain sufficient safeguards to avoid adverse impacts on the operation of radar systems (civil and military) across Scotland, if not what other measures could be used? 23. Should vertical axis wind turbine blades be measured on the external face of the turbine blade as well as the circle within which the turbine blades move or should other measurements be used? 24. Do you have any comments on the limitations to the height of wind turbines? It is difficult to answer this question as there seems to be some ambiguity regarding the requirements for EIA regulations. The consultation states that the maximum height of wind turbines either free-standing or building mounted which could be permitted development is 15 metres to tip height, however the EIA regulations refer not to tip height but to hub height of 15m, such that EIA screening is required if: (i) The development involves the installation of more than 2 turbines; or (ii) the hub height of any turbine or height of any other structure exceeds 15 metres. Therefore, the consultation should be amended to recognise that 15m is the threshold for hub height, after which EIA scoping is required. If screening finds that an EIA is required, then a planning application will also be required. The consultation must also make clear that any amendments to blade diameter do not affect the requirements of the 7

8 EIA regulations as this is based on turbine hub height (please also see answer to question 32). The consultation should also clarify the level of demand for turbines less than 15m as it is unclear whether this related to turbines with hub heights of less than 15m or turbine with blade tip heights of less than 15m. 25. Are the Microgeneration Certification Scheme and stated noise thresholds a sufficient safeguard for noise issues related to micro-wind turbines? 26. Is the Microgeneration Certification Scheme a sufficient safeguard for vibration issues related to micro-wind turbines? 27. The Scottish Government is not advocating specific safeguards with regard to shadow flicker, your comments and observations on this would be welcome. 28. Are there specific measures which the Scottish Government should consider putting in place to safeguard against broadcast signal disturbance and if so what are they? 29. Should the introduction of permitted development rights for micro-wind turbines be put on hold until the radar issues can be resolved or would reduced blade dimensions be acceptable as an interim measure? 30. Given the nationwide application of permitted development rights, what workable special provisions might be put in place to safeguard bats and birds (if you consider that is necessary)? As discussed previously we think that PDR should be removed for microgeneration equipment in non-domestic properties in sites designated for nature conservation interests. However, this does not mean development of micro renewables cannot go ahead within designated sites, but that proposals in designated areas will require planning permission and scrutiny by the local planning authority. Proposals for PDR may take certain developments out of the control of Local Planning Authorities and may lead to greater instances of disturbance to birds and wildlife. Should the proposals for revised PDR for non-domestic properties go forward, we request that guidance be produced for owners and contractors to advise them in terms of wildlife issues so they do not inadvertently break the law by disturbing nesting birds. Guidance should consider the following issues: Roofing Alterations 8

9 We think the guidance should ensure people are aware of the need to consider whether nesting birds might be present and liable to be disturbed. For most species, carrying out roofing work only during the months of October to February will avoid conflict with breeding activities. House sparrows and feral pigeons may nest in any month, house martins sometimes have young in the nest as late as October and other species will, exceptionally, nest on buildings either very early or very late in the year. In the case of swifts, whose numbers are declining and which nest almost entirely in buildings, their nest-sites should be protected wherever possible and once work outside the breeding season (which can last until September or October) has been carried out, access to their nests should remain intact. Location of microgeneration equipment Guidance should also be produced on the location of micro wind turbines (e.g. away from nesting sites) and other microgeneration equipment. Mitigation Where birds are found to be present, the property owner and contractor should also be encouraged to provide some form of mitigation within the new structure to provide birds with replacement habitat specifically targeted to the species that is displaced by the works. However, this should also be sited and designed to avoid any increase in collision risk to birds. Monitoring To date there has been very little research into the impacts of microgeneration equipment on wildlife such as birds and bats. Because of the potentially very significant increase in the number of microgeneration devices, a monitoring system should be put in place to gather information from new and existing micro-renewables installations and help ensure future impacts are minimised. 31. How might the settings of listed buildings be harmed through the installation of micro-wind turbines and what measures (if needed) could be put in place to reduce, remove or mitigate those effects? We have no specific comments to make in response to this question. 32. Do you think the blade diameter (and equivalent swept area) for micro-wind turbines should be increased and if so do you agree with the description of likely resulting impacts? The proposal is for a 10m blade diameter from a 10m hub height which would fall within 15m hub height threshold and therefore would not require EIA screening. Section 62 discuss increased visual impacts with increased blade diameter but does not consider the potential for increased bird collision should the blade diameter be increased up to 14m. It should be noted that increasing the diameter of the blade would increase the rota swept area of the turbine and thus increase the potential collision risk 1 and this should be included in the description of likely impacts. 1 SNH (2000) Assessing collision risks. Available online: 9

