Resident’s appeal against local wind farm development refused

Helen Douglas argued that Perth and Kinross Council failed to have proper regard to its obligations as planning authority in relation to the protection of osprey and wildcat, both of which are highly protected species under European environmental law, but a judge dismissed her petition for judicial review and the Inner House of the Court of Session ruled that the Lord Ordinary’s decision was “correct”.

Lord Drummond Young, Lady Clark of Calton and Lord Malcolm heard that the petitioner, a resident at Kilry, near Blairgowrie, raised proceedings for judicial review of two related grants of planning permission made by the respondents Perth and Kinross Council, relating to a proposed wind farm at Tullymurdoch, near Alyth.

In September 2014 a reporter appointed by Scottish Ministers granted planning permission for the construction by RDS Element Power Limited of a seven-turbine wind farm together with an associated access track and ancillary works.

RDS, the interested party, subsequently applied for a modification of that permission, to permit changes in the size of the turbines, which was granted in November 2015.

The developer further applied and was granted planning permission the following month to lay 19 kilometres of underground electrical and fibre optic cable, with temporary ancillary infrastructure, to connect the proposed wind farm and another proposed wind farm to the primary electrical substation in Coupar Angus.

The petitioner challenged the granting of planning permission for the modifications to the wind farm and the laying of the underground cable and sought reduction of the decisions, as well as a further order that the council should seek additional environmental information, and make a full and proper environmental assessment of the impact of the application on osprey and wildcat within the locality of the proposed wind farm and cable route, which are protected under the Wildlife and Countryside Act 1981 and the Wild Birds Directive and Habitats Directive respectively.

The grounds of challenge were that the respondent did not have sufficient environmental information before it to make a “proper assessment” of the effects of the modification to the turbines and laying of the cable upon a pair of osprey nesting within 300 metres of the wind farm and upon wildcat living in the vicinity.

Accordingly, the council acted “unlawfully” in granting permission in each case.

It was also contended that in the circumstances the council acted unlawfully in granting permission subject to conditions designed to protect osprey and wildcat.

Further, it was argued that the council’ gave “inadequate reasons” for its decisions.

The Lord Ordinary rejected the petitioner’s contentions, holding that the respondent had acted lawfully and that the prayer of the petition should be refused, but the petitioner appealed against the decision of the Lord Ordinary on four grounds.

In dealing with highly protected species, it was argued that the Lord Ordinary erred in holding that whether or not to call for further environmental information was a matter of planning judgment challengeable on Wednesbury grounds only as Article 12(1) of the Habitats Directive and Article 4 of the Birds Directive imposed “strict protection requirements” and their application involved a matter of law, not planning judgment.

The Lord Ordinary also erred in considering whether or not the environmental statement was adequate, it was said, because the relevant information that osprey and wildcat were in the vicinity of the proposed site and route of the cables came to light after the environmental statement had been prepared.

It was further contended that the Lord Ordinary erred in rejecting the argument that, in cases where strict protection of species was required, it was not lawful to leave over the assessment to a stage after the grant of planning permission by imposing conditions that required a species protection plan to be prepared. If a proper decision were to be made, it was necessary to allow the public “early and effective opportunities to participate in the decision-making procedures”.

Finally, it was argued that the Lord Ordinary erred in upholding a submission that, even if there are had been an error, the court should exercise its discretion to refuse a remedy, as a “significant breach” of EU law had been identified in the first three grounds of appeal, and accordingly it was not open to the Lord Ordinary to refuse a remedy on “discretionary grounds”.

Delivering the opinion of the court, Lord Drummond Young said: “In the present case the Lord Ordinary proceeded on the basis that the standard of review was the ordinary Wednesbury standard. In our opinion he was correct to do so.

“We accordingly hold that there was no obligation on the respondent, in considering the proposals for the turbine modification and the laying of the cable, to go beyond the planning merits of the application…”

In relation to the second ground of appeal, the judges held that the environmental statement and supplementary environmental statement, taken together with the measures required during construction, were “clearly sufficient” to comply with the respondent’s obligations under the relevant regulations and the directives.

As to the third ground of appeal, the court observed that the use of conditions that require assessment of the treatment of protected species after the granting of consent was “competent”, and “an obviously advantageous way to proceed”.

The appeal judges also rejected petitioner’s last ground of challenge.

Lord Drummond Young said: “The power of a court to refuse the remedy of reduction where there is no substantial prejudice, or no realistic prospect of a different decision, is a matter of general Scots law. It is founded on obvious considerations of common sense.

“These considerations apply to any legal rights, regardless of their origin, whether that be in domestic law or EU law, or indeed the European Convention on Human Rights or other instruments that are binding as a matter of international law.

“In all these cases, the essential consideration is that legal remedies should provide for real breaches of legal rights, not breaches that are theoretical or hypothetical or without any practical substance. We accordingly reject the petitioner’s submission that rights under EU law should be treated differently from rights under domestic law in relation to the power to refuse a remedy.”