(first) Nicola Brown And (second) Edna Booth Against A Decision Of The Scottish Ministers Dated 23rd July 2014
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lord Bracadale,Lady Smith |
| Neutral Citation | [2015] CSIH 49 |
| Docket Number | XA124/14 |
| Published date | 30 June 2015 |
| Court | Court of Session |
| Date | 30 June 2015 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 49
XA124/14
Lady Paton
Lady Smith
Lord Bracadale
OPINION OF THE COURT
delivered by LADY SMITH
in the appeal
by
(FIRST) NICOLA BROWN; and (SECOND) EDNA BOOTH
Appellants;
Against
a decision of
THE SCOTTISH MINISTERS, dated 23rd July, 2014
Respondents:
Appellants: Campbell QC, Pirie; Balfour & Manson LLP
Respondents: Dean of Faculty, Barne; The Scottish Ministers
30 June 2015
Introduction
[1] An offshore wind farm will be of no benefit if there are no means of transmitting the electricity it produces, to the national grid. Accordingly, planning consent having been granted for such a wind farm off the coast near Aberdeen, permission was sought for the construction of two electricity substations, a corridor for electricity cables and various associated and ancillary works so as to achieve the effective export of electricity from the wind farm onshore and onwards to the national grid.
[2] The local authority refused permission on 22 November 2013 and the developer appealed to the respondents on 9 January 2014. The respondents appointed a reporter to determine the appeal. He commenced his task in February 2014. By decision dated 23 July 2014, he allowed the appeal and granted planning permission subject to conditions.
The issues
[3] The appellants raise three issues:
(i) Whether the procedure adopted by the reporter was unfair in respect that he did not hold an oral hearing?
(ii) Whether the reporter acted irrationally in his assessment of the likely visual impact of the proposed development, thus rendering his decision ultra vires?
(iii) Whether the reporter failed to carry out an environmental assessment which complied with article 3 of Council Directive 2011/92/EU of 13 December 2011 (“the EIA directive”)?
They say that, in the event of any of these questions being answered in the affirmative, then the reporter’s decision falls to be reduced.
Background
The site
[4] The substation site is in an unused area of rough grassland and lies in a shallow valley to the south east of a small village called Blackdog, about two miles north of Aberdeen. The appellants live a little distance away, in houses that lie to the north‑west of it. They object to this development.
[5] The local development plan statement for Blackdog identifies an area referred to as M1 and allocates it for development for up to 600 houses, a school, associated facilities and employment land. The substation site and part of the cable corridor lie within M1, on its southern side.
[6] The site is also in an area which, historically, was used for landfill including the post- war deposit of rubble from bomb – damaged properties in Aberdeen. The former Strabathie landfill site is in the immediate vicinity of Blackdog and was, between 1981 and 1983, licensed for the receipt of inert waste and waste from the construction industry including asbestos waste.
[7] The prior use of Strabathie for the deposition of waste, including asbestos, is well known in the locality and the possibility of disturbance of it and/or other former landfill areas causing harmful dust and/or gases to be introduced into the atmosphere has given rise to one of the main concerns raised by local objectors including the appellants.
[8] The Strabathie site has been the subject of repeated investigation by the local authority’s Environmental Health Service, since 2002. No significant contamination has been found, excepting the presence of asbestos; the findings were not, however, such as to prevent the granting of planning permission for residential development on the Strabathie landfill site in both 2004 and 2005.
[9] In 2006, a study of landfill sites in the area afforded the Strabathie site a risk rating of “very low”.
[10] Site investigations were carried out in relation to the present application by independent professional consultants (SLR Consulting) as part of a detailed environmental study instructed by the developer. They were carried out across the site and involved 21 boreholes and 15 trial pits. SLR reported their findings in a substantial and detailed environmental statement. Appendix 6(e) to the environmental statement, containing some 230 pages, gave details of the onshore investigations. The local authority’s scientific officer, Anne Coles, having had regard to all of these studies, concluded that there was no gross contamination and that they were indicative of the risk of development of the site giving rise to contamination being relatively low. Analysis of soil samples for contamination across the range of relevant contaminants found contamination levels to be below the assessment criteria for a risk to human health and the local authority’s environmental health service expressed itself entirely satisfied with the scope of the laboratory analysis that was carried out. Ms Coles concluded:
“This Service is of the opinion that, provided a suitable gas protection system is installed in the site buildings and a suitable methodology employed to prevent asbestos remaining exposed on the site surface following completion of the works, the application is suitable for the proposed new use and will not impact significantly on the wider environment. Further, following redevelopment the site will not be capable of being determined as contaminated land under Part IIA of the Environment Protection Act 1990.”
