This is an Inner House case in which the John Muir Trust sought reduction of the Scottish Ministers’ decision to grant consent for the construction of 67 wind turbines at Stronelairg near Fort Augustus.

Background
In their decision letter the Ministers intimated that they had decided not to hold a public local inquiry stating that they had taken into account 96 objections “and all material considerations”.  They expressed the view that there were no significant issues which had not been adequately considered “in the application, Environmental Statement and Supplementary Environmental Information, consultation responses and third-party representations” and that they had had sufficient information to be able to make an informed decision on the application without the need for a public local inquiry.

Outer House
The trust argued challenged the consent on the basis that the Ministers acted unlawfully and/or unreasonably in granting the consent:

• without the advertising of, and/or consulting on, the supplementary environmental information; and
• without giving adequate reasons for not following Scottish Natural Heritage advice (SNH having objected in principle to the wind farm on the ground of its impact on wild land).

The trust also argued that the reasons given in the decision letter for granting the consent were inadequate.In the Outer House, Lord Jones found that the trust’s challenge to the Ministers’ decision should succeed for the following reasons.

• A report recommending that Highland Council did not object to the wind farm on condition that the developer make changes to the layout of the proposed wind farm was additional information which had required notification by way of advertisement and/or consultation (in terms of The Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2000 and Environmental Impact Assessment Directive 2011/92/EU).
• The Ministers decision letter did not take into account SNH’s objection in principle to the wind farm (on the basis that it would have significant adverse impacts resulting in a loss of wild land and that it was not possible to mitigate those impacts).
• With regard to SNH’s objection in principle to the wind farm, the Ministers had failed to give adequate reasons for their decision in the decision letter.

Inner House
The Scottish Ministers appealed the decision of Lord Jones. After Lord Jones’ decision was issued, the Scottish Ministers amended their pleadings to state that notices advertising the fact that additional information had been received by the Scottish Ministers (and that it would be placed on the Council’s planning register and made available for public inspection) had been published in September 2012. That notice indicated that any further additional information would also be placed on the planning register and made available for inspection but stated that no further public notices would be issued.

The 2012 notice was published advertising the receipt of additional information after the Scottish Ministers had received a response from the Scottish Environment Protection Agency to the effect that SEPA were not objecting to the wind farm. The trust argued that the regulations should be interpreted so as to require the publication of a notice each time additional information was received and, in particular, that a further notice should have been published on the receipt of the Council’s decision letter.

The Inner House allowed the appeal.

• The Regulations and Directive require notification of receipt of additional information (including notification of where it can be found although the notice does not require to include the content itself) by the Scottish Ministers. However, they do not require that there is more than one notice. (Indeed the Regulations are clear that only one notification of additional information is required.) The court noted that the notice puts interested members of the public on guard that additional information will appear on the Council’s website and the public can then check the website from time to see the information. The court also noted that, if the trust’s arguments were correct, multiple notices would be required where the public was already aware of the potential for additional information and the fact that they could find it on the Council’s website.
• As regards the Ministers’ decision letter, the court found that Lord Jones’ erred by focussing on the absence of the words “in principle” from the letter. Despite the absence of those words, the court held that the letter had clearly addressed the substance of the SNH objection. It was apparent that careful consideration had been given to the visual impact of the development and its effect on wild land.
• The Ministers had concluded that the energy benefits and the contribution the development would make to sustainable economic growth outweighed the environmental aspects.  That was a planning judgement which they were entitled to make and the terms of the decision letter left no real doubt as to what the reasons for the decision had been.

The full judgement is available from Scottish Courts here.

 All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Inner House case considering an appeal relating to a section 75 agreement between Elsick Development Company and Aberdeen and Aberdeenshire Strategic Development Planning Authority. EDC wished to construct a development at Elsick (near Stonehaven). The agreement provided for EDC to make payments to a Strategic Transport Fund in terms of non-statutory Supplementary Planning Guidance. EDC had concerns that the planning guidance was invalid and, in terms of the agreement, no contribution was to be paid if the guidance was found to be invalid.

EDC argued before the Inner House (amongst other things) that the Supplementary Planning Guidance was contrary to national planning policy as it failed to comply with the requirement that any planning obligation must relate directly to the development proposed (as is provided for in the Scottish Government Planning Circular “Planning Obligations and Good Neighbour Agreements (Circular 3/2012)).

The court allowed the appeal finding that:

“It is a fundamental principle of planning law that a condition attached to the grant of planning permission, whether contained in a section 75 Agreement or otherwise, must “fairly and reasonably relate to the permitted development” …  This principle is reflected and explained by the Scottish Government Circular (3/2012) …  This makes it clear to planning authorities that an obligation must be “related and proportionate in scale and kind to the development”

 However, the court concluded that the Strategic Transport Fund was designed to pay for transport projects and infrastructure (“interventions”) which were not directly related to the proposed development.

