Skye Windfarm Action Group Limted For Judicial Review Of A Decision Of The Highland Council
| Jurisdiction | Scotland |
| Judge | Lord Hodge |
| Neutral Citation | [2008] CSOH 19 |
| Date | 01 February 2008 |
| Docket Number | P1828/07 |
| Court | Court of Session |
| Published date | 30 January 2008 |
SKYE WINDFARM ACTION GROUP LIMITED
for
Judicial review of decisions of Highland Council
1st February 2008
Skye Windfarm Action Group Limited, a company which seeks to prevent inappropriate development of onshore wind power stations, challenged the decision of the Highland Council on 16 May 2007 to grant planning permission to a wind farm at Edinbane, Skye by raising a petition for judicial review of the decision.
AMEC Project Investments Ltd ("AMEC") applied in 2001 to develop a wind farm at Edinbane comprising 28 turbines. As a result of concerns expressed by local people, ornithologists and environmentalists the project was amended on a number of occasions until in August 2006 AMEC proposed a development comprising 18 turbines. Separate applications for temporary planning permission for borrow pits to provide road stone for the on-site roads were also granted planning permission.
The wind farm application raised complex environmental and nature conservation issues. As the project was likely to have significant environmental effects AMEC required to produce an environmental statement in accordance with the Environmental Impact Assessment (Scotland) Regulations 1999. Among the environmental issues raised by objectors was the risk of a peat slide like that which occurred in 2003 at Derrybrien in the Republic of Ireland.
The principal nature conservation issue which caused concern was the effect of the wind farm on the golden eagle and other bird species. In December 2002 the Cuillins Special Protection Area ("SPA") was classified under the Birds Directive (EC Directive 79/409) for the conservation of the golden eagle. As a result the Highland Council had to assess the effect of proposed wind farm and a neighbouring development at Ben Aketil on the SPA. As a result of the environmental and nature conservation concerns and the amendments to the project, the environmental statement became a detailed and rather complex set of documents.
In 2006 the Highland Council approved a non-statutory document called "Highland Renewable Energy Strategy and Planning Guidelines" ("HRES") which was intended to provide guidance to the planning authority and developers in relation to renewable energy proposals in the Highlands. The Council required to consider the Guidelines when determining the planning application for the wind farm.
In challenging the grant of planning permission to the wind farm and the borrow pits, the Skye Windfarm Action Group Ltd submitted (i) that the environmental statement which AMEC had prepared was defective in its form and also in substance in its failure to consider alternatives and flooding risk, and in the initial exclusion from consideration of the effect of the borrow pits; (ii) that certain planning conditions in the permissions for the wind farm and the borrow pits were illegal; (iii) that the Council had acted illegally in considering the borrow pits applications separately from that for the wind farm; (iv) that they had failed to give proper consideration to HRES; and (v) that the Council had failed to conduct a proper assessment of the effect of the proposal on the Cuillins SPA.
The submissions did not succeed. They are discussed as follows: (i) in paras 43-81, (ii) in paras 82-98, (iii) in paras 99-108, (iv) in paras 109-116 and (v) in paras 117-154.
The Court dismissed the petition.
NOTEThis summary is provided to assist in understanding the Court's decision. It does not form part of the reasons for that decision. The full opinion of the Court is the only authoritative document.
Agents
J.D Campbell QC, McConnell; Morton Fraser for Skye Windfarm Action Group Limited
Tel 0141 249 6720 & 0131 247 1000
Mrs Wolffe: Biggart Baillie for Highland Council Tel 0141 228 8000 & 0131 226 5541
| OUTER HOUSE, COURT OF SESSION [2008] CSOH 19 | |
| P1828/07 | OPINION OF LORD HODGE in the petition of SKYE WINDFARM ACTION GROUP LIMITED Petitioners; for Judicial review of decisions of Highland Council dated 16 May 2007 to grant planning permission under the Town and Country Planning (Scotland) Act 1997 for a wind farm development and the extraction of aggregate at land south of Edinbane, Isle of Skye ________________ |
Petitioner: J.D Campbell QC, McConnell; Morton Fraser LLP
Respondents: Mrs Wolffe: Biggart Baillie LLP
1 February 2008
[1] The petitioners challenge the legality of decisions by the Highland Council ("the respondents") dated 16 May 2007 to grant planning permission for a wind farm development and the related extraction of minerals on land approximately two kilometres south of Edinbane and eight kilometres to the east of Dunvegan, Skye. They seek a court order reducing those decisions.
[2] The petitioners are a company limited by guarantee which was incorporated in 2002 with the object, among others, of preventing inappropriate development of onshore wind power stations. They have campaigned against wind farms in Skye.
The decisions under challenge
[3] On 16 May 2007 the respondents granted planning permission to three closely connected developments, comprising the wind farm development and two separate applications for borrow pits to extract aggregate for the construction of the site roads from land in close proximity to the site of the proposed wind farm. As narrated more fully below, in the initial application in February 2002 the developers sought planning permission for twenty-eight wind turbines and also for borrow pits but did not commit themselves to a specific number or location of the borrow pits. In December 2002 the respondents received two separate planning applications for the borrow pits. Thereafter, as a result of revisions to the wind farm proposal, the application which the respondents eventually considered in March 2007 was for a wind farm comprising eighteen turbines.
