Reclaiming Motion Of J Mark Gibson For Judicial Review Of A Decision Of The Scottish Ministers, Energy And Climate Change Directorate, Dated 23 July 2014

JudgeLord Menzies,Lady Clark Of Calton,Lady Paton
Neutral Citation[2016] CSIH 10
Published date10 February 2016
Date10 February 2016
CourtCourt of Session
Docket NumberP1328/14


[2016] CSIH 10


Lady Paton

Lord Menzies

Lady Clark of Calton


delivered by LORD MENZIES

in the Reclaiming Motion of


Petitioner and Reclaimer;

for judicial review of a decision of the Scottish Ministers, Energy and Climate Change Directorate, dated 23 July 2014

Petitioner: Findlay, Burnet; Morton Fraser LLP

Respondents: (The Scottish Ministers) Johnston QC, M Ross; Scottish Government Legal Department

Interested Party: (Scottish Power Renewables (UK) Ltd) Armstrong QC, A Sutherland; MacRoberts LLP

10 February 2016

[1] The petitioner lives at Craigengillan House, on the Craigengillan estate near Dalmellington in Ayrshire. On 27 April 2005 Scottish Power Renewables (UK) Ltd (“the Interested Party”) applied for consent under section 36 of the Electricity Act 1989 for the construction and operation of Dersalloch Wind Farm (“the wind farm development”). The wind farm development is approximately 4.2km from Craigengillan House. The nearest proposed turbine in the wind farm development would be 4.6km from the Scottish Dark Sky Observatory, which is located within the boundary of the Craigengillan Estate and is said to be one of only eight dark sky parks in the world.

[2] The Scottish Ministers, who are the respondents, received about 4,746 public representations about the wind farm development; of these, 4,723 were objections to the application, and 23 were letters of support. The objectors included South Ayrshire Council, East Ayrshire Council, local community councils, Historic Scotland, community bodies, and many individuals, including the petitioner.

[3] By letter dated 23 July 2014 the respondents decided not to hold a public inquiry in respect of the application, and granted consent, subject to conditions, under section 36 of the Electricity Act 1989 for construction and operation of the wind farm development, and directed under section 57(2) of the Town and Country Planning (Scotland) Act 1997 that planning permission be deemed to be granted for the wind farm development.

[4] East Ayrshire Council raised proceedings for judicial review to challenge the respondents’ decision not to hold a public inquiry, and to grant consent for the development. In light of this, the petitioner decided not to raise proceedings for judicial review himself. A hearing in East Ayrshire Council’s petition was set for 18 and 19 December 2014, but on the afternoon of 17 December 2014 East Ayrshire Council decided to withdraw. On 24 December 2014 the petitioner raised the present petition for judicial review.

[5] In early 2015 the petitioner enrolled a motion for a protective expenses order (“PEO”) in terms of Rule of Court 58A.3, in which he sought to have his liability in expenses to the respondents and the interested party limited to a cumulative total of £5,000 and limiting the liability of the respondents and interested party in expenses to the petitioner to £30,000. This motion was opposed on behalf of the respondents and the interested party; after a hearing in March 2015, by interlocutor dated 14 April 2015 the Lord Ordinary refused the petitioner’s motion. It is against this interlocutor that the petitioner now reclaims.

Chapter 58A of the Rules of the Court of Session
[6] There was no dispute that the petitioner’s application for a PEO was made in terms of Rule of Court 58A.2, nor that Chapter 58A applied. (It should be noted that Chapter 58A has been subject to significant amendments with effect from 11 January 2016). Rule of Court 58A.2 before amendment, as it applied at the time of the application to and decision of the Lord Ordinary and at the time of the hearing of the reclaiming motion before this court, is in the following terms:

Availability of protective expenses orders

58A.2‑(1) Subject to paragraph (2), a petitioner in an application or, as the case may be, an appellant in an appeal to which this Chapter applies may apply for a protective expenses order.

(2) The applicant must be –

(a) an individual; or

(b) a non-governmental organisation promoting environmental protection

(3) A protective expenses order is an order which regulates the liability for expenses in the proceedings (including as to the future) of all or any of the parties to them, with the overall aim of ensuring that proceedings are not prohibitively expensive for the applicant.

(4) Subject to paragraph (6), where the court is satisfied that the proceedings are prohibitively expensive for the applicant; it must make a protective expenses order.

