Community interest company loses final challenge against grant of permission for windfarm near wildcat habitat

About this case:

• Citation:
  [2024] CSIH 39
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Malcolm

Wildcat Haven CIC, which opposed the proposed development by Vattenfall Wind Power Ltd at a site at Clashindarroch Forest in Aberdeenshire, argued that the decision of the Scottish Ministers failed to approach the question of mitigating effects to the wildcat population in the forest. The respondent and the interested party supported the decision of the lord ordinary and argued that the petitioners’ approach to the planning framework was not required to be adopted.

The appeal was heard by the Lord President, Lord Carloway, along with Lord Malcolm and Lady Wise. J d C Findlay KC and Colquhoun, advocate, appeared for the petitioners, Crawford KC and D Welsh, advocate, for the respondents, and Mure KC for Vattenfall as the interested party.

No more than disagreement

After a public inquiry following Vattenfall’s application for consent for the development in 2022, the reported recommended refusal of the application. This refusal was not based on the impact on the wildcat population but on its significant and unacceptable adverse effects on the surrounding landscape, particularly in relation to the views from the prominent hill known as Tap o’Noth and the Correen Hills. However, after a new series of planning policies were adopted in 2023, the inquiry was reopened, and a supplementary report recommended the application be granted.

The petitioners contended that the reporter failed to apply the mitigation hierarchy within policy 3(b)(iii) of National Planning Framework 4 in the correct manner. It introduced a significant innovation on the previous practice in that it required decision makers to take a sequential approach and prefer mitigation measures which avoid or minimise an environmental impact over those which seek merely to offset the impact. Had the reported applied the hierarchy properly, she might have assessed Vattenfall’s proposed measures as non-compliant with NPF4.

The lord ordinary disagreed with the petitioners’ contentions about the required approach to NPF4 and considered that neither the reporter nor the ministers had made an error of law. Counsel for the petitioners submitted that he had erred in determining that a sequential approach was not required. An approach which entirely discounted or ignored the avoidance or minimisation, and focused only on offset, was not in line with the sequential approach necessitated by the use of the word “hierarchy” and the illustration appended to the definition.

For the respondents it was submitted that the challenge amounted to no more than a disagreement with the ministers’ assessment of the proposal’s compliance with the policy. The lord ordinary correctly recognised that interpretation of the policy was a matter for the court. No set approach was required to the hierarchy, which was designed to be flexible rather than strict.

No significant impacts

Lord Malcolm, delivering the opinion of the court, began by observing: “It is clear that policy 3(b) of NPF4 introduced an important new requirement for major developments, including this one, namely to demonstrate a contribution to the enhancement of biodiversity. However, and contrary to the submission on which the petitioners’ challenge depends, there is nothing in the wording of policy 3(b) and Annex F, nor in anything else, which signals the suggested material change in the mitigation strategy nor in how potentially significant adverse environmental effects are to be assessed and dealt with by decision makers.”

He explained further: “Standing the finding that the windfarm development as approved will have negligible adverse effects on the wildcat population, it would be remarkable if nonetheless it was open to challenge because of wildcat issues. The decision was that there will be no significant impacts, so the discussion as to the weight to be given to avoidance as opposed to other measures is of little practical relevance.”

Noting that matters of planning judgment were not for the court, Lord Malcolm said: “The significant new issue for the reporter arising from NPF4 policy 3(b) was whether the proposals went beyond mitigation and offered biodiversity enhancement consistent with policy 3. The answer was that, with appropriate revisions to the conditions attached to the consent, this could be achieved. There was no reason for the reporter to revisit her conclusions on the mitigation of potential adverse impacts set out in her first report.”

He concluded: “Though not expressed in such blunt terms, the petitioners’ argument amounts to a plea that the potential for disturbance of wildcat should in itself have been considered as a possible reason for refusal without consideration of how this might be addressed by mitigation measures. There is no warrant for this in the terms of NPF4 which, in accordance with well-established practice, requires a careful identification of a development’s potential negative impacts on biodiversity and an assessment of whether mitigation measures will reduce them to acceptable levels.”

The reclaiming motion was therefore refused.