 “The STF, and the requirement in the statutory Supplementary Guidance (SG) to contribute to it, may be regarded as a sound idea in political or general planning terms.  It may be seen as an imaginative idea which allows advanced strategic planning objectives to be achieved in a structured manner, financed by new development.  That does not, however, permit the imposition of an obligation on a developer to contribute to an intervention which is simply not related to the proposed development…  It may be that legislation could authorise the type of contribution envisaged by the [planning authority] …  but it has not yet done so in Scotland.”

 The full judgement is available from Scottish Courts here.

Inner House case concerning a petition for judicial review of the decision of Fife Council to grant planning permission for the building of a new Madras College on greenbelt land at Pipeland on the outskirts of St Andrews.

Background
The current Madras College is located on two sites and in need of replacement. The Executive Committee of Fife Council (as the education authority) had agreed, amongst other things, that a replacement school should, where possible, be situated on a single site. Planning permission for the building of a new school on a single site at Pipeland was granted on 16 May 2014 subject to a number of conditions.

Arguments
In the Outer House, the petitioners had argued that the council decision (and preceding planning officer’s report) had treated the education authority’s criteria as if they had been overriding planning requirements and so had failed to balance the educational considerations with the relevant planning considerations for the alternative sites. The petitioners also contended that the decision to rule out an alternative site at North Haugh (identified as a school site on the local plan) as it was too small ignored the possibility of combining it with the current playing fields at Station Park (with which it could have been linked by means of an underpass).

Decision
Lord Malcolm refused the petition in the Outer House and the petitioners appealed.

The Inner House allowed that appeal.

As the locating of the school at Pipeland was contrary to the development plan, it could only be approved if justified by sufficiently weighty material considerations[1].  In this regard, national planning policy provides that such a development can be approved where there is proven need and an absence of a suitable and available alternative site.

Where the planning authority was satisfied as to the need for the school and that the effect of a school on the greenbelt could not be mitigated, the key question was whether the school should be at Pipeland or on an alternative site with less environmental consequences. As to that, the planning authority:

“had to assess the respective merits and demerits of the other sites as compared with the merits and demerits of Pipeland.  The preferences and requirements of the applicant were relevant factors, but by no means decisive.  Any applicant developer, whether for retail, housing, or an educational development, will be influenced, perhaps primarily influenced, by its own interests.  The role of the planning authority is to reflect and safeguard the wider public interest in the proper planning of development in the area, including appropriate protection and conservation of the environment.  This is where the question of the suitability of alternative sites comes into the picture.  Given the acknowledged significant harm caused by development at Pipeland, if, in the opinion of the planning authority, a satisfactory alternative could be found which is consistent with the development plan and causes significantly less environmental harm, that would be a clear reason for refusal of the current application.”

In this case, the court found that the factor which had influenced the planning authority’s decision was the separation of the North Haugh site and the conflict this brought with the education authority’s desire for a single site. The planning authority had accepted the education authority’s decision as to the site instead of exercising its own planning judgement. However, the planning authority should have made up its own mind as to the alternative sites and have done so with regard to planning considerations[2].

“The planning authority was diverted from the planning judgment which it required to carry out if properly exercising its jurisdiction.  The full council was effectively told that it should ignore the issue as to whether the green belt could be protected by using an urban site, because the applicant had already considered the matter and its decision was determinative.  Thus the councillors were put in the position that if they wanted a new Madras College, and that had been a pressing need for many years, they would have to sanction development at Pipeland.”

 The full judgement is available from Scottish Courts here.

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[1] In terms of s25 of the Town and Country Planning (Scotland) Act 1997

[2] The judgement includes a postscript on the dangers involved when a Council is both an applicant and a planning authority.

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.

Petition for Judicial Review in which Trump International sought to challenge the Scottish Government’s decision to grant consent for an offshore wind farm near its golf resort at Menie in Aberdeenshire. There were two main challenges to the decision.

Section 36 of the Electricity Act 1989
Trump argued that the Scottish Government should not have granted consent in terms of s36 of the Electricity Act 1989 as the wind farm developer did not hold a licence to generate electricity. Trump founded on the decision in Sustainable Shetland v The Scottish Ministers[1] in which Lady Clark found that consent to build a wind farm could not be granted to developers who did not already hold a licence to generate electricity. In the Outer House Lord Doherty disagreed with the interpretation taken in Sustainable Shetland, rejected that argument and dismissed Trump’s petition. The Inner House refused an appeal finding that the entitlement to apply for a section 36 consent is not limited to developers who already hold (or are exempt from holding) a licence to generate electricity and that, where an applicant under section 36 obtains consent, it will require to obtain a licence or an exemption before it can generate electricity at the wind farm.

