John Simson For Judicial Review Of A Decision Of Kincardine And Mearns Area Planning Committee Of Aberdeenshire Council
| Jurisdiction | Scotland |
| Judge | Lord Eassie,Lord Mackay of Drumadoon,Lord Abernethy |
| Neutral Citation | [2007] CSIH 10 |
| Published date | 25 January 2007 |
| Court | Court of Session |
| Date | 25 January 2007 |
| Docket Number | P/2139 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Abernethy Lord Eassie Lord Mackay of Drumadoon | [2007] CSIH 10 P/2139/05 OPINION OF LORD ABERNETHY in RECLAIMING MOTION in the Petition of JOHN SIMSON Petitioner and Reclaimer: for Judicial Review of a decision of Kincardine and Mearns Area Planning Committee of Aberdeenshire Council _______ |
Act: J. Campbell, Carruthers; Thorntons-Law (Petitioner and Reclaimer)
Alt: O'Carroll; Shepherd & Wedderburn (First Respondent): C. Campbell, Q.C.;
CMS Cameron-McKenna (Second and Third Respondents)
25 January 2007
Introduction and background
[1] The petitioner and reclaimer in this petition for judicial review resides in a 17th century Grade A listed house known as Gallery, by Montrose, Angus. The first respondents are Aberdeenshire Council. The petition relates to the grant by the Kincardine and Mearns Area Planning Committee of the first respondents of planning permission for the erection of eight wind turbines, a substation, access tracks and ancillary development at Tullo Farm, Laurencekirk, Aberdeenshire ("the development"). The application for planning permission was at the instance of West Coast Energy Limited, The Long Barn, Waen Farm, Nercwys Road, Mold, Flintshire. They are the second respondents. Tullo Wind Farm Limited, whose agents are the second respondents, have an interest in the petition. They are the third respondents.
[2] The petition seeks judicial review of a decision on 20 July 2005 by the Area Planning Committee to issue a grant of full planning permission for the development. It is averred that the decision was ultra vires of the first respondents in that they failed to carry out their statutory obligation to have special regard to the desirability of preserving the building or the setting of Gallery in terms of the Planning (Listed Buildings and Conservation Areas)(Scotland) Act 1997 section 59(1). The petitioner seeks (in Statement 11 of the petition), inter alia, (1) declarator that that planning permission was ultra vires and therefore null and of no effect; and (2) an order quashing the planning permission and directing that the application be returned to the first respondents for re-consideration in light of the requirement of section 59(1) of the said Act. The relevant pleas-in-law for the petitioner are in the following terms:-
"1. The (first) respondent having acted irrationally and perversely, et separatim ultra vires in issuing the said planning permission, declarator should be pronounced to that effect.
2. The (first) respondent having acted irrationally and perversely, et separatim ultra vires in issuing said planning permission, it should be quashed."
[3] The relevant pleas-in-law for the first respondents are as follows:-
"1. In the circumstances the petitioner is barred by mora from insisting upon these proceedings and seeking the order craved in the petition.
...
4. The decision of the (first) respondent not being irrational, perverse or ultra vires, the orders sought should not be pronounced and the petition should be dismissed."
[4] The relevant pleas-in-law for the second and third respondents are as follows:-
"1. In the circumstances hereinbefore averred, the petitioner is barred by mora from insisting upon these proceedings and in seeking the orders sought in the petition.
...
4. The decision complained of being reasonable et separatim lawful the orders sought should not be pronounced."
[5] By interlocutor dated 2 June 2006 the Lord Ordinary, inter alia, repelled the petitioner's first and second pleas-in-law, sustained the first respondents' first and fourth pleas-in-law, sustained the second and third respondents' first and fourth pleas-in-law and refused to grant the orders sought in Statement 11 of the petition heads (1) and (2). It is against that interlocutor that the petitioner now reclaims.
The legislative structure
[6] The legislative provisions which apply to this case are helpfully set out in the Opinion of the Lord Ordinary as follows:-
"[3] The Town & Country Planning (Scotland) Act 1997, as amended, provides:
'37.--- (1) Where an application is made to a planning authority for planning permission -
(a) subject to sections 58 and 59, they may grant planning permission, either unconditionally or subject to such conditions as they think fit, or
(b) they may refuse planning permission.