(5) For the purposes of this rule, proceedings are prohibitively expensive for an applicant if the applicant could not reasonably proceed with them in the absence of a protective expenses order.

(6) The court may refuse to make a protective expenses order if it considers that-

(a) the applicant has failed to demonstrate a sufficient interest in the subject matter of the proceedings; or

(b) the proceedings have no real prospect of success.

Applications for protective expenses orders

58A.3-(1) An application for a protective expenses order shall be made by motion.

(3) An application for a protective expenses order may be made in relation to a reclaiming motion at any stage of the proceeding whether or not an application for such an order was made, or an order granted, at first instance.

(4) A motion mentioned in paragraph (1) shall –

(a) set out why the applicant is seeking the order;

(b) be accompanied by any supporting evidence, which the applicant intends to refer to in making the application.

(c) set out the terms on which the applicant is represented;

(d) be accompanied by a schedule estimating –

(i) the expenses of the applicant in relation to the proceedings in respect of which the order is sought; and

(ii) the expenses of each other party for which the applicant may be liable in relation to the proceedings in respect of which the order is sought;

(e) in the case of an application for liability in expenses to be limited to an amount lower or, as the case may be, higher than a sum mentioned in rule 58A.4, set out the grounds on which that lower or higher figure is applied for.


Determination of terms of a protective expenses orders

58A.5-(1) In deciding the terms of a protective expenses order, the court shall (subject to rule 58A.4(1) take into account all the circumstances, including-

(a) the need to ensure that it is not prohibitively expensive for the applicant to continue with the proceedings;

(b) the extent to which the applicant would benefit (whether financially or otherwise) if successful in the proceedings to which the order would apply;

(c) the terms on which the applicant is represented;

(d) whether and to what extent the applicant is acting on behalf of another person which would have been able to bring the proceedings himself, herself or itself; and

(e) whether and to what extent the applicant is willing to limit the expenses which he or she would be able to recover from another party if successful in the proceedings to which the order would apply.

(2) The court shall not make a protective expenses order until it has given all of the parties an opportunity to be heard”.

The evidential material before the Lord Ordinary
[7] A very significant amount of documentary material was provided on behalf of the petitioner, relating to his financial circumstances and his interest in Craigengillan Estate and the Dark Sky Observatory. We do not consider it appropriate for us to set out at length the content of this material, much of which might be described as confidential to the petitioner. However, it was indicated at the hearing before us that the petitioner consented to the inclusion in this opinion of such material as we considered necessary to give the factual context for this opinion. The following is a summary of the salient points in the documentary materials before the Lord Ordinary.

[8] The petitioner lodged two affidavits setting out the background of his involvement with Craigengillan, and his financial circumstances. He described himself as a chartered surveyor, organic sheep farmer and forester. He bought the Craigengillan Estate in about 2000, funding the purchase from his own earnings as a chartered surveyor. At the time of purchase Craigengillan was in a derelict state; the petitioner has restored it and used it as a catalyst for community regeneration in the former mining community of Dalmellington. Craigengillan is included in the inventory of Historic Gardens and Designed Landscapes compiled by Historic Scotland. It is described as a rare example of a complete and unfragmented estate landscape started in the 16th century and held in one family for almost 400 years. It is one of only four designed landscapes in the country to achieve the highest rating (outstanding) for each of the seven criteria employed by Historic Scotland in its assessments. It lies within the Galloway and Southern Ayrshire UNESCO Biosphere; the petitioner is a board member of the Biosphere Partnership Board and chair of the Galloway and Southern Ayrshire Biosphere Scottish Charitable Incorporated Organisation.

[9] In 2009 the International Dark Sky Association designated a large part of the Galloway Forest which adjoins Craigengillan, as the first gold tier Dark Sky Park in Britain and only the second in Europe. The petitioner was the founder, and remains a trustee, of the Scottish Dark Sky Observatory; he owns the land on which the Observatory is sited, and lets it to the Observatory at a rent of £1 per annum. The Observatory attracts increasing numbers of visitors and brings employment and economic benefits to the community.

[10] The petitioner farms the Craigengillan Estate, producing organic lamb and managing the woodlands. He has developed a riding stable and has restored two cottages for holiday letting. The petitioner...

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