Appeal Under Section 239 Of The Town And Country Planning Scotland Act 1997 By Sallay Carroll Against A Decision Of A Local Review Body Of Scottish Bo
| Jurisdiction | Scotland |
| Judge | Lord Drummond Young |
| Neutral Citation | [2014] CSOH 30 |
| Court | Court of Session |
| Published date | 18 February 2014 |
| Year | 2014 |
| Date | 12 July 2013 |
| Docket Number | XA52/13 |
| OUTER HOUSE, COURT OF SESSION | |
| [2014] CSOH 30 | |
| XA52/13 OPINION OF LORD DRUMMOND YOUNG In an Appeal to the Court of Session Under Section 239 of the Town and Country Planning (Scotland) Act 1997 by SALLY CARROLL Appellant; against A decision of a Local Review Body of Scottish Borders Council _______________ |
Alt: (Respondent) Scottish Borders Council: Burnet; bto
Interested Party: (Firm of SR Findlay): van der Westhuizen; CMS Cameron McKenna
12 July 2013
[1] The appellant lives in Cockburnspath. An application has been made to Scottish Borders Counsel for the erection of two wind turbines, each 110 metres high, on land to the south west of Neuk Farm, Cockburnspath. The interested party, the firm of SR Findlay, are the owners of the site where it is proposed that the wind turbines should be erected and are the applicants for planning permission. On 21 March 2013 Scottish Borders Council decided to grant planning permission for the turbines. They appear as respondent.
[2] The appellant objected to the grant of planning permission for the turbines. She states that they will be one kilometre from her home, highly visible from it, and will adversely affect the views from her windows and garden and her residential amenity. She avers that it is likely that she will experience difficulty in selling her home in the future, and its value will be reduced even if she can find a buyer. She has appealed against the decision to grant planning permission on the ground that it was not within the powers accorded to the respondent under the Town and Country Planning (Scotland) Act 1997 and that the relevant requirements of that Act have not been complied with.
[3] The appellant avers that the site proposed for the turbines is in coastal farmland in the north eastern part of the Borders region. It is approximate to the highly sensitive coastal margin, and is within two kilometres of the Berwickshire Coast Special Landscape Area, within four kilometres of the Lammermuir Hills Special Landscape Area, within one kilometre of the Dunglass Historic Garden, within two kilometres of the Southern Upland Way, and close to conservation areas at Oldhamstocks and Cockburnspath and to the Berwickshire Coastal Path. The respondent has issued supplementary planning guidance on wind energy which includes a spatial strategy for wind farm development. Under that strategy the proposed site is within the second most protected area against wind farm development, out of five categories, and is next to Cockburnspath, which is in the most protected category.
[4] The first application for the direction of two wind turbines on the site was made in 2010 by the interested party, with a company known as Wind Direct as their agent. This was refused on the basis that the proposal was contrary to the development plan for the area. An application was resubmitted, but on 2 October 2012 the respondent's planning officer refused the application, once again on the ground that it was contrary to the development plan. The developers sought a review, which took place before a Local Review Body, consisting of five councillors of the local authority; provision for such bodies is made in section 43A(8) of the 1997 Act. The Local Review Body met on 18 February 2013 to consider the present application and other business. The appellant avers that, after discussion by councillors and a presentation by the respondent's planning officer, but without any site visit and without hearing from the applicant or other objectors, a vote was held. The recommendation of the planning officer was overturned by a majority of three councillors to two. On 21 March 2013 a written decision was issued by the respondent which granted planning permission subject to certain conditions. In this decision the respondent found that the development was consistent with the development plan. That was not in accordance with its earlier decisions.
[5] The appellant has now appealed to the Court of Session under section 239 of the 1997 Act. She contends that the decision to grant planning permission is not within the powers granted by the 1997 Act and that the relevant requirements of that Act have not been complied with. Specifically, she contends that:
- The respondent failed to take into account a material consideration, in that they ignored the provisions of their own Technical Guidance Note for the determination of applications to construct wind farms below 200 MW in Berwickshire. The respondent had commissioned a study to prepare the Note, which had been available from October 2012, and had been used by Council officers. The Technical Guidance Note gave specific guidance on coastal farmland, stating that there would be high sensitivity to turbines above 50 metres in height and finding that there was no scope for large (80 metres plus) and medium (50-80 metres) turbines in that area. The decision to grant planning permission for the two turbines of 110 metres gave no consideration to the Technical Guidance Note, or at any rate made no mention of it in the decision.
