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.

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.

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.)

Inner House case considering a petition brought by Sustainable Shetland for judicial review of the Scottish Minister’s decision to grant planning permission to Viking Energy Partnership for a 103 turbine wind farm development on a site of approximately 50 square miles on mainland Shetland.

When the relevant statutory provisions[1] were being considered in the Outer House, it was discovered that Viking did not hold a licence to generate electricity. On a construction of the provisions, Lady Clark found that it was not open to the Ministers to grant consent for the building of the wind farm to persons who were not licence holders or exempt persons[2] in terms of the legislation.

Lady Clark also concluded that there was merit in Sustainable Shetland’s argument that there had been a failure on the part of the Ministers to take proper account of their obligations under the Wild Birds Directive 2009[3], finding that they had failed to properly engage with the directive in any meaningful way when reaching their conclusion.

Arguments
The Scottish Ministers’ appealed on two grounds:

1. Whether, on a proper interpretation of the Electricity Act, an application for section 36 consent could competently be made only by a person who held a licence under section 6 or an exemption under section 5 (the competency issue).
2. Whether, having regard to the information before them, the Scottish Ministers had failed to engage with their obligations under the Wild Birds Directive (the whimbrel issue).

Decision
The Inner House allowed the appeal on both grounds.

The Competency issue
Sustainable Shetland decided not to insist on the competency issue and did not present any arguments based on it. However, at the suggestion of Lady Clark, an amicus curiae[4] was appointed to present the argument. Nevertheless, after presenting a written argument on the point, the amicus curiae indicated that he no longer considered that he could support the Lady Clark’s decision on the point. The Inner House considered that Sustainable Shetland and the amicus curiae had been correct in their decision not to support the decision of the Lady Clark on the competency issue.

The Inner House found that the holding of a licence is not a condition precedent to the granting of consent of section 36 and agreed with the reasoning of Lord Doherty in Trump International Gold Club Scotland Ltd v The Scottish Ministers in which the same argument (adopted by Trump following Lady Clark’s decision) was rejected [4].

The whimbrel issue
With regard to the whimbrel issue, the Inner House found that, instead of deciding whether the Ministers’ decision had been lawful once account had been taken of the Wild Birds Directive, Lady Clark had considered whether the Ministers had demonstrated that they had fully understood and complied with their obligations under the directive irrespective of the likely effect of the consent on the bird population. The Inner House noted that, whilst the Minister’s decision letter did not make specific reference to the Wild Birds Directive, it was clear from the letter that the decision had been made having regard to an assessment of the impact on the whimbrel population which had been put forward by Scottish Natural Heritage under reference to the Directive.

The full judgement is available from Scottish Courts here.

(See also appeal to the Supreme Court here.)

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

Inner House case considering whether additional parties (including the Trump Organisation) could intervene in the case of Sustainable Shetland v The Scottish Ministers which concerned the Scottish Government’s decision to grant planning permission for a wind farm on Shetland.

Background
In the Outer House Lady Clark had, in essence, found that consent to build a wind farm could not be granted to developers who did not already hold a licence to generate electricity (this finding has become known as “the competency question”). As was noted by the Inner House, the competency question has caused a “degree of consternation” amongst wind farm developers.

The Scottish Minister’s sought to appeal the decision of the Outer House. However, although they have indicated that they wish to maintain environmental arguments, Sustainable Shetland have indicated that they do not wish to maintain an argument based on the competency question.

A variety of parties including the Trump Organisation[1], various wind farm developers and the RSPB then sought to intervene in the proceedings in terms of Rules of Court 58.8(2) (which allows parties directly affected by any issues raised in proceeding to intervene) and 58.8A (which allows parties to intervene in order to raise an issue of public interest).

Decision
Rule 58.8(2) – parties directly affected
The Inner house found that Trump and the other wind farm developers could not be said to be directly affected by the issues raised in the proceedings:

 “As a general rule, if a public law decision is challenged, for whatever reason, the range of persons able to enter the process remains limited to those who can show an interest in the outcome of the case; that is to say not in the potential legal reasoning employed by the court in reaching a decision, but in the decision itself. Neither Trump nor AES K2 and the related companies have any interest in the outcome of whether the Shetland windfarm goes ahead.”

