Inner House dismisses appeal against windfarm application refusal

Judges in the Inner House of the Court of Session ruled that there was “no question of any illegality or procedural impropriety such as would justify quashing the decision”.

Lord Menzies, Lord Bracadale and Lord Malcolm (pictured) heard that the Loch Hill Windfarm (Scotland) Limited was seeking planning permission for an eleven turbine windfarm and associated development at a location near Lochinvar, some four kilometres north east of St John’s town of Dalry, but the application was refused by Dumfries and Galloway Council.

There were two reasons for refusal: the first being the landscape impact of the development; and the second was the cumulative visual impact, and specifically “visual confusion”, when viewed in combination with the adjacent Knockman Hill windfarm.

In this context it was said: “The differences in turbine size, rotor blade diameter and speed would result in visual discordance, significant in local range views, and notable in medium range views from the west, and to a lesser degree from the south west”.

After a public local inquiry the reporter agreed with the second reason for refusal and as a result Loch Hill’s appeal to the Scottish Ministers was refused, prompting an appeal to the Inner House.

On behalf of the appellant it was submitted that the reporter did not properly apply the statutory requirement that his determination be made in accordance with the development plan unless material considerations indicated otherwise.

It followed therefore that the decision was “ultra vires” and should be quashed.

It was suggested that had the reporter properly applied policy S21 - which provides that developments of this kind “will be considered positively provided that they do not have a significant adverse impact on …the amenity of the surrounding area” - he would have allowed the appeal.

The reporter focused on whether the environmental and cumulative impacts were within acceptable bounds, but this test did not appear in either policy S21 or the council’s interim guidance.

The sole reason for refusal was cumulative harm to visual amenity, but there was “no assessment as to the degree or extent of this harm”, it was argued.

It was said that the reporter “failed to analyse the relevant development plan policy” and failed to “weigh the extent of compliance or otherwise”.

The reporter’s reference to the relevant provisions of the development plan in its decision letter was described as “a lazy shorthand for the purported application of a policy to a set of conclusions about individual factors in the case which are internally inconsistent and therefore incoherent”.

On behalf of the Scottish Ministers it was stated that the decision had regard to relevant considerations, and, when read fairly, and as a whole, had proper regard to structure plan policy S21 and to the council’s interim planning policy, which specifically identified cumulative impact on visual amenity as a relevant consideration.

The Ministers argued that the reporter understood the legal test and the relevant policies, “applied them correctly” and provided “adequate reasons” for his decision.

It was submitted that the reasonable informed reader would be left in “no doubt” as to why the appeal was refused.

The judges refused the appeal for reasons which are “largely coincident” with the representations made on behalf of the Scottish Ministers.

Delivering the opinion of the court, Lord Malcolm said: “It is plain that, for all the reasons given in…the decision letter, the reporter concluded that the cumulative visual impacts were unacceptable, and that the benefits of the development, notably renewable energy generation, did not outweigh that detriment. No detailed analysis or quantification of impact was required… It was more than enough for the reporter to explain that in his view there was non-compliance with policy S21.

“In the present case there is no question of any illegality or procedural impropriety such as would justify quashing the decision. The relevant policies were addressed. The material considerations, both for and against, were identified and weighed against each other. Nothing of importance has been overlooked.

“A reasoned decision was compiled and forwarded to the parties. The statutory requirement to determine the appeal in accordance with the development plan unless material considerations indicate otherwise was applied.

“The reporter was fully entitled to conclude that the cumulative impact on visual amenity was sufficient to render the proposal contrary to the development plan, and that, in itself, this justified refusal of planning permission. In short, we can detect nothing which would even suggest that the reporter’s decision is susceptible to a successful legal challenge, hence the appeal was refused.”