Petition Of Helen Douglas Against Perth And Kinross Council And Rds Element Power Limited
| Jurisdiction | Scotland |
| Judge | Lord Kinclaven |
| Neutral Citation | [2016] CSOH 167 |
| Published date | 02 December 2016 |
| Date | 02 December 2016 |
| Court | Court of Session |
| Docket Number | P168/16 |
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 167
P168/16
OPINION OF LORD KINCLAVEN
In the petition of
HELEN DOUGLAS
Petitioner
against
PERTH AND KINROSS COUNCIL
Respondent
and
RDS ELEMENT POWER LIMITED
Interested Party
Petitioner: Agnew of Lochnaw QC; Drummond Miller LLP
Respondent: JDC Findlay; Harper MacLeod LLP
Interested Party: M E McKay; Eversheds LLP
2 December 2016
Introduction and Overview
[1] This is a petition seeking Judicial Review of a decision of Perth and Kinross Council dated 18 November 2015 to grant the application by RDS Element Power Limited for planning permission for modification of permission 12/01423/FLL (formation of wind farm with associated access track and ancillary works) change of turbines at Tullymurdoch Wind Farm, Alyth, subject to conditions.
[2] The case came before me for a substantive hearing.
[3] Sir Crispin Agnew of Lochnaw appeared for the petitioner, Ms Helen Douglas. He invited me to find that the respondent had erred in law, to sustain the petitioner’s plea in law, and to reduce the decisions complained of.
[4] Mr Findlay appeared for the respondent, Perth and Kinross Council. He contended that the decisions of the respondent were not unlawful. He invited me to refuse the petition.
[5] Mr McKay appeared for the interested party, RDS Element Power Limited. He also invited me to refuse the petition.
[6] In overview, having considered the representations of all parties, and the documents produced, I have reached the conclusion (for the reasons outlined more fully below) that the submission made on behalf of the respondent and the interested party are well founded.
[7] Accordingly, in the whole circumstances, I shall sustain the first plea-in-law for the respondent; sustain the first, second, third, fourth, fifth and sixth pleas-in-law for the interested party; repel the petitioner’s pleas-in-law, and refuse the orders sought in the petition.
[8] I shall reserve meantime all question of expenses.
[9] I would outline the background and my reasons as follows.
The Background
[10] This case concerns wildcat and osprey. The petitioner has satisfied section 27B(2) (requirement for permission) of the Court of Session Act 1998. She is a member of the public who claims sufficient interest to raise these proceedings under Article 11(1) of the Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (as amended) (“the EIA Directive”). She objected to the grant of both the planning permissions under challenge. She raised the issue of wildcat living in the locality of the wind farm with Scottish Natural Heritage (“SNH”). She lives opposite the osprey nest that is the subject of this petition. She was appointed spokesman by the objectors to speak at the planning meeting regarding their objections in relation to inter alia wildcat and osprey issues.
[11] The petitioner maintained that she has real prospects of success because her averments demonstrate that the planning authority have failed to fulfil their obligations under the EIA Directive and Regulations to require additional environmental information and to make a proper environmental impact assessment of the two applications. They are therefore in breach of their obligations in relation to European species under the Habitats and Birds Directives. This goes beyond a matter of “planning judgement” and is supported by the decisions R v Cornwall CC [2001] Env LR 25 and Smith v Secretary of State for the Environment, Transport and the Regions [2003] 2 P & CR 11.
[12] The petition is opposed by the respondent and interested party on the grounds outlined below.
The Petition
The Parties
[13] The petitioner is employed as a part time shepherd and is tenant of a farm in the locality of the Tullymurdoch Wind Farm. The petition raises issues concerning inter alia osprey and wildcat. The respondents are the planning authority, namely, Perth and Kinross Council (“the Council”). RDS Element Power Limited (“RDS”) have an interest in this petition as the holder of the planning permission that is the subject of challenge.
The Decisions Challenged
[14] On 18 November 2015 the Council made a decision to grant the application by RDS for planning permission for modification of permission 12/01423/FLL (formation of wind farm with associated access track and ancillary works) change of turbines at Tullymurdoch Wind Farm, Alyth subject to conditions. A copy of that Planning Permission is produced. (“the modification decision”).
