Coutinho accused of acting ‘unlawfully’ over onshore wind decision

Energy secretary Claire Coutinho has been accused of acting “unlawfully” over her decision to exclude onshore wind from the national significant infrastructure project (NSIP) regime.

In particular, campaigners claim that Coutinho failed to engage with relevant material presented by the National Infrastructure Commission (NIC) during her decision making process.

Campaigners, who have lodged a legal challenge to the government’s “continued exclusion” of onshore wind from the NSIP regime, claim there is “no coherence” between this position and the UK’s net zero target.

The Good Law Project, which mounted the legal case that forced the government to rewrite its net zero strategy last year, has launched fresh action with solicitors Leigh Day over the exclusion of onshore wind from the National Policy Statement (NPS) for renewable energy.

The omission of onshore wind from the NPS, which came into force last week, means that such projects cannot be determined under the fast-track NSIP regime but by local councils instead.

In a letter, sent to Coutinho, Good Law says there is “no coherence at all between the continued exclusion (of onshore wind) and the net zero target”, referring to the government’s statutory 2050 emissions reduction goal.

The introduction of the net zero target in 2019, three years after the government removed onshore wind projects from the NSIPs, was a “significant change in circumstance that necessitates a ‘reconsideration’ of this exclusion”, it says.

The letter states that the omission of onshore will have consequences for the government’s ability to successfully mitigate and adapt to climate change.

And it says Coutinho acted unlawfully by failing to properly engage with a recommendation by the NIC to restore onshore wind to the list of NSIPs, which it describes as an “obviously relevant and material consideration”.

The nature and role of the NIC imposed a “clear obligation” on Coutinho, who the letter says took the decision to exclude onshore wind with a “closed mind”.

The secretary of state’s “failure to lawfully take account” of the NIC’s advice and give lawful reasons for rejecting it is one of the three grounds put forward for the action in the letter, which requests the immediate withdrawal of the onshore wind exclusion.

Emma Dearnaley, legal director of Good Law Project, said: “It’s hard to see how we will reach net zero without forcing the government to unleash the potential of onshore wind by removing all the barriers they have put up in front of it. If we need to take Ministers to court to do so, then we will”.

A spokesperson for the Department for Energy Security and Net Zero said that the government has “streamlined” the process for determining onshore wind applications, referring to recently introduced changes to the National Planning Policy Framework.

But Gary McGovern, a planning & environment partner at solicitors Pinsent Masons, said these changes “do not go nearly far enough and will not lead to many if any new onshore wind projects coming forward.”

He said: “There will be concern that we are potentially heading toward a further period of policy uncertainty at a time where we can least afford it.

“It has already taken more than two years from first publication of drafts to get the new NPS for energy infrastructure in place. That is far too long. Given the urgent priorities of energy security and net zero, it is critical to have an up-to-date suite of policies in place.”