(FIRST) NICOLA BROWN AND (SECOND) EDNA BOOTH AGAINST A DECISION OF THE SCOTTISH MINISTERS DATED 23RD JULY 2014
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 49
XA124/14
Lady Paton
Lady Smith
Lord Bracadale
OPINION OF THE COURT
delivered by LADY SMITH
in the appeal
by
(FIRST) NICOLA BROWN; and (SECOND) EDNA BOOTH
Appellants;
Against
a decision of
THE SCOTTISH MINISTERS, dated 23rd July, 2014
Respondents:
Appellants: Campbell QC, Pirie; Balfour & Manson LLP
Respondents: Dean of Faculty, Barne; The Scottish Ministers
30 June 2015
Introduction
[1] An offshore wind farm will be of no benefit if there are no means of transmitting the electricity it produces, to the national grid. Accordingly, planning consent having been granted for such a wind farm off the coast near Aberdeen, permission was sought for the construction of two electricity substations, a corridor for electricity cables and various associated and ancillary works so as to achieve the effective export of electricity from the wind farm onshore and onwards to the national grid.
[2] The local authority refused permission on 22 November 2013 and the developer appealed to the respondents on 9 January 2014. The respondents appointed a reporter to determine the appeal. He commenced his task in February 2014. By decision dated 23 July 2014, he allowed the appeal and granted planning permission subject to conditions.
The issues
[3] The appellants raise three issues:
(i) Whether the procedure adopted by the reporter was unfair in respect that he did not hold an oral hearing?
(ii) Whether the reporter acted irrationally in his assessment of the likely visual impact of the proposed development, thus rendering his decision ultra vires?
(iii) Whether the reporter failed to carry out an environmental assessment which complied with article 3 of Council Directive 2011/92/EU of 13 December 2011 (“the EIA directive”)?
They say that, in the event of any of these questions being answered in the affirmative, then the reporter’s decision falls to be reduced.
Background
The site
[4] The substation site is in an unused area of rough grassland and lies in a shallow valley to the south east of a small village called Blackdog, about two miles north of Aberdeen. The appellants live a little distance away, in houses that lie to the north‑west of it. They object to this development.
[5] The local development plan statement for Blackdog identifies an area referred to as M1 and allocates it for development for up to 600 houses, a school, associated facilities and employment land. The substation site and part of the cable corridor lie within M1, on its southern side.
[6] The site is also in an area which, historically, was used for landfill including the post- war deposit of rubble from bomb – damaged properties in Aberdeen. The former Strabathie landfill site is in the immediate vicinity of Blackdog and was, between 1981 and 1983, licensed for the receipt of inert waste and waste from the construction industry including asbestos waste.
[7] The prior use of Strabathie for the deposition of waste, including asbestos, is well known in the locality and the possibility of disturbance of it and/or other former landfill areas causing harmful dust and/or gases to be introduced into the atmosphere has given rise to one of the main concerns raised by local objectors including the appellants.
[8] The Strabathie site has been the subject of repeated investigation by the local authority’s Environmental Health Service, since 2002. No significant contamination has been found, excepting the presence of asbestos; the findings were not, however, such as to prevent the granting of planning permission for residential development on the Strabathie landfill site in both 2004 and 2005.
[9] In 2006, a study of landfill sites in the area afforded the Strabathie site a risk rating of “very low”.
[10] Site investigations were carried out in relation to the present application by independent professional consultants (SLR Consulting) as part of a detailed environmental study instructed by the developer. They were carried out across the site and involved 21 boreholes and 15 trial pits. SLR reported their findings in a substantial and detailed environmental statement. Appendix 6(e) to the environmental statement, containing some 230 pages, gave details of the onshore investigations. The local authority’s scientific officer, Anne Coles, having had regard to all of these studies, concluded that there was no gross contamination and that they were indicative of the risk of development of the site giving rise to contamination being relatively low. Analysis of soil samples for contamination across the range of relevant contaminants found contamination levels to be below the assessment criteria for a risk to human health and the local authority’s environmental health service expressed itself entirely satisfied with the scope of the laboratory analysis that was carried out. Ms Coles concluded:
“This Service is of the opinion that, provided a suitable gas protection system is installed in the site buildings and a suitable methodology employed to prevent asbestos remaining exposed on the site surface following completion of the works, the application is suitable for the proposed new use and will not impact significantly on the wider environment. Further, following redevelopment the site will not be capable of being determined as contaminated land under Part IIA of the Environment Protection Act 1990.”
Specifically regarding asbestos assessment, asbestos was found within the soils at three of 60 locations investigated. Ms Coles considered that, bearing in mind that it was not possible to examine all soils and subsoils prior to the commencement of the work proposed, further investigative sampling and analysis would not be useful; rather the focus should be on identifying the appropriate methodology for soil screening and other procedures for dealing with asbestos if found during that part of the works involving soil disturbance.
