Petition Of William Grant & Sons Distillers Limited For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lord Malcolm |
| Neutral Citation | [2012] CSOH 98 |
| Court | Court of Session |
| Date | 13 June 2012 |
| Published date | 13 June 2012 |
| OUTER HOUSE, COURT OF SESSION [2012] CSOH 98 | |
| OPINION OF LORD MALCOLM in the Petition of WILLIAM GRANT & SONS DISTILLERS LIMITED Petitioners; for Judicial Review of a decision of the Scottish Ministers made on 22 December 2011 granting detailed consent under the Electricity Act 1989, section 36 for an application by Dorenell Limited (UK) for the construction of a wind farm on the Glenfiddich Estate, Morayshire ________________ |
Petitioners: J Campbell QC; Findlay, advocate; Balfour + Manson LLP
Respondent: R Crawford QC; Scottish Government Legal Directorate
Interested Party: A Wilson, QC; Biggart Baillie LLP
13 June 2012
[1] The petitioners are part of a group of third party objectors, known as the Speyside Business Alliance, who have objected to a proposed wind farm development. The respondents are the Scottish Ministers. The proposed developers, Dorenell Limited (UK), have also entered appearance. A public local inquiry took place in Dufftown between 19 October and 23 November 2010. The reporter's reasoning, conclusions and recommendations were fully accepted and adopted by the respondents. In these proceedings for judicial review, the petitioners seek to reduce both the conditional consent granted under section 36 of the Electricity Act 1989 and the grant of deemed planning permission under section 57(2) of the Town and Country Planning (Scotland) Act 1997.
[2] Section 36 of the 1989 Act, so far as relevant for present purposes, provides that a generating station shall not be constructed or operated except in accordance with a consent granted by the Scottish Ministers. Such a consent may include such conditions as appear to the Scottish Ministers to be appropriate. Amongst other things schedule 9 provides that, when formulating any relevant proposals, a licence holder shall have regard to the desirability of preserving natural beauty, and shall do what they reasonably can to mitigate any effect which the proposals would have on the natural beauty of the countryside. When considering any relevant proposals for which consent is required under section 36, the Scottish Ministers must have regard to the desirability of, amongst other things, the extent to which the licence holder has complied with the said duties. Similar duties apply in relation to the conservation of flora, fauna and geological or physiographical features of special interest.
[3] Section 57(2) of the 1997 Act provides:
"On granting a consent under section 36 or 37 of the Electricity Act 1989 in respect of any operation or change of use that constitutes development, the Scottish Ministers may direct that planning permission for that development and any ancillary development shall be deemed to be granted, subject to such conditions (if any) as may be specified in the direction".
Subsection (3) provides:
"The provisions of this Act (except Part XI) shall apply in relation to any planning permission deemed to be granted by virtue of a direction under this section as if it had been granted by the Scottish Ministers on an application referred to them under section 46".
[4] In the summary of the report of the inquiry, the reporter explains that the wind farm would be around 8km to the south of Dufftown, and 2km from the northern edge of the Cairngorms National Park. The application proposes 59 turbines on a site extending to 21.5 square kilometres. The wind farm would be operational for 25 years. The reporter proceeded upon the basis that the determining issues in relation to the section 36 application were (i) the need for the wind farm and national energy policy and guidance, (ii) its environmental and other impacts, including tourism and recreation, and economic benefits and impacts, and aviation safety, and (iii) the development plan, other planning policies, guidance and advice, the Cairngorms National Park plan, and the requirements of schedule 9. The determining issues in relation to the decision on whether to direct that planning permission should be deemed to be granted were the same, under exception of the reference to schedule 9.