The Supreme Court have again rejected Trump’s arguments in that regard finding that its proposed interpretation was not supported by the structure and language of the 1989 Act. It also found that there was nothing in the policy behind the 1989 Act requiring the Court to take a different view of the statutory provisions. In coming to this conclusion the court noted, amongst other things, that it was not a necessary part of the policy that the persons who built electricity generating stations would also be the persons responsible for generating the electricity and that it has become established practice for organisations to seek s36 consents before applying for a licence to generate electricity.

Condition 14 of the consent
Trump also argued that condition 14 of the consent granted by the Scottish Government, which provides for the submission and approval of a design statement before the development could begin, was void for uncertainty. However, the Supreme Court found that, even if that condition had been unenforceable, the consent would not have been invalidated as it was found not to be a fundamental condition determining the scope and nature of the development (this also being covered by other aspects of the consent). Further, the court noted that a planning condition can only be said to be void if it can be given no sensible or ascertainable meaning and found that that was not the case with condition 14.

As such, Trump’s appeal was dismissed.

The full judgement is available from the Supreme Court here.

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[1] [2013] CSOH 158

Outer House case in which the John Muir trust sought reduction of the Scottish Ministers decision to grant consent for the construction of 67 wind turbines at Stronelairg near Fort Augustus.

Background
In their decision letter the Ministers intimated that they had decided not to hold a public local inquiry stating that they had taken into account 96 objections “and all material considerations”.  They expressed the view that there were no significant issues which had not been adequately considered “in the application, Environmental Statement and Supplementary Environmental Information, consultation responses and third-party representations” and that they had had sufficient information to be able to make an informed decision on the application without the need for a public local inquiry.

Arguments
The trust argued challenged the consent on the basis that the Ministers acted unlawfully and/or unreasonably in granting the consent:

• without the advertising of, and/or consulting on, the supplementary environmental information; and
• without giving adequate reasons for not following Scottish Natural Heritage advice (SNH having objected in principle to the wind farm on the ground of its impact on wild land).

The trust also argued that the reasons given in the decision letter for granting the consent were inadequate.

Decision
Lord Jones found that the trust’s challenge to the Ministers’ decision should succeed for the following reasons.

• A report recommending that Highland Council did not to object to the wind farm on condition that the developer make changes to the layout of the proposed wind farm was additional information which had required advertisement and/or consultation (in terms of The Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2000 and Environmental Impact Assessment Directive 2011/92/EU).
• The Ministers decision letter did not take into account SNH’s objection in principle to the wind farm (on the basis that it would have significant adverse impacts resulting in a loss of wild land and that it was not possible to mitigate those impacts).
• With regard to SNH’s objection in principle to the wind farm, the Ministers had failed to give adequate reasons for their decision in the decision letter.

The full judgement is available from Scottish Courts here.

(NB: See appeal to the Inner House here.)

Background
Outer House case considering a planning appeal[1] arising out of Dumfries and Galloway Council’s adoption of the Dumfries and Galloway Local Development Plan 2014 (the 2014 LDP).

Calmac owned the Woodland’s House Hotel, situated between Woodlands and Newbridge to the north-west of Dumfries, and also had an interest in promoting a small scale housing development around the hotel.

Prior to the adoption of the 2014 LDP[2] the hotel (and Woodlands and Newbridge) lay within the settlement boundary of Dumfries. However, as a consequence of the adoption of the 2014 LDP the settlement boundary changed and the hotel then fell outside the boundary meaning that an application for the development around the hotel would be dealt with under different and, it was argued, more restrictive housing policies.

When, what was to become the 2014 LDP, was published as a Proposed Local Development Plan Calmac had made representations[3] to the Council regarding the proposed plan. However, a reporter (appointed to resolve unresolved representations) recommended that no modification be made to the plan in the area of Calmac’s property.

Arguments
Calmac appealed on the basis that the reporter had failed to consider its representations regarding the change in the Dumfries settlement boundary. Further, it contended that the reporter had failed to take account of a representation that Newbridge should have been reclassified as a village in the event the settlement boundary was moved (which would have resulted in less restrictive housing policies applying to the proposed development).

Decision
Lord Turnbull rejected those arguments and refused the appeals.

It was found that, although the representations made by Calmac regarding the position of the Dumfries settlement boundary had included a statement that Newbridge was not designated as a village (and went on to show that more restrictive housing policies would apply as a result), it did not suggest that the absence of the designation was incorrect or inappropriate.  As such, when considering Calmac’s representations, it was only necessary to provide reasons relating to the placement of the Dumfries settlement boundary. The reasons given by the Council and reporter in that respect (that the decision had been taken by identifying an appropriate and defensible boundary for the settlement of Dumfries, identifying a landscape buffer and reaching the conclusion that the housing needs of the area were otherwise met) were held to be an exercise of understandable planning judgement and, as such, were adequate.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

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[1] Under s238 of the Town and Country Planning (Scotland) Act 1997.

