Petition By The John Muir Trust For Judicial Review Of A Decision Of The Scottish Ministers Dated 6th June, 2014 To Grant Consent Under Section 36 Of The Electricity Act 1989 To Scottish & Southern Energy Renewables For The Erection Of 67 Wind Turbines At Stronelairg, Garrogie Estate, Whitebridge, Fort Augustus Together With Deemed Planning Permission Under Section 57(2) Of The Town And Country Planning (scotland) Act 1997

JurisdictionScotland
JudgeLord Jones
Neutral Citation[2015] CSOH 163
Year2015
Published date04 December 2015
Date04 December 2015
CourtCourt of Session
Docket NumberP843/14

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 163

P843/14

OPINION OF LORD JONES

In the Petition

THE JOHN MUIR TRUST

Petitioner;

for

Judicial Review of a Decision of the Scottish Ministers dated 6th June, 2014 to grant consent under Section 36 of the Electricity Act 1989 to Scottish & Southern Energy Renewables for the erection of 67 wind turbines at Stronelairg, Garrogie Estate, Whitebridge, Fort Augustus together with deemed planning permission under Section 57(2) of the Town and Country Planning (Scotland) Act 1997

Petitioner: Sir Crispin Agnew of Lochnaw Bt. QC; Cameron, advocate; Drummond Miller LLP

Respondents: Mure QC; Byrne; Scottish Government Legal Directorate

Interested Parties: Wilson QC; Gill; CMS Cameron McKenna LLP

4 December 2015

Introduction

[1] The petitioner (“the trust”) describes itself as an environmental charity. One of its principal objectives is “… to conserve and protect wild places with indigenous animals, plants and soils for the benefit of present and future generations”. The respondents are the Scottish Ministers (“the Ministers”), one of whose departments is the Energy Consents and Deployment Unit (“ECDU”). SSE Generation Limited (“SSEG”) and SSE Renewables Developments (UK) Limited (“SSER”) have joined the proceedings as interested parties.

[2] On 29 June 2012, SSEG applied for consent under section 36 of the Electricity Act 1989 for the construction and operation of an 83 turbine wind powered electricity generating station at Stronelairg, Garrogie Estate, Whitebridge, Fort Augustus. SSER has acted as development agent for SSEG and has managed the environmental impact assessment and decision-making processes on behalf of SSEG. SSEG and SSER are referred to interchangeably in this opinion as “the developers”. On 6 June 2014, the Ministers granted consent for the construction of 67 turbines, together with deemed planning permission under section 57(2) of the Town and Country Planning (Scotland) Act 1997 (“the consent”). In these proceedings, the trust seeks reduction of the consent.

[3] In their decision letter of 6 June 2014, the Ministers intimated that they had determined not to hold a public local inquiry. Under the heading “Consideration of a Public Local Inquiry (PLI)”, they stated that they had taken into account a total of 96 objections “and all material considerations”. (Number 6/1 of process) They expressed the view that there were no significant issues which had not been adequately considered “in the application, Environmental Statement and Supplementary Environmental Information, consultation responses and third-party representations and that they have“ sufficient information to be able to make an informed decision on the Application without the need for a PLI.”

[4] The consent is challenged on the grounds, put shortly, that:

1. the Ministers acted unlawfully and/or unreasonably in granting the consent without the supplementary environmental information (“SEI”), referred to in the decision letter, being advertised and/or being consulted on;

2. the Ministers acted unlawfully and/or unreasonably in granting the consent, notwithstanding Scottish Natural Heritage’s (“SNH”) objection in principle to the windfarm on the ground of its impact on wild land, and failed to give adequate reasons for not following SNH’s advice; and

3. the reasons for their consent which were given in the decision letter are inadequate.

The location of the proposed windfarm

[5] The site of the proposed windfarm lies to the east of the Glendoe reservoir in the Monadhliath Mountains, within an area of land bounded by the A9 and A82 roads. The area was designated by SNH on 25 April 2013 as a core area of wild land (“CAWL”), having been designated as a search area for wild land (“SAWL”) in 2002. (Numbers 6/41 and 6/45 of process) SNH rates “wildness” from low to high, and, according to the trust, the site was rated high. (Number 6/13 of process) As a result of the consent, the wild land designation was removed from the area. (Number 6/42 of process)

Key events

[6] By email, dated 9 July 2012, the Energy Division of the Scottish Government’s Energy and Climate Change Directorate requested SNH’s advice on the Stronelairg windfarm application. SNH responded by letter, dated 18 September 2012, which ran to 15 pages of text. In summary, its advice was that the proposed development would cause significant adverse effects on the Monadhliath SAWL “such that the SAWL would no longer be considered wild land.” For that reason, SNH objected in principle to the siting of a windfarm in that location “as it raises natural heritage issues of national interest.” (Number 6/5 of process)

