Background
Outer House case considering a petition for judicial review challenging a decision of the Scottish Ministers (adopting the recommendation of their reporter and) refusing Glenmorie Wind Farm Limited’s application for permission to build 34 wind turbines in Easter Ross, north of Inverness.

At the centre of the case was proposed development’s proximity to, and potential impact on areas of wild land and the fact that, after the reporter’s report but before the Scottish Minister’s decision to refuse permission for the wind farm, Scottish Natural Heritage issued a new map identifying areas of wild land and the Scottish Government published a new National Planning Policy.

Arguments
Glenmorie argued that:

1. there had been procedural unfairness, a breach of natural justice and a  denial of legitimate expectations;
2. the Ministers had left material considerations out of account and had given inadequate reasons for the decision; and
3. that the Ministers had made a methodological error in coming to their decision.

Decision
Procedural unfairness
After the new map was issued and the new policy was published the Ministers invited submissions from the parties but later withdrew the request when they realised that further representations were not required and they had sufficient information to make the decision. Glenmorie had accepted this at the time but contended that the Ministers had considered the new map/policy and drawn adverse implications from them when reaching their decision and so should have allowed Glenmorie to make further representations in relation to the new map/policy. However Lady Wise rejected this argument noting that Glenmorie had indicated that they had been content that the Ministers were entitled to reach a decision without hearing further representations, that there was no suggestion that representations were considered from any of the parties and that, whilst the withdrawal of the invitation to make representations had resulted in inconvenience to (all of) the parties, that did not equate to material prejudice to Glenmorie.

Material considerations
Lady Wise also rejected Glenmorie’s contention that their position on the new map/policy was a material consideration which ought to have been taken into account and concluded that, when the Minister’s decision letter was read together with the reporter’s report, there was no lack of intelligibility.

Methodological error
In addition Glenmorie contended that the reporter fell into error by adopting an inconsistent approach when considering the impact on the landscape character of the proposed development on the one hand and, on the other hand, the cumulative impact. (Essentially, they argued that the reporter identified other nearby wind farms when considering the cumulative effect of those with the proposed wind farm but failed to take account of their detrimental influence on the wilderness qualities of the land). Again, this argument was rejected by Lady Wise who found that appropriate reference had been made to the other wind farms and that it was not inconsistent to describe the key characteristics of the landscape character of the site area as including “openness, vastness and remoteness” while acknowledging, in the context of the particular proposal, the cumulative impact it would have when seen in conjunction with other wind farm developments nearby.

The full judgement is available from Scottish Courts here.