Wildland Ltd and the Welbeck Estates v Scottish Ministers [2017] CSOH 113

A recent decision in the Court of Session has again drawn attention to the requirement for decision-makers to give adequate reasons for their decision in planning matters.

Last month the Outer House of the Court of Session dismissed a petition by Wildland Limited and The Welbeck Estates (the “Petitioners”) to set aside a decision of the Scottish Ministers to grant consent and deemed planning permission for the Creag Riabhach Wind Farm on the Altnaharra Estate in Sutherland (the “Wind Farm”).

Background

In October 2016, the Scottish Ministers (the “Ministers”) granted consent under Section 36 of the Electricity Act 1989 (the “1989 Act”) and deemed planning consent under Section 57(2) of the Town and Country Planning (Scotland) Act 1997 for the Wind Farm.

The Wind Farm comprises 22 turbines with a generating capacity in excess of 50MW. Located 6.5km southwest of Altnaharra and running along the western side of Strath Vagastie, the site was not subject to any environmental designations at the time of the application.

The application for the development was submitted prior to the publication of the National Planning Framework 3 and Scottish Planning Policy 2014 (“SPP”). SPP now incorporates Scottish Natural Heritage’s (“SNH”) map of Wild Land Areas. At the time of the decision to grant consent, the Wind Farm was situated between two Wild Land Areas, and five turbines were located within Wild Land Area 37 (Foinaven – Ben Hee).

SNH objected to the Wind Farm on the grounds that it would have a negative effect on wild land. The Ministers accepted this advice, noting that granting consent (in respect of the five turbines within the Wild Land Area) would be contrary to SPP. However, the Ministers concluded that this must be weighed against the benefits of the development as a whole in relation to net economic benefits and as a contribution to renewable energy targets. The Ministers found that these factors should have greater weight attributed to them, and consent was granted.

The Ministers’ decision was challenged by the Petitioners.

Arguments for the Petitioners in the Outer House

The Petitioners argued that the decision should be set aside on two grounds:

1. the Ministers failed to give proper, adequate and intelligible reasons for their rejection of advice given by SNH in respect of landscape and visual impact. As SNH was a statutory adviser to the Ministers, there was an obligation on the Ministers to give “clear and cogent” reasons for rejecting their advice.
2. the Ministers failed to recognise the protection given to wild land in SPP, which should constitute a material consideration in making a decision. Moreover, as applications for all previous commercial scale wind turbines within wild land had been refused, the Ministers had to be consistent in their decision-making.

Outer House Decision

The Petitioners’ arguments were unsuccessful, and the Court dismissed the petition.

On the first argument, the Court noted that a distinction must be drawn where a decision-maker disagrees with a planning judgment made by a reporter or inspector and specialist advice on a material issue. A Reporter’s judgment will be substantive, and the Reporter will be assumed to have considered all material considerations (including specialist advice from statutory consultees) as part of reaching his or her recommendation. In a case where the Ministers depart from the Reporter’s recommendation, they must set out clear and cogent reasons for doing so. In the present case, the planning authority’s report comprehensively set out the circumstances of the application, including the views of SNH. In their decision, the Ministers gave proper, adequate and intelligible reasons for agreeing with the local authority and, therefore, they satisfactorily addressed the points raised by SNH.

Moreover, the Court noted that a planning authority has a special position in the decision-making process by virtue of the 1989 Act, putting it on par with other statutory advisers (including SNH). Provided proper, adequate and intelligible reasons are given, the Ministers are entitled to prefer the opinion of the planning authority to other statutory advisors.

In relation to the second argument, the Court noted that SPP is not an “absolute protection against any development” and that it is not for the Court to assess present policies against historic ones but to determine whether the decision-maker has correctly applied the policy in force at the time.

Whilst the Petitioners had argued that the decision was inconsistent with previous decisions, they did not argue that this inconsistency was a material consideration which the Ministers failed to consider. The Court seemed reluctant to agree that such inconsistency would be a material consideration, in any event, noting that it is not for the courts to comment on the inconsistencies between planning decisions, as each application is decided on its individual facts and merits by the appropriate planning decision-maker.

Comment

The Court reaffirmed the decision in North Lanarkshire Council v Scottish Ministers 2016 CSIH 69, which set out the standards of intelligibility required in reaching a decision, particularly where the Ministers overrule or disregard specialist advice or the recommendation of a Reporter.

The Court also noted that, where a decision-maker is departing from advice given by a statutory consultee, it must examine the nature of the advice, the context in which it is given and its relationship with material considerations and determining issues. Where there is evidence and advice from multiple statutory consultees (which may include a planning authority), the decision will have a subjective element, and the decision-maker may choose to prefer the evidence of one statutory consultee over another.

Co-authored by Kathryn Nolin