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Dulce Packard And Others For Judicial Review

Judgment Cited authorities 24 Cited in 1 Precedent Map Related
Vincent
JurisdictionScotland
JudgeLord McEwan
Neutral Citation[2011] CSOH 93
Year2011
Published date27 May 2011
Date27 May 2011
CourtCourt of Session
Docket NumberP1393/10

OUTER HOUSE, COURT OF SESSION

[2011] CSOH 93

P1393/10

OPINION OF LORD McEWAN

in the Petition of

DULCE PACKARD and OTHERS

Petitioners;

for

JUDICIAL REVIEW

________________

Petitioners: J D Campbell, QC et Findlay; DLA Piper Scotland LLP

First Respondents: Duncan; Scottish Government Legal Directorate

Second Respondents: Martin, QC et Burnett; Burness LLP

27 May 2011

[1] For many years now it has been Government policy to encourage the development and use of renewable energy from natural sources. It avoids the dependence on fossil fuels and the proliferation of greenhouse gases and global warming. "Green" energy is a serious matter and much investment has been made to promote it. To that end many "wind farms" have sprung up in Scotland to produce electricity which can then be connected to the National Grid. Some of these have had to be put in areas of natural beauty. One such, Fallago Rig, is the subject of the case before me. Its proposed site is in the Lammermuir Hills in the Borders.

[2] The developer's proposals have been resisted by landowners, residents and other interested groups. There have been two public inquiries costing much time and money. There is voluminous correspondence, and even the proper defence of the realm has played a major part as will be seen.

[3] I look first at the petition and answers to identify the areas that were ultimately argued to me. It is produced as an adjusted Record and I do not need to dwell on it at length since it is reflected in the arguments presented to me and focussed in the pleas-in-law. It seeks judicial review in the form of reduction. The interdicts are a separate matter. Articles 1/4 give the procedure leading to the decision under challenge in Articles 5 and 6 (as amended). The articles relating to bias and natural justice begin at Article 9 and run on to Article 26. The two legal concepts appear to be merged. The ultra vires Articles begin at 34; that relating to condition 35 to 43 and reasons 44 to 51.

[4] As I read the pleadings there is no separate challenge to the reasons in the Minister's decision letter although I heard argument about that. Nor did I understand these to be any challenge to the report of the first Inquiry but Articles 47 and 48 appear to suggest one.

[5] A number of authorities were fully canvassed before me and I list these hereunder, viz:

· Porter v Magill [2002] 2 AC 357

· Helow v Secretary of State [2008] 1 (ii) WLR 2416

· Davidson v Scottish Ministers (No.2) 2005 1 SC (HL) 7

· Bovis Homes Ltd v New Forest District Council [2002] EWHC 483 (Admin)

· Ghadami v Harlow District Council [2004] EWHC 1883 (Admin)

· R (Lewis) v Redcar and Cleveland Borough Council [2009] 1 WLR 83

· R (Alconbury etc.) v Secretary of State etc. [2003] 2 AC 295

· Tesco Stores Limited v Highland Council [2011] CSOH 11

· London and Clydeside Estates Ltd v Secretary of State for Scotland 1987 SLT 459

· R v Secretary of State ex parte Fayed (unreported) 26 July 2000 Court of Appeal

· Grampian Regional Council v Secretary of State for Scotland 1984 SC (HL) 58

· Uprichard v Fife County Council 2000 SCLR 949

· Edgar Road Property Company LLP v Moray Council and British Land Company plc [2007] CSOH 88

· R (Redcar etc.) v Secretary of State for B, E and R [2008] EWHC 1847 (Admin)

· British Railways Board v Secretary of State for the Environment [1993] 3 PLR 125

· Save Britain's Heritage v No.1 Poultry Ltd [1991] 1 WLR 153

· Bolton MDC v Secretary of State [1995] 3 PLR 37

· Westminster Renslade Ltd v Secretary of State (1984) 48 P & CR 255

· Aberdeenshire Council v Scottish Ministers 2008 SC 485

[6] A number of other cases were mentioned in argument without being gone into either at all or in any detail. These were, viz:

· R (Condron) v National Assembly for Wales [2007] 2 P & CR 4

· Co-op Group v Highland Council [2008] CSOH 28

· McAllister v Scottish Legal Aid Board 2011 SLT 163

· Gatty v Maclaine 1920 SC 441

· Armia Ltd v Daejan Developments Ltd 1979 SC (HL) 56

The undernoted textbooks were looked at in various passages, viz:

· Clyde and Edwards: Judicial Review 2000 ed

· Wade and Forsyth: Administration Law 10th ed

[7] In opening for the petitioners Mr Campbell pointed out that a joint minute (No.14 of process) had agreed copy documents. There was a list of those involved, the relevant dates and a map of the area. He drew my attention to the record and made certain deletions which removed the human rights part of the case, viz, Article 6.3, 27, 28 and plea-in-law 2.