[7] Following email correspondence between the ECDU and SNH in November 2012, SNH provided further landscape advice in respect of the proposed development, by letter dated 7 December 2012. That advice concerned the Cairngorms National Park and was to the effect that the proposed development would result in landscape, visual and cumulative impacts around parts of the south western boundary of the national park. SNH reiterated its objection in principle to the proposed development. (Number 6/6 of process)

[8] On 24 January 2013, The Highland Council (“THC”) wrote to the developers, noting that THC had had a number of meetings with them over the preceding few weeks, during which THC asked for “a range of amendments” to be made to the scheme. (Number 7/12 of process) Appended to the letter was a table, outlining the revisions that THC had requested and asking the developers to confirm that they were minded to accept these changes. By letter, dated 25 January 2013, the developers did so. (Number 7/13 of process)

[9] On 6 February 2013, THC’s head of planning and building standards signed off a 62 page report to the council’s South Planning Applications Committee (“SPAC”), which was due to meet on 19 February. The report recommended that THC should raise no objection to the proposed development, subject to a number of amendments, and suggested that conditions be submitted to the Scottish Government for its consideration. (Number 6/7 of process, “the THC report”) I say more about the content of the report later in this opinion. On 18 February, the trust lodged with THC a document entitled “Critique for Members’ Consideration”, in which it expressed its strong opposition to the proposed development and its reasons for that opposition. (Number 6/9 of process).

[10] By letter, dated 2 May 2013, THC advised the Scottish Government that, at its meeting on 19 February 2013, the SPAC decided to defer determination of the application, pending a site visit. (Number 11/3 of process) The site visit took place on 8 April 2013, and the application was considered at a special meeting of the SPAC later that day. The decision of the meeting was to agree with the recommendations in the report, subject to minor amendments and additional conditions. (Number 11/3 of process)

[11] On 7 June 2013, the Scottish Government wrote to West Coast Energy Ltd, intimating refusal of consent and deemed planning permission by them for the construction and operation of a proposed electricity generating station at Dunbeath Estate, Caithness, following a public inquiry which was held in July 2011. (Number 6/32 of process)

[12] In a document entitled “Core Areas of Wild Land 2013 Map Scottish Natural Heritage’s Advice to Government – March 2014”, SNH advised, among other things, that a new map, entitled “Wild Land Areas 2014”, should replace the CAWL 2013 map. (Number 6/48 of process) SNH proposed that the term “Wild Land Areas” should replace the name “Core Areas of Wild Land”, explaining that the latter had caused confusion. A “key conclusion” of the advice was that the map of wild land areas should be considered a useful and important strategic tool in decision-making. SNH advised that the application of the map would be enhanced by two further pieces of work that would be developed during 2014 and 2015. In Annex C to the advice, entitled “Key issues noted for identified wild land areas”, the description of area 17, “Monadhliath”, included the proposed development site. The wild land areas map was published on 15 April 2014, and was sent to the Scottish Government on 19 May 2014, together with SNH’s advice. (Numbers 6/49 and 6/54 of process)

[13] On 8 May 2014, a 227 page report to the Ministers was issued by a reporter appointed by them, in respect of a proposed 43 turbine windfarm development at Glenmorie. (Number 6/33 of process) The reporter concluded, among other things, that the proposed development “would have a significant and adverse impact on wild land to the west of the proposed site, currently identified as a Search Area for Wild Land.” (Paragraph 7.36) She recommended that consent under section 36 of the Electricity Act 1989 should be refused.

[14] In a report, dated 16 May 2014, addressed to the Minister for Enterprise, Energy and Tourism, the ECDU recommended that the Ministers should grant consent for the construction of 67 turbines at Stronelairg, subject to mitigation conditions being imposed. (Number 6/2 of process) As we have seen, such consent was given by decision letter, dated 6 June 2014. As a consequence, a revised wild land areas map was produced on 11 June 2014, and revised SNH advice to government was issued on 16 June 2014, both showing the removal of the proposed development site’s wild land area designation.

The statutory scheme

[15] The trust contends that, in the decision-making process, the Ministers breached certain provisions of The Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2000 (“the EIA regulations” or the “Scottish regulations”, depending on the context). It is convenient to say something about these regulations now.

[16] There was general agreement among the parties that the EIA regulations fall to be construed sympathetically with the Environmental Impact Assessment Directive...

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