Petition for judicial review of decision to refuse planning permission for new wind farm dismissed

A company behind a proposed new wind farm which challenged a decision to refuse planning permission for the development has had a petition for judicial review dismissed.

A judge in the Court of Session refused the petition by Glenmorie Wind Farm Limited, which challenged a decision dated 21 August 2014 of the first respondents, the Scottish Ministers, adopting the recommendation of their reporter, dated 8 May 2014, to refuse the petitioner’s application for planning permission to build 34 wind turbines in Easter Ross, north of Inverness.

Lady Wise heard that the petitioner’s application for consent under section 36 of the Electricity Act 1989 for the construction and operation of Glenmorie Wind Farm was made on 10 November 2011.

On the same date the petitioner submitted an appropriate environmental statement.

In addition to representations by the local planning authority, Scottish National Heritage (SNH) and the Scottish Environmental Protection Agency (SEPA), 248 public representations were received in respect of the said application – 200 objections and 38 in support.

In particular, Highland Council objected to the application and in accordance with paragraph 2 of schedule 8 to the 1989 Act a public local inquiry was held, following which the reporter submitted her report to the Scottish Government.

One of the contentious issues at the inquiry was the proximity of the proposed development to areas of “wild land”.

A policy in relation to wild land had been developing over a number of years and continued to develop at the time that the report was being submitted to ministers.

In June 2014 a new national planning policy – SPP 2014 (SPP2) – was published, which included a new national policy on the issue of “wild land”.

Accordingly, the petitioner’s application was still pending when that policy was adopted, which was after the receipt of the reporter’s report but before the decision letter of 21 August 2014.

The reporter’s recommendation was based on her conclusion that the proposed wind farm would have significant adverse environmental impact both alone and cumulatively and that it would conflict with aspects of national planning policy.

Senior counsel for the petitioner developed the three possible grounds for review of the first respondent’s decision: the first was that of “procedural unfairness, breach of natural justice and denial of legitimate expectations”.

It was argued in the note and in oral submissions that it was “procedurally unfair” for the first respondent to proceed to determine the petitioner’s application without giving consideration to the petitioner’s response to the publication of SPP 2014 and the relevant SNH 2014 map of wild land areas.

The second challenge was based on an argument that the first respondent had left “material considerations” out of account and had given “inadequate reasons” for the decision.

It was argued that having relied on the reporter’s description of the implications for wild land that related to what was effectively the superseded search areas in terms of the new policy SPP 2014, there had been a failure to consider the petitioner’s valid concerns as to the veracity of the SNH mapping exercise.

The final ground of challenge was the reporter fell into error by adopting an “inconsistent approach” when considering on the one hand the impact on landscape character of the proposed development and on the other the cumulative impact.

While it was acknowledged that the reporter was generally aware of the existence of other constructed and consented wind farms in the area, it was submitted that she made a “methodological error” by omitting to consider the influence of those wind farms upon baseline landscape character.

However, the judge rejected the three challenges against the refusal and dismissed the petition after ruling that she could detect “no procedural unfairness, illegality, lack of reasoning or methodological error that might justify reducing the decision”.

In a written opinion, Lady Wise said: “The reporter’s analysis was comprehensive, well explained and reached after obvious careful consideration of both the submissions made to her and the accompanied and unaccompanied site visits she undertook.

“The first respondents were in turn entitled to rely on the substantial body of work the reporter had undertaken in reaching her conclusions and recommendations in making their decision. Nothing in the new policy that emerged in the late summer of 2014 could have resulted in a decision more favourable to the petitioner being taken.”