Legal challenge against new ‘wild land’ wind farm refused

Danish billionaire and landowner Anders Povlsen, director of Wildland Limited, which owns the Ben Loyal, Kinloch and Hope and Melness estates, lodged a petition seeking to reduce a decision of the Scottish Ministers to grant consent under section 36 of the Electricity Act 1989 and deemed planning consent under section 57(2) of the Town & Country Planning (Scotland) Act 1997 for the Creag Riabhach wind farm on the Altnaharra estate in Sutherland.

However, a judge in the Court of Session ruled that there was “no error of law” in the way ministers reached their decision or in the way they expressed their reasons.

Lord Boyd of Duncansby heard that the proposed development would comprise 22 wind turbines with a maximum tip height of 125 metres and a generating capacity in excess of 50MW, with five of the turbines to be erected within a designated wild land area.

With the exception of the wild land area the site was not subject to any environmental designations, but the immediate and wider surrounding areas included sites of special scientific interest, a special area of conservation, special protection areas, national scenic areas and special landscape areas.

In accordance with their obligations under schedule 8 to the Electricity Act and the Electricity (Applications for Consent) Regulations 1990 Scottish Ministers required to notify the local planning authority, the Highland Council (THC) and consult with Scottish Natural Heritage (SNH) and the Scottish Environmental Protection Agency (SEPA).

The petitioner objected to the proposal, as did Scottish Natural Heritage (SNH) and the John Muir Trust, but the Highland Council (THC) decided not to object following a report to it by its Head of Planning and Building Standards.

The decision letter, which recorded the details of the proposal, the application history and the decision not to hold a public inquiry, stated “that significant impacts on the physical attributes of the wild land area will be limited in extent relative to the scale of the wild land areas” and that the effects on the wild land area could not be overcome by further re-design or re-siting of the turbines.

It was also acknowledged that the siting of the five turbines in the wild land area ran “contrary” to particular planning policies, but taking into account the contribution to renewable energy targets and net economic benefits, the ministers concluded that in the circumstances and in the context of the competing policy considerations the “balance of benefit is in favour of the grant of consent”.

The petitioner argued that the Scottish Ministers “failed to give proper adequate and intelligible reasons”, first, in respect of the rejection of SNH’s advice in respect of landscape and visual impact, and secondly, in relation to the special protection to be afforded to areas of wild land and the circumstances in which development was acceptable.

But the judge dismissed the petition after ruling that it could not be that the decision failed to leave the informed reader, and the court, in no real and substantial doubt as to what the reasons for the decision were and the material considerations which were taken into account in reaching it.

Lord Boyd of Duncansby said: “In my opinion, looking at the letter as a whole it cannot be said that Scottish ministers have failed to give proper, adequate and intelligible reasons for reaching their conclusion in respect of landscape and visual impact.

“The fact that ministers have preferred the views and opinion of THC to those of SNH cannot be a matter of criticism, provided that ministers have given proper, adequate and intelligible reasons in reaching their decision.

“Given the relatively brief nature of the advice from SNH, the fact that their views were taken into account in THC’s appraisal, the comprehensive nature of that appraisal and the clear and cogent terms of the decision letter I am not satisfied that there was in this case any obligation to separately set out reasons for not accepting the advice from SNH.”

This was the first time that permission had been granted for commercial scale wind turbines within wild land and SNH submitted that ministers failed to consider the “negative effect” of the development and argued that there was a need for “consistency” in decision-making.

But the judge said the issue was “not whether the decision was inconsistent with another decision but whether the respondent had left out of account a material consideration”.

He continued: “Apart from pointing out that the earlier decisions were refusals and that this was the first one where permission had been granted, where there had been considerations of wild land, the petitioners have not put forward any particular reason for suggesting that these decisions were material considerations in this case.”

The developments were of different sizes, in different locations, each with their own location specific issues and environmental statements and the potential impact on wild land and the potential benefits of the developments “will differ one from the other”.

The judge said: “It is not for the court to make assessments as to why decisions on individual applications might reach different results. These are planning judgments for ministers on the facts of each case applying the policy in force at the time.”

In his written opinion, Lord Boyd concluded: “The reasons for granting permission are set out at length in the decision letter. Ministers acknowledged the conflict with wild land policy, limited as it was, and struck a balance with other competing policies. In doing so they appraised the negative impacts against the benefits they perceived flowing from the development. Having gone through that process, Ministers reached a planning judgement taking into account all material considerations.

“In my opinion, there is no error of law either in the way in which they reached their decision or expressing their reasons for it. In short the petitioners’ position appears to be that no windfarm development whatsoever should be allowed on designated wild land areas. That may be, but that is a political decision and not one for the courts.”