JUNE/JULY 2013 | £5.25 - Wind Energy Network

legal eaglesRecent Planning Problems impactingon Land based Wind TurbinesPlanning problems continue to impacton the placing of land based windturbines as can be seen from thejudgement of the Administrative Courton 15th April 2013 whereby RWENpower Renewables Ltd succeededin its claim for judicial review of MiltonKeynes Councils SupplementaryPlanning Document (SPD).The SPD attempted to fix minimumseparation distances between windturbines and residential properties thatwere different from those already set outin the local plan. The Court quashedthe entire SPD (even though parts of itdelineating spacing between turbinesand bridleways and footpaths was not inconflict with the local plan). The Councilhave indicated that they are appealing thedecision, so it isn’t over yet.RWE pointed out to the Council that itsSPD conflicted with the Council’s localplan and also with government policy.RWE’s claim for judicial review beforethe Court succeeded on a single ground,namely that the distances set out inthe SPD were in conflict with the localplan and such a conflict is a breach ofregulation 8 (3) of the Town and CountryPlanning (Local Planning) EnglandRegulations 2012 which states that anypolicies in an SPD must not conflict withan adopted development plan. There wasa conflict between some of the spacingrequirements in the SPD and the adopteddevelopment plan so the entire SPD wasquashed.Other key findingsWhether or not there is conflict in aparticular case is determined by a testof – would a reasonable council concludethat the SPD was not in conflict withthe local plan? Therefore it is not a purequestion of interpretation for the Court.The provisions of the TCP Regulations2012 defining which documents amountto SPDs and which local plans wereextremely hard to interpret. The questionof whether the document should havebeen adopted as a development planningdocument (and therefore subject toindependent examination in public andassessment of its “soundness”) ratherthan as an SPD was not one for theCouncil’s discretion.In adopting the SPD the Council had takenproper account of substantive nationalplanning policies which give strongencouragement to wind energy. Thewording of the SPD did not prevent theCouncil from assessing the acceptabilityof visual and noise impact of wind turbineson a case by case basis.CommentThe case raises important issues aboutcompliance of SPDs with adopted localand national policies.It also illustrates the tensions between theNational Planning Policy Framework whichhas a presumption in favour of sustainabledevelopment and the Localism Act 2011which gives local authorities more flexibilityin relation to local plans.Gareth HeveyDenison Tillwww.denisontill.comAre you looking for a specialistservice supplier with experience inthe wind energy industry?With 1200+ companies listed, it is the websiteto find an expertTheCommunicationHub for theWind EnergyIndustrylegal eaglesto foresee or not toforeseeExploring the complexity of delays in theoffshore environmentThis article touches on the variouschallenges encountered in theanalysis of a contractor’s contractualentitlement to extensions of timeand additional costs incurred duringthe offshore installation of monopilefoundations to an offshore wind farm.LiabilityMore importantly, this article highlightsissues concerning where liability lies inrelation to delay events and additional costs,and may provide some food for thoughtwhen drawing up conditions of contract forfuture installation works. Despite numerouspages of conditions, lengthy schedulesand extensive employer’s requirementsincorporating innumerable appendices,annexes, technical requirements, andresponsibility matrixes the answers tocertain practical issues may not always beimmediately apparent.An exampleConsider a contract where the employerprovides and makes available installationvessels free of charge in accordance withthe scope of supply and as defined in theemployer’s requirements, to enable thecontractor to execute the works.In the event that the vessels are not insound operational condition, safe and fitfor use as set down in the contract or theemployer was otherwise in breach of itsobligations, then the contractor was entitledto give notice and apply for an extension oftime to any key date and/or of the time forcompletion and also payment of additionalcosts, subject to other criteria on timing ofsubmissions and form being met.This is mirrored under the extension of timeclause which provides that the contractormay claim for an extension of time if theworks are or will be delayed by a breachor default by the employer in providing theinstallation vessels. There’s nothing unusualin any of that you may say.ResponsibiltyMoreover, the contract also requires thatthe employer shall be responsible forensuring that the employer’s personnel andthe employer’s other contractors on the sitecooperate with the contractor’s efforts.A further contractual provision obligesthe contractor to afford appropriateopportunities to the employer’s personnel,other contractors employed by theemployer, and the personnel of any legallyconstituted public authority to carry outwork. However, it also provides thatany such opportunity shall constitute avariation if and to the extent that it, or thecost incurred by it, were ‘unforeseeable’.The contractor argued that it was notforeseeable that it would be delayed asa result of various matters notified to theemployer; and if the employer did notaccept that there had been a variationthen any changes to the employer’srequirements or the works (scope and/or method of working) would amountto a breach of the contract or defaultthereunder by the employer and/ordelay, impediment or prevention causedby or attributable to the employer, theemployer’s personnel, or the employer’sother contractors on the site.Recognition of ‘unforeseeable’Whilst recognising that responsibilityfor adverse weather and all mechanicalbreakdowns to the installation vesselsincluding amongst others, hydraulicleaks, crane breakdowns, and leg jackingproblems and the demonstrated criticaldelay to the schedule of installation restswith the employer, the liability for otherclaimed delays was not so clear cutand more precisely, could not be readilyconsidered as ‘unforeseeable’.The term ‘unforeseeable’ was simplydefined as meaning not reasonablyforeseeable by an experienced contractorby the base date. Clearly this is notparticularly helpful.Now consider the followingdelaying events…• Compliance with the directions of suchpersonnel as the marine warrantysurveyor• The vessel master and the liftingsupervisor on the employer’s vesselsor the harbour authoritiesAlso consider…• Crew changes by the vessel operator• Jacking down for bunkering of fuel orwater• Rest periods by the vessel engineer• Loading of stores and spare parts inport• Waiting on ferry traffic or the harbourpilot• Or even waiting for the arrival of themarine mammal observer to board theinstallation vesselAll of the foregoing matters could beconsidered as ordinary everyday activitiesassociated with the running of a vessel ona 24/7 basis. Arguably, waiting on porttraffic in a working port environment is astoppage which is neither unexpected nor‘unforeseeable’.Other considerations?Should such activities be viewed asexamples of delay, impediment orprevention attributable to the employer,the employer’s personnel, or theemployer’s other contractors on the siteand should such operations be consideredas a variation or as giving rise to anextension of time and additional costs?ClarityAs in all such matters the answers shouldlie in the express contract wording.Clarity in the drafting of the conditions ofcontract should prevail to ensure all partiesrecognise where the liability for delayingevents and the financial consequences fall.Michael TurgooseDriver Trett UKwww.drivertrett.com88 www.windenergynetwork.co.ukwww.windenergynetwork.co.uk 89