Approval of the environmental, transport and construction plan (MTA plan) and detail plan is a condition for commencement of construction of a wind power project. These plans describe the final technical solution of the project and how the project is planned to be carried out. Furthermore, they shall ensure that the requirements in the license and the environmental information from the impact assessment are being sufficiently fulfilled. The plans must be approved by the Norwegian Water Resources and Energy Directorate (NVE).
Changes after the license decision
The final technical solution is rarely definite when the facility license is granted. The technical solutions of wind turbines are being developed quickly and new and larger turbines are made available to the market on an ongoing basis. If the progress of the project developer's internal planning and NVE's case handling is slow, there may be deviations between the technical solutions outlined in the facility license and those outlined in the MTA plan. If so, the question is whether a new impact assessment is required. The impact assessment is valid for minor deviations because these deviations do not significantly alter the impacts on the environment. However, in the event of significant changes, the new solutions must be assessed towards the current impact assessment, and additional investigations may be required.
Approval of the MTA plan is an administrative decision, but other parties than the project developer are, however, normally limited to appeal the MTA plan in the event of provable deviations between the facility license and the MTA plan. Nevertheless, the rights of the licensee are fixed. Complaints concerning the MTA plan shall not affect the actual license decision.
Complaints concerning the MTA plan
The approval of the MTA plan is occasionally appealed by other parties than the project developer. Lately, increased turbine height has been the subject of several complaints, a change that has not been considered to trigger the requirement of a new impact assessment. Increased turbine height and rotor length results in increased power production without the environmental intervention becoming particularly more extensive. However, the wind turbines can become somewhat more visible in the local environment.
In the case handling of the complaints, the NVE or the Ministry of Petroleum and Energy (MPE) have in some cases granted the complaint a suspensive effect, meaning that the project developer cannot initiate commencement of construction before the complaint is settled. This practice deviates from the general main rule in Norwegian administrative law stating that complaints to an administrative decision shall not be given suspensive effect. Since the actual license decision nevertheless is fixed, we believe that the project developer at least should be able to initiate commencement of construction of the parts of the plant that are not appealed.
What should the developers do?
We recommend the project developers to be aware of any changes that may be relevant at a later stage when the technical solution is described in the facility license application. For example, increased turbine height should be taken into account, and, thus, be considered already in the impact assessment. Such practice from the project developers avoids that deviations from the facility license must be investigated and might be subject to administrative complaints. In the event of greater deviations, additional assessments should be carried out and provided the NVE when handling the MTA plan. An alternative solution might be to get parts of the MTA plan approved, such as internal grid solution and road construction within the license area of the wind farm, so that only parts of the project are stopped if a complaint is given suspensive effect.