The reporter’s considerations: procedure
[11] Paragraphs 7 and 9 of the Town and Country Planning (Appeals) (Scotland) Regulations 2013/156 applied. The reporter had a discretion. He could determine the appeal without any further representations (paragraph 7) or by means of one or more of the procedures listed in paragraph 9(4), namely:
“(4)….
(a) by means of written submissions;
(b) by the holding of one or more hearing sessions;
(c) by the holding of one or more inquiry sessions;
(d) by means of an inspection of the land to which the appeal relates.”
Where a reporter decides to hold a hearing session, Schedule 1 paragraph 5 applies. It provides for the procedure at the hearing session to be as the reporter determines but subject to paragraph 5(5) which requires that the hearing take the form of “a discussion led by the appointed person and cross-examination is not permitted.” Clearly, it is not envisaged that a hearing session will provide an opportunity for witnesses to be led in evidence and cross examined.
[12] In this appeal, the reporter decided to proceed by means of carrying out a site inspection (on 1 May 2014) and written submissions. The appellants and other residents of Blackdog wanted him to hold a hearing and representations about that were made to him on their behalf but he decided not to do so.
[13] The circumstances founded on by the residents when seeking a hearing were that they unanimously opposed the application and had always done so, that they feared that the development was unsafe because the site was on the old Strabathie landfill, that White Young Green (“WYG”), experts instructed by another objector (Trump International Golf Links), questioned whether investigation of the site had established that the residents’ fears were unfounded, that the local community council supported the residents’ opposition and that the local council had held oral hearings at which evidence about the safety of the site was presented and the outcome was that they supported the residents’ objections.
[14] The reporter considered the requests for an oral hearing but decided that he did not require to hold one; he considered that he was able to gather all the information he required from the appeal papers, from his site inspection, and from written submissions, some of which were responses to specific points raised by him. For example, by a procedure notice dated 22 May 2014, he specifically asked the developer, Ms Coles and Mr John Campbell QC – acting for Trump International Golf Links – to provide information on three matters including Ms Coles’ views on an updated Ground Investigation Report dated October 2013 and its adequacy in the light of the report by WYG, and her comments in response to it having been reported that the Strabathie landfill site was a potential source of carbon dioxide. Ms Coles responded by providing a detailed report dated 11 June 2014 and WYG responded to that report with detailed observations in a report dated 17 June 2014.
The reporter’s considerations: appeal decision notice
Visual Impact
[15] There are two other houses situated close to the boundaries of the overall site, Hareburn House (close to the north eastern corner of the site) and Ceol Na Mara (close to the north western corner of the site).
[16] In his written reasons, the reporter noted that the development would be very prominent when seen from Hareburn House and, from Ceol Na Mara, there would be a prominent view of the buildings. For the occupants of those houses, the impact would, he considered, be “large and adverse” (paragraph 23). At paragraph 24, he continues:
“24. However, in none of these cases do I judge that the visual impact would be unacceptable. The proposed buildings would not be of a scale or character that would result in an overbearing visual impact, particularly as they would be located on the lowest part of the site. As already referred to, they are in the nature of modern industrial buildings, common in urban and semi-urban areas, where many residents have views of them. In essence the situation is no different here. Whilst the change from the current appearance of the site to the proposed development would clearly be a major one as far as the residents affected are concerned, it would not be of a nature that would be considered out of the ordinary in general circumstances. It is not the function of the planning system to protect views from private properties.”
The houses referred to in paragraphs 23 and 24 do not include those in which the appellants reside.
[17] The reporter then discusses various steps that can be taken to ameliorate the visual impact through landscaping and planting schemes (paragraphs 25 – 28), the wider visual impact on properties further afield (paragraphs 26 – 29) and concludes that the development would not have an unacceptable visual impact even from those houses closest to the site, notwithstanding that a small number of houses would experience some loss of amenity. Thereafter, he considers the cumulative visual impact of the offshore wind farm together with this proposed onshore development and concludes that the overall effect of adding the development to the visual impact likely to be created by the offshore turbines will, for the most part, be slight ( paragraphs 32 - 35).
Disturbance of contaminated land
[18] It is clear from the reporter’s written reasons that he was well aware of the nature and extent of local anxiety about what might occur if contaminated land were to be disturbed in the course of the development works. He discusses the possible effects of disturbing contaminated land in considerable detail, over seven pages of his report, between paragraphs 60 and 84. In doing so, he refers to the landfill history of the site and the earlier investigations. He refers to details drawn from SLR’s environmental statement, the WYG reports, Ms Coles’ report, SEPA’s report and from other documents before him including written submissions which, in turn, included submissions lodged by the objectors. He draws his own conclusions. In particular, he concludes that he finds no reason to dismiss Ms Coles’ view that the earlier investigations were indicative of there being a relatively low risk of contamination arising from development of the site, and that that conclusion is being fortified by the fact that the more recent investigations carried out on the instructions of the developer had not revealed any gross contamination. Regarding asbestos, he concludes that the evidence does not show that the risk of exposing the wider community to asbestos fibres would be unacceptable, provided the appropriate precautions are taken such as air monitoring and soil dampening during the works and steps being taken to see that no asbestos is left exposed when they come to an end. The reporter was given no reason to suppose that these well-known precautions would not be taken in the case of this development.
