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Pursuant to a decision of 9 March 2021, the Danish Spatial Planning Complaints Board (in Danish: “Planklagenævnet”) decided to repeal the planning basis for and the environmental assessment report of the wind farm Thorup-Sletten – currently the largest operating onshore wind farm in Denmark. The Complaints Board found that assessment conducted by the relevant municipalities of the implications of the project on certain birds designated to the neighboring Natura 2000 site insufficient. The decision gives ground for uncertainty in respect of the project and together with a number of other recent rulings increases uncertainty in relation to onshore wind projects in Denmark more generally.
The Danish Spatial Planning Complaints Board (in Danish: “Planklagenævnet”) has pursuant to decision of 9 March 2021 decided to repeal the planning basis (local plan and addendum to the spatial plan) and the environmental impact report of the Municipality of Jammerbugt and the Municipality of Vesthimmerland for the wind farm Thorup-Sletten.
The wind farm Thorup-Sletten is currently the largest onshore wind farm in Denmark consisting of 18 wind turbine generators with a total capacity of 77.4 MW. The wind farm was connected to the grid in February 2020 and has been in full operation since September 2020.
The Complaints Board has repealed the planning basis and the environmental impact report with reference to the fact that the Complaints Board finds that the assessment conducted by the municipalities of the implications of the project on the neighboring Natura 2000 site is insufficient.
More specificly, the Complaints Board finds that the assessment conducted of the implications on the neigboring Natura 2000 site is insufficient, as it does not contain complete, precise findings and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the project on certain birds designated to the neigbouring Natura 2000 site – the western marsh harrier (in Danish “rørhøg”) and the hen harrier (in Danish: “blå kærhøg”). Furthermore, the Board argues that the implications of the project on bird life in the area have not been appropriately assessed.
The Natura 2000 sites are designated as special protection areas pursuant to the Habitats Directive[1] and the Birds Directive[2], and the project is situated within 100 meter from the nearest Natura 2000 site (N16).
The Complaints Board stresses that a project can only be authorized if the competent authority is able to determine that the project will not adversely affect the integrity of the Natura 2000 site, which requires that no reasonable scientific doubt remains as to the absence of such effects.
The decision by the Complaints Board includes guidelines in respect of any new environmental impact assessment and planning process.
The wind farm has been in operation since 2020. As complaints regarding the planning basis, permitting and environmental assessment reports do not as a default have suspensive effect, the erection and commissioning of the wind farm Thorup-Sletten has been possible.
The decision of the Board, however, gives rise to uncertainty concerning the future of the wind farm. In consequence of the repeal of the planning basis for the project, the legal basis for the permission of the project has disappeared.
The repeal may not necessarily involve a risk in respect of the existence of the wind farm as such. If possible, the municipalities will in all probability remedy the defects, adopt the necessary planning basis and issue a new EIA approval for the project in order to legalize the project. However, it will be a precondition that the appropiate assessment pursuant to the guidelines set out in the decision of the Complaints Board is carried out, which will presumably be rather time consuming. The question is whether the municipalities will suspend the operation of the wind farm until the new planning basis has been procured. This would of course involve a production loss for the project owners.
Furthermore, it should be noted that, based on the precautionary principle, which plays a central role in the management of Natura 2000 sites, the municipalities would be required to reject the project if certainty that the project will not harm the neighboring Natura 2000 sites cannot be obtained based on a new environmental assessment report. Such outcome could ultimately entail a requirement for demolishing the wind farm.
The response to the decision from interest groups include frustrations concerning the Complaints Board’s long processing time. The planning basis for the project Thorup-Sletten was adopted in 2018. Pursuant to the information of the Danish Spatial Planning Complaints Board, the processing time has now going forward been reduced significantly as the Board has processed a large stockfile of old cases.
In November 2020, the Danish Spatial Planning Complaints Board repealed the planning and the environmental assessment of the Municipalities of Aalborg and Vesthimmerland for the project Nørrekær Enge II. The Complaints Board found that the municipalities had not made an appropriate assessment of the implications of the project on certain bats (in Danish the type “damflagermus”) designated to the neighboring Natura 2000 site, and that an appropriate assessment of the effect on the Natura 2000 site had to be carried out.
In two decisions from December 2020 published by the Danish Environmental and Food Complaints Board (in Danish “Miljø- og Fødevareklagenævnet”) concerning complaints in respect of an EIA permit for a wind project in the Municipality of Brønderslev and an EIA permit for a wind project in the Municipality of Ringkjøbing-Skjern, the Complaints Board amended the relevant EIA permits, including an obligation concerning shutdown of the wind turbine generators (in one case only in respect of a single wind turbine generator). The wind turbine generator(s) were to be shut down at low wind speed (under approximately 5-6 m/sec) during periods with high insect concentration at the wind turbine generators (the period from 15 July to 15 October). The obligation to shutdown was included with the intention of the Board to protect the bats in the area of the relevant sites.
In both decisions, the Board overturned the assessment of the municipalities that the project would not have a negative effect on the breeding areas and resting places for bats.
The latest decisions from the Complaints Boards indicate an increased focus by the Complaints Boards on the protection of wild life in connection with planning and permission of wind projects. This should be considered when assessing the risk of complaints and ongoing complaints in connection with potential investments in wind projects in Denmark.
The decisions further demonstrate the complexity and the schism between the mitigation of the climate change through development of renewable energy sourses and the mitigation of the biodiversity impacts associated with such developments.