Scottish wildcat group’s challenge to windfarm permission unsuccessful

Wildcat Haven, a community interest company, sought to challenge the decision of the Scottish Ministers to grant permission for construction of a new wind farm at Clashindarroch Forest in Aberdeenshire. The Court held that Wildcat Haven had failed to establish that the decisions were attended by any error of law and there was therefore no scope for intervention by the court.

In June 2023 Vattenfall’s application for the construction of a new wind farm in Clashindarroch Forest was granted under section 36 of the Electricity Act 1989 by the Scottish Ministers. The petitioners, Wildcat Haven, sought to challenge this decision in a judicial review case which attracted much media attention.

Background

In 2019, Vattenfall applied for consent for the development of a wind farm at Clashindarroch Forest which is home to an unknown number of wildcats.

Vattenfall provided the Scottish Ministers with an Environmental Impact Assessment and Habitat Management Plan which proposed various mitigation measures aimed at mitigating disturbance to the wildcat population by the proposed development. A public inquiry before a reporter appointed by the Scottish Ministers took place in 2021-2022. The initial report recommended refusal of the application on landscape and visual grounds.  The Scottish Ministers then remitted the application back for further consideration in light of changes to national planning policy in NPF4 (Fourth National Planning Framework). The reporter subsequently recommended approval of the application and the Scottish Ministers granted the application. 

Wildcat Haven sought to challenge the decision on the basis that the reporter had failed to have proper regard to the “mitigation hierarchy” set out in policy 3(b)(iii) of NPF4 which applied in this case.

Policy 3 (b) of NPF4 states that:

“Development proposals for national or major development, or for development that require an Environmental Impact Assessment will only be supported where it can be demonstrated that the proposal will conserve, restore and enhance biodiversity, including nature networks so they are in a demonstrably better state than without intervention.”

The Policy goes on to say such proposals will require to include various information including, under Policy 3(b)(iii), “an assessment of potential negative effects which should be fully mitigated in line with the mitigation hierarchy prior to identifying enhancements;…”

The mitigation hierarchy, which can be found within Annex F to the NPF4, “indicates the order in which the impacts of development should be considered and addressed.

These are:

i. Avoid – by removing the impact at the outset

ii. Minimise – by reducing the impact

iii. Restore – by repairing damaged habitats

iv. Offset – by compensating for the residual impact that remains, with preference to on-site over off-site measures”

Wildcat Haven argued that the approach taken by the reporter when applying this policy was incorrect and that, had the reporter applied the policy, and the mitigation hierarchy properly, she would have concluded that the measures proposed by Vattenfall were not in compliance with NPF4. The policy required the decision maker, in considering the measures proposed to mitigate the disruption, to ‘adopt a sequential and specifically-weighted approach’.

The Scottish Ministers and Vattenfall argued that the policy required no such approach but sought only to highlight how developers should set out their proposals to present information more helpfully to decision-makers.

Judgment

The ultimate question for the court to consider was whether the reporter and the Scottish Ministers had properly interpreted and applied policy 3(b)(iii) of NPF4 when considering the application. If they had not, there could be scope to have this decision reduced.

Lord Sandison concluded that it was the interpretation of the policy put forward by the Ministers and Vattenfall that was to be preferred for three reasons:

1. Firstly, there was nothing in the policy which suggested that the decision-maker’s decision as to the sufficiency of the mitigation measures, or whether those measures corresponded adequately to the mitigation hierarchy, was to be constrained by anything other than the implicit requirement that the decision be rational and based on the matters indicated in the policy.
2. Secondly, the Petitioner’s interpretation would effect a considerable change to the significance of the mitigation hierarchy proposals that the policy applied to (national and major developments and developments requiring an EIA). No intention to make such a policy change could be seen in any of the policy discussions or consultations in the lead up to the introduction of NPF4.
3. Thirdly, NPF4 formed part of the development plan and was therefore a material consideration that required to be taken account of when deciding applications under section 36 of the 1989 Act. Conventionally, the weight to be given to material considerations was, Lord Sandison stated, ‘up to the point of irrationality’.

Finally, Lord Sandison noted that even if he had found that the reporter and the Ministers had materially misunderstood Policy 3(b)(iii), he would have been unable to conclude that the ultimate decision would have been any different. The consent had clearly depended on a careful balancing of many issues and required the exercise of planning judgment. He would have been ‘diffident in the extreme’ about predicting what the outcome of the application would have been in that event since that exercise would require knowledge and skills which the court did not possess. 

Comment

This is the first decision of the courts that we are aware of that has involved the interpretation of NPF4.  It will be interesting to see whether the fact that NPF4 gives increased prominence to environmental/climate considerations in a planning context will lead to an increased number of challenges of this nature.  This decision is, notably, in line with the general approach of the courts in judicial review challenges of this nature where the courts tend to adopt a non-interventionalist approach that often leads to the original decision maker’s conclusions being upheld.

Article co-authored by Qaila Sarwar, Trainee Solicitor at CMS.