- The respondent erred in law in failing to have proper regard to Policy I20 of the Scottish Borders Structure Plan. That policy states that proposals for wind energy developments will be assessed against six criteria, which include impact on the landscape character of the area and, separately, any unacceptable cumulative impacts. In view of the location of the site and the multiplicity of wind farm applications either granted or pending in the area, the question of cumulative impact was an important consideration. The planning officer had described cumulative impacts as "particularly high and alarming" in the earlier refusal of planning permission of 2 October 2012. In failing to address this matter, the respondent also acted contrary to its own Supplementary Planning Guidance. Even if regard were had to those factors, inadequate reasons were given for the decision, in that there were no findings identifying other sites relevant to cumulative impact, or determining what the cumulative impact was and how it bore on the present decision.
- The respondent further erred in law in failing to have proper regard to Policy H2 of the Scottish Borders Consolidated Local Plan. Policy H2 protects residential amenity. Scottish Planning Policy at paragraph 190 provides that a separation distance of up to 2 kilometres between "areas of search" and the edge of cities and towns is recommended to reduce visual impact. The Supplementary Planning Guidance states that there is a presumption against turbines within two kilometres of any residence. The proposed development is approximately 1 kilometre from the appellant's home and the village of Cockburnspath. No mention of that is made in the decision.
- The respondent erred in law in its application of Policy D4 of the Local Plan. That policy provides that if there are significant adverse impacts on the natural heritage, including landscape, recreation and tourism which cannot be mitigated, the development will only be approved if the respondent is satisfied that the contribution to wider economic and environmental benefits outweighs the potential damage to the environment or to tourism and recreation. In this respect, it is said that (i) the respondent did not identify what the adverse impacts of the development were; (ii) the respondent's determination of economic benefit contained material errors of fact in relation to the existence of planning permission at a quarry neighbouring the site of the turbines, and there were no clear findings as to the level and nature of the economic benefit; (iii) the respondent failed to have regard to certain provisions of the Structure Plan and the Local Plan, together with article 1 of the First Protocol to the European Convention on Human Rights, in that it did not assess whether the economic benefit to a local business could be obtained in a way that minimized harmful environmental impacts.
- The respondent acted unfairly and in breach of natural justice in reaching its decision on planning permission without hearing objectors; it had written to objectors including the appellant on 8 January 2013 telling them that they had no right to be heard at the meeting of the Local Review Body. The Local Review Body did not permit objectors to be heard in any way.
Rule of Court 58A and protective expenses orders
[6] Following the lodging of the appeal, the appellant enrolled a motion for a protective expenses order in terms of Rule of Court 58A, which failing at common law, in such a way as to limit her potential liability in expenses to the respondent (the Council) and the interested party (the developer) to a cumulative total of £5,000, and to limit the liability in expenses of the respondent and the interested party to the appellant to £30,000. In the event that that part of the motion were granted, the appellant also has a motion for interim suspension of the planning decision of the Council reached on 21 March 2013 to grant planning permission for the two wind turbines, and for remit to the Outer House for determination. In the event the latter two parts of the motion were not opposed, and I accordingly remitted the appeal to the Outer House and granted interim suspension as sought. Thereafter, sitting in the Outer House, I determined the motion for a protective expenses order.
[7] A protective expenses order has for some time been available at common law. In general, the Scottish courts have followed similar principles to those laid down for England and Wales in R (Corner House Research) v Secretary of State for Trade and Industry, [2005] 1 WLR 2600. Since 25 March 2013, however, provision for a protective expenses orders has been expressly made in the Rules of Court, in the form of Rule 58A, introduced by Act of Sederunt (Rules of the Court of Session Amendment) (Protective Expenses Orders in Environmental Appeals...
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