[8] The background was an application for the wind farm under section 36(2) of the Electricity Act 1989. Because of the large capacity it needed the consent of the Secretary of State. The structure being above ground required planning permission under section 57 of the Town and Country Planning (Scotland) Act 1997, and if the Secretary of State grants a section 36 consent, that is deemed to be the planning permission. Schedule 8 of the 1989 Act allows and caters for a public inquiry which happened in this case (twice). The duty of the Secretary of State is to consider the report and then make a determination. He may impose conditions. References to the Secretary of State translate, for present purposes, to Scottish Ministers.

[9] Turning to the petition, counsel explained the grounds of challenge to the decision letter of 9 November 2010. The letter was a consent and a deemed grant. He said that he took no issue with the findings of the Reporter (Haywood) at the second inquiry, although his later argument cast doubt on that statement. Interdict he said was not an issue at present due to the undertakings given to the Lord Ordinary on 22 December 2010. The order sought was reduction on five discrete grounds, viz: natural justice, bias, ultra vires, unlawful conditions and inadequate reasons. The main thrust of his argument was bias. At the end of the submission it was not wholly clear to me that two of these were still in issue. Counsel then said that there was a material difference between a predisposition by a Minister to his own policies and a predetermination of an application made under these policies. It was quite lawful for elected representatives to be predisposed to renewable energy but they should not predetermine an application which fits the policy without considering any objections; and they had to act judicially. In this case, following the first inquiry, the Ministers made up their minds to do everything in their power to bring about conditions where consent could be granted. The decision-taker civil servants had had covert conversations with the applicants and the Ministry of Defence (MOD) who were the main objectors. Their efforts were successful since the MOD withdrew their objection and consent was granted.

[10] This showed bias, actual or perceived. Mr Campbell looked in some detail at Porter (I will refer to all the cases in shorthand form listing them fully elsewhere in this opinion). He referred to various passages and in particular paragraph 103. The test was whether a fair minded observer, considering the facts, would think there was a real possibility of bias. Next was Helow where the allegation was made against a Court of Session judge. In Davidson bias was found against a judge based on events when he was a politician. He next referred me to Bovis, where bias was found against a committee and Ghadami where the words and behaviour of the chairman of a planning committee amounted to bias.

[11] Mr Campbell then moved to a detailed examination of the many productions in the case. Most of these are contained in No.6 of process. He told me that at the first inquiry there were objections and in particular from the MOD, who led witnesses on technical matters to do with radar. The inquiry ended on 22 February 2008, having lasted for nine days. The report was given to Ministers in August. It was not published then. It recommended refusal due solely to the MOD objections on national defence grounds. The radar problem counsel summarised in this way. In the airspace up to 5,000 feet above the turbines of a wind farm a plane is invisible to radar. It is "dead airspace". The wind farm "clutters" the radar screen with a snow-like effect. The radar cannot distinguish the clutter from a plane. The area is near to the nuclear power station at Torness. Clearly any hostile aircraft invisible to radar in such an area poses a threat to national security and any undetectable attack on such a facility could be catastrophic locally and nationally.

[12] The correspondence was like a jigsaw with many pieces, but only three days after the inquiry ended, the applicants began the "seduction" of the Scottish Ministers. Here it is not helpful to detail every document, as I shall do that later. However, what was said amounted to this. There was an early invitation by the developers to Mr Alex Salmond, the First Minister. By July they were speaking to Mr John Swinney MSP and Mr Rifkind MP was involved. Discussion on the matter continued over the summer and by September it was clear that some new matters had arisen in the radar context. The problem was that not all interested parties knew this. By October the civil servants were writing to the MOD seeking a meeting. It was clear from all of that that the officials were going back to the main objectors seeking from them information to help them make a different decision. All of this was encouraged by the developer. As the year went on it was plain that the MOD wanted to find a way forward and were hopeful of a resolution. It got to the stage of proposing a meeting at the start of the New Year (2009) and that took place later in London. This led to the examination of a new solution by integrating radar and by the time of the next inquiry, over a year later, radar was the central issue, although some other issues were examined. By February "conditions" were being discussed and what the correspondence showed was that there had...

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