[2] Under the Nithsdale Local Plan 2006.

[3] As they were entitled to do under s18 of the Town and Country Planning (Scotland) Act 1997.

Background
Inner House case considering the interpretation of a detailed planning permission granted in respect of Springkerse Retail Park near Stirling.

The provision at the centre of the dispute (condition 3) contained a definition of household goods which listed various specific types of (non-food) goods permitted for sale.

Coal Pension Properties (CPP) argued that the retail units within the park could be used for the sale of a wider range of goods than those contained in the condition 3 list and applied for a certificate of proposed lawful use permitting “the retail sale of any non-food goods”. Stirling Council refused the application and a reporter appointed by the Scottish Ministers refused an appeal of that decision. CPP appealed to the Inner House.

Argument
CPP contended that the condition 3 list only applied to units engaged in the selling of household goods. (i.e. those which were not engaged in selling household goods could sell any non-food goods). They also argued that the planning permission did not exclude the operation of the Town and Country Planning (Use Classes) (Scotland) Order (which allows buildings within class 1 (shops) to be used for the retail sale of goods other than hot food without it being taken as a development requiring planning permission).

Decision
The Inner House rejected those arguments and refused the appeal.

The court noted that, when interpreting a planning permission, the question is not what the parties intended but what a reasonable reader would understand would be permitted by the planning authority. On that basis, the court found that the condition 3 list applied to all of the retail units in the park. The court also agreed with the Scottish Ministers’ argument that, if CPP were correct then, if no unit sold household goods, the condition would not apply and would serve no purpose. In addition, the court took account of an earlier decision letter in relation to the grant of outline planning permission (to which the detailed planning permission expressly referred) which indicated that the condition 3 list applied to all of the retail units in the park.

With regard to the Use Classes Order, the court found that, when construed as a whole considering the purpose and context of the permission (including the earlier outline permission which had referred to the need to restrict the non-food goods sold at the retail park to protect town centre shopping facilities), the planning permission had the effect of excluding the operation of the Use Classes Order.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Petition for Judicial Review in which Trump International sought to challenge the Scottish Government’s decision to consent to an offshore wind farm near its golf resort at Menie in Aberdeenshire [1].

Trump argued that the Scottish Government should not have granted consent in terms of s36 of the Electricity Act 1989 as the wind farm developer did not hold a licence to generate electricity. Trump founded on the decision in Sustainable Shetland v The Scottish Ministers[2] in which Lady Clark found that consent to build a wind farm could not be granted to developers who did not already hold a licence to generate electricity. In the Outer House Lord Doherty disagreed with the interpretation taken in Sustainable Shetland, rejected that argument and dismissed Trump’s petition.

The Inner House have refused an appeal finding that the entitlement to apply for a section 36 consent is not limited to developers who already hold (or are exempt from holding) a licence to generate electricity and that, where an applicant under section 36 obtains consent, it will require to obtain a licence or an exemption before it can generate electricity at the wind farm.

The court also rejected arguments made by Trump to the effect that the Scottish Ministers’ decision had been pre-determined and showed bias.

The full judgement is available from Scottish Courts here.

Also see appeal to the Supreme Court here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

[2] [2013] CSOH 158

Outer House case concerning a petition for judicial review of the decision of Fife Council to grant planning permission for the building of a new Madras College on land at Pipeland on the outskirts of St Andrews.

The current Madras College is located on two sites and in need of replacement. The Executive Committee of Fife Council agreed that a replacement school should, where possible, be situated on a single site. Planning permission for the building of a new school on a single site at Pipeland was issued on 16 May 2014.

The Petitioners argued that in granting the permission the Council:

1)    had not considered an alternative site at North Haugh which could be used in conjunction with playing fields at Station Park (on the other side of the A91);

2)    if that argument was wrong and the Council had considered the North Haugh site then the Council had wrongly considered it to be a split site; and

3)    If the Council had been entitled to treat the North Haugh site as being split, then it had erred in excluding it from further consideration on that ground.

Lord Doherty rejected those arguments finding that the North Haugh site had been considered as an option and, after noting that North Haugh and Station Park are split by a major A class road and were not contiguous, that the Council’s consideration that the site was a split site was neither perverse nor erroneous. Lord Doherty also found that the North Haugh site had not been discounted solely on the basis that it was a split site and account had been taken of actual disadvantages of the site such as travel time for staff and pupils and the fact that North Haugh was a small site without space which may prove necessary to deal with a developing curriculum in the future. The petition was therefore refused.

The full judgement is available from Scottish Courts here.

(NB: See appeal to Inner House here.)

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here