[5] Overall the reporter concluded that the proposals would make a significant contribution towards meeting and surpassing national renewable energy targets. The site benefited from a good wind resource. The proposals would result in landscape and visual effects of substantial adverse significance, but these would be localised and limited in extent. In his judgment, the landscape in the area has the capacity to absorb the proposals. The landscape and visual effects, including the cumulative effects and the effects on the National Park, were acceptable. He was satisfied that an appropriate layout had been achieved. There would be adverse effects on recreation, most notably on walkers and hillwalkers in the local area. However these did not justify rejection of the proposals. The effects on the key industries of tourism, food and drink, and their brand images, would not justify rejection. The economic benefit arising would be small.
[6] With regard to the proposed mitigation measures, the reporter was satisfied that the effects on birds and other wildlife inhabitats would not be sufficiently adverse to justify refusal. He was satisfied that the integrity of the River Spey Special Area of Conservation and the interests of the two European protected species on site (otters and bats) would not be adversely affected. The proposals were consistent with Scottish planning policy and national advice on renewable energy. They were in accord with the thrust of the development plan, most notably policy ER1 of the adopted local plan, but also policies E6 and E7. They were compatible with the Cairngorms National Park Plan and the Park's four statutory aims. The reporter indicated that if he had found that the proposals were not in accordance with the development plan, he would still have been of the view that this would be a suitable site for the wind farm because the effects, with mitigation, would all be within acceptable limits, and the proposals would be consistent with national planning policy and advice on renewable energy, and wider energy policy. He was of the view that those factors attracted considerable weight, and would override the terms of the development plan.
[7] The reporter commented that, while the local planning authority's supplementary guidance on renewable energy proposals was overdue for review, and did not reflect national advice (which reduced its weight), he believed that the proposals were consistent with the conditions which that guidance set out for wind farms outwith the preferred search area. The reporter also concluded that the terms of schedule 9 of the 1989 Act were satisfied. In these circumstances he recommended to the Scottish Ministers that consent should be granted for the section 36 application, and that the Scottish Ministers should direct that planning permission for the proposed development be deemed to be granted, all subject to conditions under a section 69 agreement. The Scottish Ministers adopted the report in full, and followed the recommendations. In these circumstances the grounds of challenge and the petitioners' criticisms were directed at terms of the report.
[8] The underlying basis and main thrust of the petition, as explained by Mr Campbell, QC, was that, having concluded in terms of the first determining issue that, having regard to national energy policy and guidance, there is a need for the wind farm at this site, the reporter was then "anxious not to find too many things in the way of a consent". The gist of the complaint was that the reporter allowed the decision on determining issue (i) to, in effect, override important adverse factors. Mr Campbell put it this way:
"If the balancing exercise involved a set of scales, the reporter proceeded upon the basis that 'the question of need held down one set of the scales'".
Having balanced the need against the impact, it was submitted that the reporter used that conclusion to decide whether the proposal was or was not in accordance with policy. The reporter approached the whole matter in the wrong manner. Each time the perceived need for the wind farm "weighed against any chance of environmental impact stopping the development". The reporter was "guilty of double counting" in that he put need in the balance at the start, then again when reaching his final planning balance. For example, reference was made to paragraph 7.111 of the report. The reporter recorded that he would still have recommended approval even if the proposals were not in accord with the development plan. He would still be of the view that this would be a suitable site for the wind farm because the effects, with mitigation, would all be within acceptable limits, and it would be consistent with national planning policy and advice on renewable energy, and wider energy policy, all factors which "attract considerable weight".
[9] There was no complaint as to the selection of the determining issues, but it was said that their order reflected the primacy given to the first factor. There was no quarrel as to the scope or coverage of the report. Subject to certain specific issues mentioned later in this opinion, it was accepted that the correct policies and considerations had been recorded and discussed.
[10] Judicial review challenges of such a nature will always face considerable difficulties. Courts of the highest authority have repeatedly stressed that judges should not be tempted to adjudicate upon the merits of the decision before the relevant authority. The court's jurisdiction is of a supervisory nature. Furthermore, if the correct considerations are being assessed, the weight to be given to each in the overall balance is a matter solely for the decision maker, not for the courts.
First ground of challenge
[11] At the hearing the discussion began with a purely legal submission. It concerned the correct approach to the...
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