[15] On 9 December 2015 the Council also granted planning permission to RDS for laying underground cable with temporary ancillary infrastructure connected with the Tullymurdoch Wind Farm (“the cable decision”).
[16] RDS holds planning permission for the construction of a seven turbine wind farm with associated tracks and ancillary works at Tullymurdoch Farm, Alyth. The grant of that initial permission is not challenged in this Judicial Review. The petitioner maintains that, at the time of that grant, the Council were not made aware of the presence of wildcat and osprey.
[17] The petitioner points out that the original planning permission contains a Condition 17 which is in similar terms to the condition in the decisions challenged. She maintains that the outcome of this Judicial Review is likely to inform how that condition is implemented if RDS decide to go ahead with the original planning consent.
The Remedies Sought by the Petitioner
[18] The petitioner seeks:
a. reduction of the modification decision and the cable decision;
b. an order upon the Council to require further environmental information, advertise it, and to make a full and proper environmental assessment of the impact of the application for modification of permission 12/01423/FLL, on the osprey and the wildcat that reside within the locality of the proposed wind farm and cable route including proposed measures for the protection of said species prior to any reconsideration of the two applications.
[19] The petitioner also craved the court to pronounce such further orders, decrees or orders (including an order for expenses) as may seem to the court to be just and reasonable in all the circumstances of the case. All parties reserved their position in relation to the question of a protective expenses order in terms of Chapter 58A of the Rules of the Court of Session.
The Petitioner’s Grounds of Challenge
[20] The petitioner challenged the Council’s decision on the following three grounds.
[21] The first ground of challenge was that the Council did not have sufficient environmental information before it upon which to make a proper assessment of the effects of the proposed modification application or the cable application in respect of the impact upon the pair of osprey nesting within 300 metres of the wind farm and upon wildcat that live in the vicinity of the wind farm and the cable routes. Accordingly the Council was not in a position to make a proper assessment of those effects and accordingly acted unlawfully in granting those permissions. Information about the presence of the pair of osprey, and details of the wildcat living in the area, only became available after the Environmental Statement (“ES”) had been presented for the original wind farm application and after the screening decision had been made that the cable application did not require an ES. The Council ought to have required additional environmental information to be provided by RDS. The petitioner accepts that the Council had made a screening decision on 17 July 2015 that an ES was not required, but maintains that when information came to hand anent the wildcat and osprey, the Council ought to have considered that further information on these species was required.
[22] The petitioner’s second ground of challenge was that, in respect that the Council did not have sufficient environmental information before them upon which to make a proper assessment of the effects of the proposed modification and cable applications on the osprey and wildcat, the Council acted unlawfully in granting:
(i) the modification permission of 18 November 2015 subject to a Condition 1 which required the preparation of a Construction and Environmental Management Plan which was to include “1) measures for the protection of or beneficial to European and other protected species, formation of any required protected species protection plans and implementation measures for any such plans” and
(ii) the cable permission subject to Condition 7 which inter alia required prior to construction commencing measures for protection of/or benefits to European and protected species including the formation of any species protection plans.
The environmental information that those plans would produce, and the assessment that would be made to produce the said plans, was environmental information that should have been obtained, and an assessment that ought to have been carried out, before consents were granted. The Council ought to have required this Supplementary Environmental Information (“SEI”) prior to granting planning permission under Regulation 23(2)(b) of the EIA Regulations 2011. Had it been required it would have had to be advertised under Regulation 24 and the members of the public, including the petitioner, could have made representations on that SEI, which ought to have included proposed mitigation measures such as would appear in species protection plans. Reference was made to paragraph 5 of Annex 4 of the EIA Regulations. By failing to require SEI and advertising it, the petitioner and members of the public were not given early and effective opportunities to participate in the environmental decision making process as required by Article 6 of Directive 2011/92/EU (the “EIA Directive”). They were thus prejudiced.
3. The petitioner’s third ground of challenge was that the...
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