Rule 58.8A – issues of public interest
Trump’s application under rule 58.8A also failed. They were not advancing a public interest point. The point which they sought to make was one intended as a protection of their private interests in the marketing of their Menie development.

The Outer House also rejected the RSPB’s application under rule 58.8A noting that, although they had interest in the bird life on the wind farm, they had had the opportunity to intervene in the Outer house proceedings and chose not to do so. Consequently, the Inner House did not consider it appropriate to allow the RSPB to enter the process at the appellate stage under the guise of a public interest intervention. Further, given the positions of Sustainable Shetland and the Scottish Ministers, the court did not consider that any propositions advanced by the RSPB would be likely to assist the court.

The full judgement is available from Scottish Courts here.

Outer House decision concerning Trump International’s challenge to the Scottish Government’s decision to grant permission for an offshore wind farm near its golf resort at Menie in Aberdeenshire. (My blog on some of the issues surrounding the golf resort can be seen here.)

Following the recent decision in Sustainable Shetland v The Scottish Ministers in which Lady Clark came to the conclusion that it was not competent to grant planning permission for a wind farm to persons who were not licence holders or exempt persons[1] under the Electricity Act 1989, Trump International lodged a minute of amendment seeking to add the argument made by Sustainable Shetland (referred to as the “competency question”) to their pleadings. They also sought to have the competency question dealt with before the other issues in the case and referred to the Inner House.

Lord Woolman allowed Trump international to amend their pleadings[2] to include the competency question but, having regard to the potential consequences and effect it might have on the overall delay, refused the motion to detach the competency question from the other issues in the case.

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.

Outer House case considering a petition brought by Sustainable Shetland for judicial review of the Scottish Minister’s decision to grant planning permission to Viking Energy Partnership for a 103 turbine wind farm development on a site of approximately 50 square miles on mainland Shetland.

When considering the relevant statutory provisions[1], it was discovered that Viking did not hold a licence to generate electricity. On a construction of the provisions, Lady Clark found that it was not open to the Ministers to grant consent for the building of the wind farm to persons who were not licence holders or exempt persons[2] in terms of the legislation.

Lady Clark also concluded that there was merit in Sustainable Shetland’s argument that there had been a failure on the part of the Ministers to take proper account of their obligations under the Wild Birds Directive 2009[3], finding that they had failed to properly engage with the directive in any meaningful way when reaching their conclusion.

However, Lady Clark rejected Sustainable Shetland’s arguments relating to the need for a public enquiry finding that, on reading the Ministers’ decision letter as a whole, the Ministers had considered that they had sufficient information to come to a conclusion without holding a public enquiry and Sustainable Shetland had failed to demonstrate that the Ministers were not entitled to reach that conclusion.

The full judgement is available from Scottish Courts here.

(NB: See appeal to Inner House  and further appeal to the Supreme Court here. See also related decision in relation to intervention by interested parties and Trump International v Scottish Ministers).

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

Inner House case considering an appeal by Bagmoor against a decision of the Scottish Ministers to adopt the recommendation of their reporter and reject Bagmoor’s planning application for a 14 turbine wind farm at Stacain near Inveraray in Argyll.

The site lies within Glen Etive and Glen Fyne Special Protection Area which was created to protect golden eagles and the reporter’s recommendation to reject the application was based primarily on the effect the wind farm would have on the eagles.

In essence Bagmoor’s appeal was based on their complaint that the reporter had not given adequate reasons for his decision. This was rejected by the Inner House which found that on each substantive or determining issue the reporter had given intelligible reasons for his decision and refused Bagmoor’s appeal.