. . . .
(3) Subsection (1) has effect subject to sections 34 and 35 and to the following provisions of this Act, and to sections 59(1), 60 and 65 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997.'
The Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 provides:
'59. --- (1) In considering whether to grant planning permission for development which affects a listed building or its setting, a planning authority or the Secretary of State, as the case may be, shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses.'
. . . .
'60.--- (1) This section applies where an application for planning permission for any development of land is made to a planning authority and the development would, in the opinion of the authority, affect the setting of a listed building.'"
The ensuing subsections of section 60 make provision for advertisement and the taking into account of representations received within 21 days of that advertisement. The Opinion of the Lord Ordinary then continues by setting out the following provisions:-
"[4] The Environmental Impact Assessment (Scotland) Regulations 1999, as amended, provide :
'2. - (1) . . . . "environmental information" means the environmental statement including any further information, any representations made by anybody required by these Regulations to be invited to make representations, and any representations duly made by any other person about the environmental effects of the development;
"environmental statement" means a statement -
(a) that includes such of the information referred to in Part I of
Schedule 4 as is reasonably required to assess the environmental effects of the development and which the applicant can, having regard in particular to current knowledge and methods of assessment, reasonably be required to compile, but
(b) that includes at least the information referred to in Part II of
Schedule 4;'
'3. - . . . . (2) The relevant planning authority or the Scottish Ministers shall not grant planning permission pursuant to an application to which this regulation applies unless they have first taken the environmental information into consideration, and they shall state in their decision that they have done so.'
'10. - (1) A person who is minded to make an EIA application may ask the relevant planning authority to state in writing their opinion as to the information to be provided in the environmental statement (a "scoping opinion").
(2) A request under paragraph (1) shall include -
(a) a plan sufficient to identify the land;
(b) a brief description of the nature and purpose of the development and of its possible effects on the environment; and
(c) such other information or representations as the person making the request may wish to provide or make.' . . . . "
For the avoidance of doubt we should add that the application for planning permission in this case was an EIA (Environment Impact Assessment) application within the meaning of the 1999 Regulations and was an application to which regulation 3 applied.
The facts
[7] For the purposes of this reclaiming motion there was no dispute as to the facts of the case. They are set out in the Opinion of the Lord Ordinary as follows:
"[5] The petitioner lives in a 17th century house called 'Gallery'. Gallery is a Category A listed building located in the area of Angus Council. Category A is the category of listing allocated by Historic Scotland to buildings in Scotland of national or international importance, either architectural or historic, or fine, little altered examples of some particular period, style or building type. Gallery is a building of national importance.
[6] An application for full planning permission dated 6 October 2003 was submitted to the first respondents, in name of the third respondents specifying the second respondents as agent. The application sought planning permission for erection of eight wind turbine generators, a sub-station, the construction of access tracks and ancillary development. Gallery is located approximately 9.2 kilometres to the south-west of the location of the nearest turbine in the development. The application for planning permission was submitted along with supporting documentation which included a document called by the second and third respondents an environmental statement in support of the application. The said statement was treated by the first respondents as an environmental statement for the purposes of the Environmental Impact Assessment (Scotland) Regulations 1999 as amended (hereinafter referred to as the 1999 Regulations). The environmental statement had been developed out of a scoping exercise in which the views of interested parties and consultees were sought in particular about methodology. The scoping report was dated 13 September 2002. Discussions on behalf of the second and third respondents took place with the first respondents and various consultees including Scottish Natural Heritage and Angus Council. As a result of this process, the second and third respondents developed the scope of the environmental statement. In particular, the area of the original proposed study area was extended and the number of selected viewpoints which were part of the methodology to assess landscape and visual impact were increased. This was done to reflect concerns of Scottish Natural Heritage which specifically asked that an assessment should be made of the historic gardens and landscapes at Arbuthnott House,...
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