10 The consultation must also acknowledge that increasing the blade diameter of PDR to beyond 15m over the threshold for hub height, could cause some confusion as to whether EIA and hence planning permission is required. 15m is the threshold after which EIA screening is required, if screening finds that an EIA is necessary, then a planning application will also be required. The consultation must also make clear that any amendments to blade diameter do not affect the requirements of the EIA regulations as this is based on turbine hub height. 33. What would be the impacts of increasing the blade diameter (and equivalent swept area) in terms of efficiency of the micro-wind turbine, and could this be achieved within the 15 metre height restriction? See answer 24 for discussion of 15m height restriction. 34. Should the permitted development rights for building mounted wind turbines only apply to detached single ownership buildings and if so why? 35. For both ground and water source heat pumps the area of associated pipe work is proposed at a maximum of 0.5 hectares. Initial engagement has been split as to whether that area is sufficient. Your views would be welcome as to whether this is sufficient. 36. It has been suggested that an alternative way of ensuring acceptable impacts on the appearance of streets and places as a result of window or wall mounted air source heat pumps would be to provide a minimum separation distance between air source heat pumps as opposed to a per-property number limitation. Do you think the minimum distance, enforced on a first come, first served basis would be a better approach. If so what should the minimum separation distance between air source heat pumps be? 37. Are the proposals for roof mounted air source heat pumps sufficient and do they adequately protect against adverse visual impacts and the effects of noise? 38. Are the thresholds indicated for biomass installations sufficient to provide for operational units and safeguard the appearance of the local area? 39. Are you content that permitted development rights for anaerobic digestion installations be restricted to agricultural and forestry land holdings where the fuel is sourced on-site? Yes, it seems sensible, given the nature of the feedstock and waste products, that PDR for anaerobic digestion installations is limited to agricultural and forestry land holdings. 10

11 40. Given the number of components which are required to make an operational micro hydro scheme and the variability of the nature of invasiveness of each individual scheme is there sufficient value gained in granting permitted development for one part of the scheme given that planning permission would be required for the remainder of the scheme? 41. Is the proposed condition on the removal of equipment sufficient to safeguard against inoperative microgeneration equipment effectively becoming redundant clutter within the built environment? 42. Do you think that it is appropriate for the internal noise threshold should be extended to all buildings where people are expected to sleep? 43. Are you content that the proposed order would not have any adverse impact on particular sections of Scotland s society? 11

12 ANNEX Permitted Development and SSSI legislation in Scotland For SSSIs, the relevant piece of legislation is s17(1)(b) of the Nature Conservation (Scotland) Act 2 : 17 Operations by owners or occupiers of sites of special scientific interest: authorised operations (1) SNH s consent under section 16 is not required in relation to the carrying out of an operation requiring consent (a) in respect of which permission has been given by a relevant regulatory authority in accordance with section 15, (b) which is authorised by a planning permission granted on an application under Part III of the Town and Country Planning (Scotland) Act 1997 (c. 8), (c) which is an emergency operation particulars of which (including details of the emergency) are notified to SNH as soon as practicable after the necessity for the operation becomes apparent, (d) in accordance with the terms of a management agreement between SNH and the person carrying out the operation or causing or permitting it to be carried out, or (e) which is carried out as required by a land management order. Explanatory note to the 2004 Act includes the following: Section 17 Operations by owners or occupiers of sites of special scientific interest: authorised operations 132.Subsection (1) specifies the particular circumstances in which a private owner or occupier does not require SNH's consent before carrying out an ORC. These are effectively situations in which consent has already been given via another route, or where action is necessary in an emergency. The particular circumstances are where:... explicit planning permission has been granted. Again, SNH advice is taken into account by the planning authority and separate permission from SNH for the operation is not required by this subsection. It should be noted that this exemption applies only to the explicit grant of planning permission and does not remove the need to obtain SNH permission for an operation undertaken as a permitted development for which planning permission is not needed;