Procedure
Central to the decision was the procedure to be followed under Conservation (Natural Habitats etc.) Regulations 1994 (SI 1994 No 2716), which implement the Habitats (92/43/EEC) and Birds (2009/147/EC) Directives. Regulation 48 requires that an appropriate assessment is carried out as regards plans which are likely to have a significant effect on a European site (in this case, the Glen Etive and Glen Fyne SPA). This involves a two stage procedure, the first stage being a preliminary examination to determine whether an appropriate assessment requires to be carried out. The second stage is a detailed assessment of the plans. If plans can be clearly carried out without an effect on the site, there is no need for the more detailed assessment. The court had the following to say on the matter:

 “There is no prescribed formula as to how the two stage exercise contemplated by regulation 48 and the Court of Justice is to be carried out. There are several ways in which it might be done in the context of domestic planning legislation and, no doubt, the precise form will depend upon a range of facts and circumstances, including the nature of the permission sought and the conservation objectives to be protected. However, with an application such as the present, at least by the time the respondents elect to call it in and order a public inquiry, it ought to be made clear, at least in the normal case, that any preliminary examination stage has been passed and that what is to be carried out at the inquiry is an “appropriate assessment” in terms of regulation 48(1)(a). Public inquiries are not held in order to undertake preliminary examinations.

It may just be possible, in a rare case, for the respondents to order an inquiry yet leave it to the reporter to decide whether an appropriate assessment is required. If that were done, the first “screening” stage ought to take the form of a preliminary examination undertaken (or the form of which could be agreed) at a pre-inquiry meeting and before any assessment is embarked upon. What should not occur, as happened here, is that the reporter carry out a detailed assessment and then decide that such an assessment was required before re-assessing the same evidence to reach a substantive decision. Put another way, there was no point in the applicants adducing a body of detailed evidence and then inviting the reporter to determine whether there was any need to adduce it.”

The reporter’s decision
In coming to his conclusion the Reporter had taken account of evidence of displacement of eagles from another wind farm at Beinn Ghlas. Bagmoor argued that this evidence was too qualified or limited in character to justify a finding either that eagle’s occupation of  Beinn Ghlas had been affected by  the wind farm, or that a wind farm at Stacain would cause a similar abandonment. However the court noted that, in terms of the legislation, the reporter required to recommend approval of the application only if he could be “certain”, that the plan would not adversely affect the SPA’s integrity. In these circumstances, it had been sufficient for the reporter to find that the evidence left open the possibility that a wind farm at Stacain would lead to abandonment of part of the site by the eagles. The reporter had not therefore required to resolve every aspect of the evidence or every subsidiary issue relating to the site at Beinn Ghlas.

Bagmoor also objected to the reporter’s consideration of evidence from Scottish Natural Heritage that eagles had 99% chance of avoiding a collision with the turbines and the contribution that “behavioural displacement” (i.e. the eagles moving away from the wind farm site to avoid collisions) made to that figure. However, it was common ground the eagles would tend to shy away from use of the wind farm and that constructing the wind farm would represent a loss of foraging ground. The court found that the reporter’s reference to the 99% avoidance rate in this context was simply confirmation of what had already been clear and had been ascertained during his screening exercise. The displacement of the eagles had been “effectively confirmed” by that rate.

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.

Outer House case concerning the termination of a wind farm agreement relating to property in Aberdeenshire.   In terms of the agreement, Backmuir granted an option to Mountwest to develop a wind farm on the property. The option period was ten years (with a right to extend for a further five years).  Mountwest was entitled to apply for planning permission and other consents but Backmuir had a right to see and make representations about the proposed application before its submission to the planning authority. If Mountwest obtained the necessary permissions, it could choose to exercise the option in which case Backmuir required to grant a twenty five year lease of the property to Mountwest. The agreement also contained a termination provision in the following terms:

“[Backmuir] may determine this Agreement by written notice to [Mountwest] if:-

 [Mountwest] materially fails to perform or observe any of its obligations in this Agreement and such failure or event is incapable of remedy or it is capable of remedy and [Backmuir] have [sic] served on [Mountwest] written notice specifying the failure or event and requiring it to be remedied within a reasonable time (to be specified in the notice and taking into account the nature of the obligation in question) and [Mountwest] has failed to do so;”

In June 2011 Mountwest lodged a planning application but failed to send a copy to Backmuir in advance. When it learned of this, Backmuir wrote to Mountwest advising them that they had breached the agreement and requiring them to remedy the breach “if it was capable of being remedied”. The letter also required Mountwest to provide the documentation required by the agreement within 21 days.  Mountwest then wrote to Backmuir enclosing a copy of the application and asking for comments. However, Backmuir’s solicitors replied purporting to terminate the agreement on the basis that Mountwest had failed to remedy the breach of the agreement.  The issue for the court was whether the agreement had been validly terminated.   Three questions required to be answered.

