Petition By Helen Douglas Against Perth And Kinross Council And Rds Element Power Limited (interested Party)
| Jurisdiction | Scotland |
| Judge | Lady Clark Of Calton,Lord Drummond Young,Lord Malcolm |
| Judgment Date | 04 May 2017 |
| Neutral Citation | [2017] CSIH 28 |
| Court | Court of Session |
| Date | 04 May 2017 |
| Published date | 04 May 2017 |
| Docket Number | P168/16 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2017] CSIH 28
P168/16
Lord Drummond Young
Lady Clark of Calton
Lord Malcolm
OPINION OF THE COURT
delivered by LORD DRUMMOND YOUNG
in the Petition
by
HELEN DOUGLAS
Petitioner and reclaimer
against
PERTH & KINROSS COUNCIL
Defenders and respondents
and
RDS ELEMENT POWER LIMITED
Interested party
for
Judicial review of a decision of Perth & Kinross Council to grant planning permission in connection with Tullymurdoch Wind Farm, Alyth
Petitioner and reclaimer: Sir Crispin Agnew QC; Campbell & McCartney, solicitors
Defenders and respondents: Findlay QC; Harper McLeod LLP
Interested party: Mackay QC; Eversheds
4 May 2017
[1] The petitioner, who is resident at Kilry, near Blairgowrie, has raised proceedings for Judicial Review of two related grants of planning permission made by Perth and Kinross Council, the respondents. Those grants of planning permission relate to a proposed wind farm at Tullymurdoch, near Alyth. The developers of the wind farm are the interested party. The primary ground of challenge to the two grants of planning permission is that the Council failed to have proper regard to its obligations as planning authority in relation to the protection of osprey and wildcat, both of which are highly protected species under EC environmental law.
[2] On 3 September 2014 a reporter appointed by Scottish Ministers granted planning permission (permission 12/01423/FLL) for the construction by the interested party of a wind farm of seven turbines at Tullymurdoch, together with an associated access track and ancillary works. The interested party subsequently applied for a modification of that planning permission, to permit changes in the size of the turbines. Planning permission for the modification was granted on 18 November 2015. The interested party further applied for planning permission to lay 19 kilometres of underground electrical and fibre optic cable, with temporary ancillary infrastructure, to connect the proposed wind farm and another proposed wind farm to the primary electrical substation in Coupar Angus. Planning permission for that development was granted on 9 December 2015. In the present proceedings the petitioner challenges the granting of planning permission for the modifications to the wind farm and the laying of the underground cable. The primary remedy sought is reduction of the two grants of planning permission. The petitioner further seeks an order that the respondent should require further environmental information, advertise it, and make a full and proper environmental assessment of the impact of the application on the osprey and wildcat that reside within the locality of the proposed wind farm and cable route.
Protection of Osprey and Wildcat
[3] It is convenient at this stage to note the provisions that apply to the protection of osprey and wildcat: first in the relevant legislation, and secondly in the documents that apply to the planning permission, namely the environmental statements and the grants of planning permission themselves. The petitioner’s challenge to the respondents’ decision is based on the import of these provisions for the present case, and in particular the application in a case where further information about protected species has come to light after the original environmental statement prepared for the purposes of the planning application.
Legislation
[4] In challenging the grants of planning permission for the modification of the turbines and the laying of the cable, the petitioner founds on the legislation governing the protection of osprey (Pandion haliaetus) and wildcat (Felis silvestris). Both of those species enjoy highly protected status under conservation legislation. In the case of the osprey, protection is accorded under section 1 of the Wildlife and Countryside Act 1981 and the Wild Birds Directive (Directive 2009/147/EC of the European Parliament and Council on the conservation of wild birds). Article 4 of the Directive provides that the species mentioned in Annex I “shall be the subject of special conservation measures concerning their habitat in order to ensure their survival and reproduction in the area of distribution”. Pandion haliaetus is one of the listed species. Article 4 further provides that Member States should classify the most suitable territories in number and size as special protection areas for the conservation of these species.
[5] The wildcat is accorded highly protected status by the Habitats Directive (Council Directive 92/43/EEC). Article 12 of the Directive provides that Member States “shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range”, prohibiting inter alia “deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration”, and also “deterioration or destruction of breeding sites or resting places”. Annex IV includes the Felis sylvestris.
Protected Species in the Environmental Statements and Grants of Planning Permission
[6] An environmental statement (ES) was produced in July 2012 for the original application for planning permission in respect of the wind farm. In that document ornithology was considered in section 6 and ecology in section 7. A field survey in respect of breeding raptors had been undertaken in 2010. Two osprey flights had been recorded during the period of observation, and desk study records indicated that the species had bred within 5 kilometres of the site. The potential environmental effects of the wind farm were assessed, including the effects on nesting birds of the construction phase. Mitigation measures were proposed, which included checking for nests at the stage of construction. In the ecology assessment in section 7 specific consideration was given to wildcat, which had been identified in the wider area. It was recorded, however, that no evidence of wildcat had been recorded during the watching brief for that species. That did not conclusively prove that wildcat were absent from the site, as wildcat can have a series of home ranges. Consequently a precautionary approach was taken and it was assumed that the survey area was used to some extent by wildcat.
[7] The decision of the reporter appointed by Scottish Ministers in respect of the original application for planning permission imposed a detailed condition, condition 17, relating to environmental management. So far as material this was in the following terms
“17. Prior to the commencement of development a Construction and Environmental Management Plan will be submitted to and approved in writing by the planning authority, in consultation with SEPA [the Scottish Environmental Protection Agency] and SNH [Scottish Natural Heritage], at least one month prior to the commencement of development.
The Construction and Environmental Management Plan will identify from the environmental statement appropriate mitigation strategies and consolidate these, clearly outlining what shall be implemented, when and by whom. It will incorporate:
…
- ecology protection measures, if any
….
And include…
j) details of bird surveys to be carried out before the commencement of development;
…
l) 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;
….
All work shall be carried out in accordance with the approved Construction Environmental Management Plan and all mitigation measures proposed within the environmental statement shall be undertaken within the approved timescales, unless as otherwise agreed in writing with the planning authority”.
[8] When the application for planning permission for the cable development was made, the respondents screened the proposal to determine whether a further environmental statement was required. They decided that such a statement was not required, after taking cognizance of the Scottish Government’s and the European Commission’s screening checklist. An ecological appraisal was carried out by consultants, however, and they reported in September 2015. They considered the position of both wildcat and osprey, and concluded that no permanent effects were likely on the habitats of those two species.
[9] Scottish Natural Heritage reported on both the proposal for the modification of the wind turbines at the Tullymurdoch wind farm and the proposal for the installation of underground cables serving the wind farm; the former report was dated 9 October 2015 and the latter 15 October 2015. In relation to the modification of the turbines, protected species were considered, and it was noted that there were recent records of breeding wildcat at certain locations. It was requested that a species protection plan for wildcat should be submitted before any construction work began, such a plan to be included within the Construction and Environmental Management Plan and should be required for the discharge of one of the conditions, condition 17L, of the original consent for the wind farm. It was further noted that there were records of protected breeding birds nesting within close proximity to the development site, notably an osprey nest at a particular location. In this case it was requested that the presence of the birds should be taken into account in the discharge of condition 17. Certain further recommendations were made: in particular, disturbance to wildcat and other protected species should be minimized during the construction and operation of the development. To that end, species protection plans should be submitted prior to the commencement of works for comment by both SNH and the respondents, and should be implemented during construction. They should include pre-construction surveys for legally protected species at an appropriate time of year, and a watching brief should then...
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