Outer House judge rejects conservation organisation’s challenge to planning permission for Scottish space port

Wildland Ltd challenged the respondent’s decision to allow a planning application by Highlands and Islands Enterprise, which appeared as an interested party, for a vertical launch space port along with a control centre, access road, and associated infrastructure.

The petition was heard by Lord Doherty in the Outer House of the Court of Session. The petitioner was represented by MG Thomson QC and Van der Westhuizen, advocate, and the respondent by Burnet QC. J Findlay QC and N McLean, solicitor advocate, appeared for the interested party.

“Salami slicing” of application

The proposed development, to be known as Space Hub Sutherland, was described as a dedicated facility for the vertical launch of vehicles to deliver small satellites into orbit around the planet. The proposed site was located on the A’Mhòine peninsula, covering an area of approximately 310 hectares including infrastructure. It was indicated by HIE that visitor facilities were intended to be placed on or near the site at a later time.

HIE’s application was granted by the respondent on 5 August 2020. The petitioner, who controlled land adjacent to the site, objected to the proposed development along with other bodies including Scottish Natural Heritage and the RSPB. In its objections, the petitioner raised issues including visitor management and ornithological issues.

It was contended by the petitioner that the respondent had erred in law when granting permission in that it had failed to consider the environmental impact of the proposed visitor facilities on the site and whether the applicant was able to implement an appropriate management plan as required by a condition of the grant. Other issues raised included whether the respondent had failed to secure the implementation of measures to mitigate effects of the development on ornithological interests and to consider the potential legal consequences arising from the disturbance of certain bird species contrary to the Wildlife and Countryside Act 1981.

Counsel for the petitioner submitted that the respondent had erred in its approach to the application in that it failed to treat the space port and visitor facilities as a single integrated development. It had not been alive to the danger of the “salami slicing” of applications for development, especially given that the size, nature, and locations of the visitor facilities had not yet been identified by HIE.

No error of law

In his decision, Lord Doherty began: “In my view this is not a case where there has been salami slicing of a project which ought to have been assessed as a single development.  On the contrary, there is a rational justification for not identifying the proposed location of visitor facilities and for not applying for permission to develop them at this stage.”

He continued: “Until the size of the launch exclusion zone is clarified there is obvious uncertainty about appropriate locations for visitor viewing areas or car parking.  It was not sensible for the petitioner to attempt to identify such locations.  Nor was it sensible to seek planning permission for their development, or to include an assessment of their environmental impacts as part of the present application.”

Considering the ornithological interests, Lord Doherty said: “Assessment of the mitigation proposed in the Environmental Impact Assessment Report, including its sufficiency, was a matter of planning judgement for the respondent.  I am not satisfied that the respondent erred in law in exercising that planning judgement.”

He went on to say of the 1981 Act argument: “The possible effect of the breeding season was a matter which SNH and the respondent considered, but neither concluded that it ought to prevent the grant of planning permission subject to the recommended conditions.  In my view no error of law on the respondent’s part has been established.”

Addressing whether the court should exercise its discretion and reduce the decision, Lord Doherty noted: “Since I have held that none of the grounds of challenge is well founded it is unnecessary to answer this question, and I do not propose to do so.”

For these reasons, the petition was refused.