1. Was there a material failure by Mountwest?
2. If so, was it remediable?
3. Did Backmuir serve a valid notice of termination?

Material failure?
On a commercial construction of the contract Lord Woolman found that there had been a material failure by Mountwest. The purpose of the contract was to facilitate Mountwest’s wish to develop a wind farm at the property. But it contained built in checks drawn in Backmuir’s favour of which the right to make representations about the planning application was the most important. The parties had not intended that right to be illusory. Rather, they provided a mechanism which allowed Backmuir to influence the planning at a critical stage in the procedure.

Remediable?
Lord Woolman found that Mountwest’s failure to send the planning application to Backmuir was plainly capable of remedy; the application being at an early stage and local planning committee not yet having considered it.

Valid termination?
The clause allowing termination of the agreement had been a bespoke irritancy clause. The potency of the clause suggested that Backmuir would have to adhere to its precise requirements (it required Backmuir to serve written notice on Mountwest specifying the failure and requiring it to be remedied within a reasonable time). However, Backmuir’s initial letter notifying the breach had not been clear. It had both expressed doubt as to whether the breach was remediable and had required Mountwest to provide the documentation within 21 days. Lord Woolman found that the reasonable recipient of the letter would read it as requiring delivery of the documentation within 21 days and, if it were done, that would comply with the terms of the agreement.

Another approach was to ask whether the mischief created by Mountwest’s omission had been cured. Lord Woolman concluded that it had. Backmuir had asked for the documents. Mountwest had supplied them in return. If Backmuir had wished to insist on Mountwest withdrawing its application and beginning the process again, that would have been a simple message to convey and could have been easily and clearly set out in its letter.

The purported termination was therefore invalid.

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.

Judicial Review seeking to reduce a conditional consent and the related deemed grant of planning permission for a 59 turbine wind farm development situated 5 miles south of Dufftown and just over a mile outside the northern edge of the Cairngorms National Park.

William Grant were part of a group of third party objectors. The main thrust of their argument was that, having concluded that there was a need for the wind farm at the site, the planning reporter was then “anxious not to find too many things in the way of a consent” and allowed the need for the site to override other important adverse factors.

Section 36 of the Electricity Act 1989 provides that a generating station cannot be constructed except with the consent of the Scottish Ministers. Section 57(2) of the Town and Country Planning (Scotland) Act 1997 provides that, on the granting of such consent, the Scottish Ministers may direct that planning permission is deemed to have been granted subject to any conditions specified by the Ministers.

William Grant argued that section 25 of the 1997 Act, which requires that regard must be had to the development plan in making any determination under the planning acts, also applied, contending that the Scottish Ministers’ direction under s57(2) was flawed due to a failure to afford the development plan the enhanced status required by s25.

This argument was rejected by Lord Malcolm:

“In my view it is clear that the purpose of a section 57(2) direction is to allow circumvention of the process of a planning application, including any need for a determination in terms of section 37 of the 1997 Act (which does specify that regard is to be had to the development plan). By contrast, section 25 applies to decisions under the planning acts when it is a requirement that regard is to be had to the development plan. There are several provisions in the 1997 Act where one finds such a requirement. Section 57(2) is not one of them.”

Lord Malcolm found that, although the need for the site may have played a significant part in the overall conclusion, the decision was an “entirely normal and rational exercise of the kind of judgement required” in such applications and also rejected various other grounds of challenge based on policies in the local plan and supplementary guidance.

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.