Scottish Ministers win appeal over wind farm consent decision

Appeal judges in the Inner House of the Court of Session overturned a decision of the Lord Ordinary, who allowed a petition for judicial review by the environmental charity, the John Muir Trust.

The judges held that the ministers had published the required public notices advising of the impact of the 67-turbine Stronelairg development on the environment, and that the ministers had regard to a particular objection to the development “in principle” before taking their decision.

The Lord President, Lord Carloway, sitting with Lord Menzies and Lady Smith, heard that the Lord ordinary had ruled that the respondents had granted the consent in breach of Regulation 14A of the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2000, which set out the environmental information which an applicant for a proposed development must produce and the public notification requirements with which they must comply, as well as any “additional information” which must be provided when it is received.

The second successful ground of challenge was that the respondents had failed to take into account that the objection of Scottish National Heritage (SNH) had been one “in principle” to the location of a windfarm at Stronelairg, and that even if they had taken into account the SNH objection, they had still failed to give adequate reasons for rejecting it.

Before the Lord Ordinary, the respondents’ position had simply been that the relevant documents were in the public domain, the petitioners had inspected and commented upon them, and therefore the petitioners had suffered “no prejudice”.

It was submitted that it was only after the issue of the Lord Ordinary’s opinion that the respondents had amended their pleadings to explain that, unknown to the Lord Ordinary, Regulation 14A notices had been published in September 2012.

It was also submitted that even if a council report and decision on the proposed wind farm had constituted “additional information”, there had been no breach of Regulation 14A.

The appeal judges said it was “unfortunate” that the Lord Ordinary was allowed to proceed to his decision that there had been a breach of Regulation 14A of the EIA regulations in ignorance of the existence of the regulation 14A notices, but that the post judgment revelation required a “re-evaluation” of the petitioners’ averments.

Delivering the opinion of the court, the Lord President said: “Regulation 9 of the EIA regulations requires the publication of a notice when an application is first submitted. This provision was complied with by publication of the notice on 3 July 2012.

“This notice gave the intimation of the existence of the application, the relative plan and the Environmental Statement and advised of where these documents might be accessed.

“It stated how representations could be made and prescribed a timetable for this. In this respect, not only were the terms of Regulation 9 obtempered, but also those of Article 6.2(a), (b), (e), (f) and (g), 4 and 5 which it, in any event, fully implements.

“Neither the Directive, nor Regulation 14A, require there to be any more than one notice advertising the receipt of additional information. Indeed, the Regulation is clear in its terms that only one intimation of the existence of additional information need be made.

“The public are thereby put on guard that, thereafter, there may be further material on the Council’s planning register. This poses no practical difficulty for the interested member of the public, since the website may be checked from time to time for any such material.

“If the petitioners’ contentions were correct, there would require to be, in many cases, multiple newspaper notices advising of the receipt (but not the content) of additional information of whatever nature in circumstances in which the public would already be aware of the potential for additional information to have been presented and which they could access on the click of a mouse.

“Regrettably, the Lord Ordinary proceeded upon a misunderstanding of what was already part of the application and had been put into the public domain.”

He added: “On the second and third grounds of challenge, very substantial parts of the decision letter were aimed at addressing the SNH ‘in principle’ objection. The Lord Ordinary erred in focussing on the absence of a reference to the words ‘in principle’.

“The decision letter clearly addressed the substance of the SNH objection. As outlined above, it is apparent from the decision letter that careful consideration was given to the visual impact of the development and its effect on the wild land upon which it was to be built.

“The respondents nevertheless held that the energy benefits and the contribution the development would make to sustainable economic growth outweighed the environmental aspects. This was a planning judgment which the respondents were entitled to make.”

The petitioners also cross-appealed the refusal by a different Lord Ordinary to make a Protective Expenses Order (PEO) in respect of the proceedings in the Outer House on the basis that the effect of a reclaiming motion was to open up for review all the prior interlocutors of the Lord Ordinary.

However, the appeal judges observed that that contention “overlooks the principle that previous interlocutors may only be opened up for the purpose of doing justice in respect of an interlocutor which has been competently reclaimed”.

Lord Carloway said: “It is not competent to seek to challenge an interlocutor which has nothing to do with the merits of the interlocutor which is subject to the reclaiming motion…especially where leave to do so has been refused.

“All parties have conducted their cases, after the Lord Ordinary’s refusal, on the basis of the absence of a PEO. Had a PEO been granted, the respondents or the interested parties may have tailored their cases in a different fashion.

“In any event, to seek to review the Lord Ordinary’s interlocutor at this stage, when the court retains a discretion to modify any award of expenses at the conclusion of the case…would serve no practical purpose.”