The Land and Environment Court of Appeal has ruled that an issue – on increasing the height of wind turbines at a wind farm in Ölme, Kristinehamn Municipality – could be adjudicated as a legal issue concerning a permit to change activities.
Eolus Vind AB has taken over a permit for 16 wind turbines with a maximum total height of 150 metres and has subsequently applied for a permit to change activities to allow the company to erect 13 wind turbines with a total height up to 200 metres in the same area. The application was granted by the County Administrative Board’s Environmental Review Delegation, but the decision was appealed by local residents to the Land and Environment Court. The Land and Environment Court decided to refuse the application on the grounds that increasing the height of the wind turbines cannot or should not be adjudicated within the framework of a permit to change activities, pursuant to the then Chapter 16, Section 2 (now Chapter 16, Section 2a) of the Environmental Code.
The grounds on which the decision of the Land and Environment Court is based specify that the Court lacked the prerequisites for applying Chapter 16, Section 2 of the Environmental Code, as, in the view of the Court, the application did not involve a change of activities but a new activity, and that such a limited adjudication was not appropriate in consideration of the impact of increasing the height of wind turbines at a wind farm.
The Court cited, inter alia, that the change of activities applied for entailed the replacement of the projected wind turbines at the wind farm with taller wind turbines; that hardly any parts of the activity, in an environmental perspective, are not involved in the change of activities; that most environmental issues assessed in the permit review had to be re-examined in the case of a permit for a change of activities and that, if the authorised wind turbines had already been erected, this would have excluded the establishment of taller wind turbines as applied for. In the light of this, the Land and Environment Court held that the application was intended to replace the licenced activities with brand-new activities and that the provision on permits ‘solely relates to the change’, i.e. that a permit to change activities pursuant to Chapter 16, Section 2 of the Environmental Code does not apply.
Furthermore, the Land and Environment Court stated that several suitability reasons spoke against adjudicating the application as a permit to change activities. In this respect, the Court also held that the changes applied for did not comprise a minor part, but ‘all of the licensed activities’. According to the Court, the circumstances which spoke in favour of the permit to change activities – such as rapid technological developments in the wind power industry and the short time that had elapsed from the licensing decision to the application for a permit to change activities – were not sufficient to offset the scope of the change.
Eolus Vind AB appealed the ruling to the Land and Environment Court of Appeal, which by means of its judgment on 5 October 2020 confirmed that the provision concerning permits to change activities is applicable to increasing of the height of wind turbines at a wind farm. The Land and Environment Court of Appeal explained that the purpose of the provision concerning permits to change activities, according to the preparatory works, is to make it possible to adjudicate an urgent and pressing change or enlargement of activities without burdening the adjudication with issues relating to system components that are not impacted by the change. Factors relevant to the suitability of the permit to change activities include the scope and environmental impact of the change, the length of time that has elapsed since the basic permit was issued, the speed of technological developments in the industry and how the undertaking and its surroundings have changed. Furthermore, the Court pointed out that the scope of the adjudication should be determined on the basis of what is necessary from an environmental point of view as a result of the change and that the licensing authority should receive a sufficient basis on which to prescribe the requisite terms and conditions from an environmental point of view.
In conclusion, the Land and Environment Court ascertains that the change to an activity may be assessed within the framework of an application for a permit to change activities in instances where it is possible, in an acceptable manner, to assess the environmental impact brought about by changing the activities within the framework of the application for change, provided that this is appropriate in consideration of the circumstances in general.
As the requested change to Ölme wind farm is not deemed to have adverse consequences that substantially exceed what was deemed acceptable in the original decision regarding the permit, the Land and Environment Court of Appeal, like the Environmental Review Delegation, considered that a new localisation review was not necessary. In view of this and of the fact that the existing permit in this case was issued relatively recently, in view of rapid technological developments in the wind power industry, the production increase rendered possible by the change, and in view of the fact that no significant changes have occurred in the surroundings, the Land and Environment Court found that the adjudication of the change pursuant to Chapter 16, Section 2 of the Environmental Code was possible.
The judgment of the Land and Environment Court of Appeal signifies a welcome clarification for the wind power industry.
The circumstances – as highlighted in the judgment of the Land and Environment Court as a reason for citing that increasing the height of wind turbines at a licensed wind farm cannot constitute a change of activity and are not suitable for adjudication within the framework of a permit to change activities – are notably, and to a great extent, typical for increasing the height of a wind turbines at a wind farm. Thus, an almost inevitable conclusion of the Land and Environmental Court’s decision to refuse the application has been that increasing the height of wind turbines at a licensed wind farm may never be adjudicated within the framework of a permit to change activities. As permits to change activities have become a commonly occurring method of adjudicating an increase in the height of wind turbines at a wind park, the judgment of the Land and Environment Court of Appeal confirms the adjudication prerequisites in several previously settled cases, as well as, above all, in ongoing adjudications – which had been put in precarious position by the decision of the Land and Environment Court.
The legal counsel for Eolus Vind AB was made up of lawyers Mikael Wärnsby and Sara Andersson, as well as associate Tor Pöpke.