Estate owner’s application for protected expenses order refused in judicial review challenge to wind farm development

A judge in the Court of Session ruled that, having regard to the petitioner’s financial position, the proceedings would not be “prohibitively expensive”.

The petitioner J Mark Gibson, a chartered surveyor, is seeking judicial review of a decision of the respondents, the Scottish Ministers, not to hold a public inquiry and to grant consent to the interested party Scottish Power Renewables (UK) Ltd for the construction and operation of Dersalloch Wind Farm, located about 4km east of Straiton in South Ayrshire.

The petitioner seeks declarator that the decision in July 2014 was “ultra vires” of the respondents, that it proceeded “under error of law” and was “unreasonable”. He also seeks reduction of the decision and expenses.

Lord Matthews heard that the petitioner lived at the category A listed Craigengillan House on the Craigengillan Estate at Dalmellington in Ayr, which was included in Historic Scotland’s “inventory of gardens and designed landscapes in Scotland” and was approximately 4.2km from the wind farm development.

It was averred that a number of parties objected to the development, including South Ayrshire Council, East Ayrshire Council, local community councils, bodies known as Save Straiton for Scotland and VisitStraiton, as well as Historic Scotland.

However, it was the petitioner himself who raised the judicial review proceedings after East Ayrshire Council, which had challenged the decision to grant consent for the development and the decision not to hold a public inquiry, later decided to withdraw.

The case called before Lord Matthews on the petitioner’s motion for a protective expenses order under Rule of Court 58A.3, limiting his liability in expenses to the respondent and interested party to a cumulative total of £5,000 and limiting the liability of the respondent and interested party in expenses to the appellant to £30,000.

The judge explained that there was no dispute about the petitioner’s interest in the subject matter nor was there any suggestion that the proceedings had no real prospect of success. The only issue was whether the proposed proceedings were prohibitively expensive for the applicant.

The petitioner’s financial position was set out in an affidavit, which explained that he owned the estate and farmed the land with a sheep enterprise producing organic lamb.

Over the last 15 years compatible enterprises – all part of the single business asset of Craigengillan – had developed, including a riding stable and the restoration of two cottages for holiday letting, the income from which contributed towards the annual running costs of the estate.

The court was told that the likely cost of the case was £173,000 and the petitioner stated that “a very significant proportion” of the land would have to be sold to cover the anticipated cost of the litigation, “substantially undermining its historic integrity and financial viability” and “breaking up” what he was planning to preserve and enhance.

The petitioner’s annual accounts and pension arrangements were also referred to, but the judge held that the pension fund could not be “ring fenced” from his consideration of the petitioner’s financial position.

“If the funds which are represented in it were to be found in a savings account I have no doubt that they would have to be taken into consideration,” Lord Matthews explained.

It was submitted that there was “no scope” to raise funds by selling the estate or breaking it up and that in any event it would be “contrary to the interests of justice” to sell part of the estate.

The petitioner’s bank would not provide him with further sums on the security of the property to meet any potential legal expenses, but in any event, it was argued that he should not have to borrow on the security of his property, nor should he be required to sell any property that was part of his home or main business interests.

However, the judge ruled that the petitioner had not established that he would be unable to meet the expenses when looking at his assets “as a whole”.

In a written opinion, Lord Matthews said: “It is not clear to me that the judicial expenses would require to be met wholly from one source. Doubtless the risk of incurring a six figure sum in judicial expenses is a disincentive to proceeding but that is not the test. Having regard to the petitioner’s financial position as a whole I am not satisfied that he has made out that he could not reasonably proceed with the proceedings in the absence of a protective expenses order and the motion is refused.”