Specifically regarding asbestos assessment, asbestos was found within the soils at three of 60 locations investigated. Ms Coles considered that, bearing in mind that it was not possible to examine all soils and subsoils prior to the commencement of the work proposed, further investigative sampling and analysis would not be useful; rather the focus should be on identifying the appropriate methodology for soil screening and other procedures for dealing with asbestos if found during that part of the works involving soil disturbance.
The reporter’s considerations: procedure
[11] Paragraphs 7 and 9 of the Town and Country Planning (Appeals) (Scotland) Regulations 2013/156 applied. The reporter had a discretion. He could determine the appeal without any further representations (paragraph 7) or by means of one or more of the procedures listed in paragraph 9(4), namely:
“(4)….
(a) by means of written submissions;
(b) by the holding of one or more hearing sessions;
(c) by the holding of one or more inquiry sessions;
(d) by means of an inspection of the land to which the appeal relates.”
Where a reporter decides to hold a hearing session, Schedule 1 paragraph 5 applies. It provides for the procedure at the hearing session to be as the reporter determines but subject to paragraph 5(5) which requires that the hearing take the form of “a discussion led by the appointed person and cross-examination is not permitted.” Clearly, it is not envisaged that a hearing session will provide an opportunity for witnesses to be led in evidence and cross examined.
[12] In this appeal, the reporter decided to proceed by means of carrying out a site inspection (on 1 May 2014) and written submissions. The appellants and other residents of Blackdog wanted him to hold a hearing and representations about that were made to him on their behalf but he decided not to do so.
[13] The circumstances founded on by the residents when seeking a hearing were that they unanimously opposed the application and had always done so, that they feared that the development was unsafe because the site was on the old Strabathie landfill, that White Young Green (“WYG”), experts instructed by another objector (Trump International Golf Links), questioned whether investigation of the site had established that the residents’ fears were unfounded, that the local community council supported the residents’ opposition and that the local council had held oral hearings at which evidence about the safety of the site was presented and the outcome was that they supported the residents’ objections.
[14] The reporter considered the requests for an oral hearing but decided that he did not require to hold one; he considered that he was able to gather all the information he required from the appeal papers, from his site inspection, and from written submissions, some of which were responses to specific points raised by him. For example, by a procedure notice dated 22 May 2014, he specifically asked the developer, Ms Coles and Mr John Campbell QC – acting for Trump International Golf Links – to provide information on three matters including Ms Coles’ views on an updated Ground Investigation Report dated October 2013 and its adequacy in the light of the report by WYG, and her comments in response to it having been reported that the Strabathie landfill site was a potential source of carbon dioxide. Ms Coles responded by providing a detailed report dated 11 June 2014 and WYG responded to that report with detailed observations in a report dated 17 June 2014.
The reporter’s considerations: appeal decision notice
Visual Impact
[15] There are two other houses situated close to the boundaries of the overall site, Hareburn House (close to the north eastern corner of the site) and Ceol Na Mara (close to the north western corner of the site).
[16] In his written reasons, the reporter noted that the development would be very prominent when seen from Hareburn House and, from Ceol Na Mara, there would be a prominent view of the buildings. For the occupants of those houses, the impact would, he considered, be “large and adverse” (paragraph 23). At paragraph 24, he continues:
“24. However, in none of these cases do I judge that the visual impact would be unacceptable. The proposed buildings would not be of a scale or character that would result in an overbearing visual impact, particularly as they would be located on the lowest part of the site. As already referred to, they are in the nature of modern industrial buildings, common in urban and semi-urban areas, where...
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