Inner House rejects appeal against refusal of permission for North Lanarkshire energy-from-waste development

North Lanarkshire Biopower Ltd had proposed a development at a pre-existing site in Carnbroe, North Lanarkshire. In making their decision the respondents, the Scottish Ministers, disagreed with the findings of their reporter, who had recommended that the appeal be allowed.

The appeal was heard by the Lord President, Lord Carloway, sitting with Lord Turnbull and Lord Pentland. The appellants were represented by J de C Findlay QC and Colquhoun, advocate, and the Scottish Ministers by McKay QC.

Change of use

The proposed development was to be located on a 3.6-hectare site on the north side of the A8 at which the appellants already operated a waste management facility. The eastern boundary of the site was a railway line, on the other side of which was a site for which there was planning permission for a 400 dwelling residential area.

Under the appellants’ plans, the waste management facility would undergo a change of use to the processing of only pre-treated residual waste. This would involve the construction of new buildings closer to the proposed residential site and an increase in the volume of waste processed per annum from 24,000 tonnes to 204,000. The application was refused by the planning authority on the grounds of air pollution and visual intrusion. An appeal was duly made against the decision.

The respondents’ reporter recommended the appeal be allowed. Regarding the application as a new one rather than a variation of the existing permission, he considered that there was support for the application in the local development plan and that visual, air quality, and health impacts would be within acceptable limits.

On 18 May 2020 the responsible Minister emailed his officials that he was “not minded” to accept the reporter’s recommendation to allow the appeal for four reasons. These were that the application was not a variation on the existing permission, that an 80-metre chimney stack would “dominate” the surrounding landscape, that it was unacceptable for the stack to be so close to residential housing and that the development was not an energy-from-waste plant as there was nothing in the application to use the residual heat for anything.

The appellants contended that, while only one of these reasons was reflected in the ultimate decision letter of 3 November 2020, it had been based on all four reasons, three of which were unlawful. It was irrelevant whether the application was a variation or a new application. Further, it was incorrect to state that the proposed distance of the stack from the residential development was impermissible and that the development was not an energy-from-waste plant.

One fundamental reason

Giving the opinion of the court, Lord Carloway began by noting: “Nothing which has been said by the appellants detracts from the simple fact that the respondents’ decision, and the reasons for it, are contained exclusively in [the] decision letter. The reasons are not challenged. On that simple basis the appeal must be refused.”

Addressing the relevance of the May email, he said: “The appellants recovered the email of 18 May from the Minister’s Private Secretary to the respondents’ planning officials. This set out the Minister’s thinking at that time; presumably following [a] scheduled meeting. It gives four reasons behind that thinking; that the Minister was ‘minded’ to refuse the appeal. That may be interesting background, but these were not the reasons why the Minister, as the delegate of the respondents, did in fact refuse the appeal several months later.”

He continued: “The Minister may have had four reasons in mind at some point earlier in the process, but those did not form part of the eventual decision. There is nothing unusual about that. If one or more of these reasons was considered unlawful or otherwise bad, the Minister’s officials might have been expected to advise him to that effect, and the Minister would have had to put them out of mind.”

Lord Carloway concluded: “[The] letter contained one fundamental reason for refusal of planning consent. That was that the respondents disagreed with the reporter in balancing the adverse visual impact with the other factors for and against the proposal. The Minister endorsed the refusal of the appeal for that reason and that reason alone. There is no ground for a contention that, in so doing, the Minister took into account any irrelevant consideration or failed to have regard to a relevant one. The considerations are those, and only those, in the decision letter itself.”

For these reasons, the appeal was refused.