Title and interest
[4] In their written pleadings the respondents challenged the petitioners' interest to raise the judicial review proceedings. In the event Mrs Wolffe chose not to advance a submission of no interest to sue but reserved the right to raise the issue again should the case go further.
Factual background
(a) The planning status of the wind farm site and the Cuillins Special Protection Area
[5] The planning status of the site of the proposed wind farm has changed with the passage of time. It comprises open moorland which is used for grazing sheep. There are no statutory designations of the site in relation to natural heritage. Both the structure plan, which was approved in March 2001, and the local plan, which was adopted in March 1999, supported renewable energy schemes provided that among other considerations they were not significantly detrimental to their local environment and residential amenity. The site lies within an area which the respondents had identified as a primary research area for wind energy in their "Wind Energy: Regional Policy Guidelines" which they had adopted in March 1995, but that document was superseded by the 2001 structure plan which introduced criteria for the assessment of wind energy proposals.
[6] On 20 December 2002 land nearby was classified under EC Directive 79/409 on the conservation of wild birds ("the Birds Directive") as the Cuillins Special Protection Area ("SPA") for the conservation of the golden eagle. The SPA qualified under Article 4(1) of the Birds Directive because it regularly supported a breeding population of European importance of the golden eagle, an Annex 1 species under that Directive. The site supported eight pairs of golden eagles. They comprised one of the highest density populations in Great Britain.
[7] On 4 May 2006 the respondents approved a document called "Highland Renewable Energy Strategy and Planning Guidelines" ("HRES") as non-statutory supplementary planning guidance which was to be a material consideration in determining applications for planning permission for relevant developments. In HRES the respondents sought among other things to identify areas as preferred locations for national and major onshore wind energy developments and as possible areas in which such developments could be located. HRES provided that in all other areas there was to be a presumption against such development. The identification of the areas was the product of the respondents' Renewable Energy Resource Assessment model, which I discuss in more detail in paragraph 110 below. Under Policy E 7 of HRES the Edinbane site is in an area where there is a presumption against development. Policy E 7 states:
"Elsewhere in Highland there will be a presumption against export wind development. Any proposals for national and major projects will have to overcome a precautionary approach to planning approval. Any development would also need to show that there is no scope for alternative development within other preferred or possible development areas."
[8] The Edinbane site is in close proximity to and may overlap with a grid square identified as a possible area but the majority of the site is covered by the policy E 7 presumption.
(b) The application for the wind farm development
[9] AMEC Project Investments Limited ("AMEC") on 17 August 2001 sent the respondents a scoping report for an environmental statement in relation to the proposed wind farm of up to thirty turbines and asked them for their comments on the report. AMEC sent the scoping report to other bodies including Scottish Natural Heritage ("SNH"), Scottish Environment Protection Agency ("SEPA") and the Royal Society for the Protection of Birds ("RSPB"). On 24 September 2001 SNH wrote to AMEC advising them that further information should be included in the proposed environmental statement. SNH suggested that the number of turbines which the site could accommodate should be assessed in an iterative process in tandem with the assessment of environmental impacts. The information which SNH requested included details of site selection, cumulative impact and alternative...
To continue reading
Request your trial
-
Petition Of Helen Douglas Against Perth And Kinross Council And Rds Element Power Limited
...Ministers 2006 SC 691. 8. R (Edwards) v Environment Agency [2008] UKHL 22. 9. Skye Windfarm Action Group Ltd v The Highland Council 2008 CSOH 19. 10. Jenkins v Gloucestershire County Council [2012] EWHC 292 (Admin). 11. C-260/11 R (Edwards) v Environment Agency (No 2) [2013] 1 WLR 2914. 12.......
-
In An Appeal Under Section 238 Of The Town And Country Planning (scotland) Act 1997 By The Cairngorms Campaign And Others
...(Thames Valley) Ltd v Stevenage Borough Council [2006] 1 WLR 334 at para.21 and Skye Windfarm Action Group Limited v Highland Council [2008] CSOH 19 (Lord Hodge) at paras.[41]-[42]. [75] None of this was challenged in principle by the appellants, and I accept it, subject to the qualificatio......
-
Petition By Helen Douglas Against Perth And Kinross Council And Rds Element Power Limited (interested Party)
...CC, [2004] Env LR 29; R (Edwards) v Environment Agency (No 2), [2013] 1 WLR 2914; Skye Windfarm Action Group Ltd v Highland Council, [2008] CSOH 19. The respondent as planning authority was entitled to have regard to reasonable mitigation proposals: Smith v Secretary of State for the Enviro......
-
Marco Mcginty V. The Scottish Ministers
...406 at para. 106; Belize Alliance of Non-Governmental Organisations v Dept of Environment [2004] UK PC 6 and Skye Windfarm Action Group [2008] CSOH 19 at paras. 41, 62. [18] The respondents argued in the alternative that esto there had been any breach of the 2001 Directive and 2005 Act, the......