[19] The reporter demonstrates a clear awareness of WYG’s view being that the investigations carried out were not sufficient for the proper determination of risk and he ultimately provides for further risk assessment by attaching the appropriate condition to the planning consent. We refer, in particular, to the summary of his conclusions on this matter, at paragraphs 83 and 84:
“83. In the circumstances, I consider that the purpose of the ground investigations that have been carried out has been to try to identify the likely risks associated with developing the site, so that appropriate measures can be taken to mitigate them. The position expressed in the reports prepared for the Trump Organisation is that the work carried out so far is insufficient to determine the extent of those risks. On the other hand, the council’s Scientific Officer does not consider that further investigations would assist in this respect, as it is not possible to test the whole site and the evidence found so far indicates a low risk of contamination. In addition the appellant’s submissions are that, according to the Association of Geotechnical & Geoenvironmental Specialists’ Guidelines for Good Practice in Site Investigation, the objective of the site investigation is to characterise the ground conditions sufficiently to allow safe and economic designs to be developed and to reduce as far as possible, the occurrence and impact of unforeseen conditions. In this context it is submitted that the site investigation and reporting are fit for purpose, reasonable and based on a robust assessment of risk. The differences between the parties in relation to the adequacy of the site investigations are essentially about methodology. For this reason, I considered that further testing of the respective positions through an oral procedure, either an inquiry or hearing, would not have helped me in reaching a decision on this question. Rather it is a matter of judgment as to the weight to be given to the evidence of the parties. In this case the council is the statutory authority responsible for the oversight of contaminated land. The evidence submitted by its Environmental Health services demonstrates a clear understanding of the issues involved, and I consider that significant weight can be given to it.
84. I acknowledge that some uncertainties remain, but consider that it would be an unreasonable requirement to insist that all such uncertainties are removed before planning permission is granted. Rather there should be adequate contingency measures in place to deal with any contamination encountered during construction of the development. As part of these, more detailed soil sampling within the parts of the site affected by development would help to reduce the degree of uncertainty and identify any contamination “hotspots” that might require treatment. One of the council’s suggested conditions requires the provision of a remedial scheme where the need is identified by the site investigation report. I consider that a more focussed investigation as referred to above would be the appropriate course of action, and I have imposed a condition to this effect.”
The condition to which he refers is condition 1 to the planning consent; a further measure of control arises in respect that it provides that, once the further investigations described have been carried out, a report must be submitted to the local authority for their approval.
Determination of the issues in this appeal
- Oral hearing
[20] It was not disputed that the reporter had a discretion when it came to the question of whether or not to have an oral procedure. Nor was it disputed that, in the course of the procedure that he did adopt, the appellants were afforded the opportunity to engage fully in the written submission procedures. Further, parties agreed that, the issue of the fairness of the procedure having been raised in this ground of appeal, it was for the court to assess the procedure as a whole and determine whether, overall, it was a fair one. Whilst at one point, senior counsel for the appellants, Mr Campbell QC, suggested that an aspect of unfairness was that the reporter did not ask himself whether the procedure he was adopting was a fair one, the point was not pressed and it would not, in any event, accord with the clear statement of the law in an authority on which he relied (R(Osborn) v Parole Board [2013] 3WLR 1020, Lord Reed at paragraph 65) that it is for the court – not the decision maker – to decide whether or not there has been a fair procedure, the court’s function not being limited to reviewing the reasonableness of the decision maker’s judgment of what fairness required. If the decision maker judges his own procedure to be fair, that does not make it fair. Equally, if he does not address that issue, it does not make the procedure unfair. The question remains whether, viewing matters objectively, there has, in all the circumstances, been a fair procedure.
[21] As presented in the note of argument, the appellants’ submission included a separate case that the failure to hold an oral hearing was a breach of article 6 ECHR. They did so in circumstances where the only potentially relevant averment they make is that they each live within two or three minutes’ walk of the site (article 4). They do not, for instance, present a case of likely effect on their pecuniary rights such as might engage article 1 of Protocol no. 1 ECHR (see, eg: Ortenberg v Austria (1994) 19 EHRR 524). They do not aver any loss of amenity to their properties and the reporter did not make any finding to the effect that they would suffer a loss of amenity such as would engage article 8 ( cf. Walton v Scottish Ministers [2011] CSOH 131, paragraph 110). Mr Campbell asserted, in oral submission, that this was a case of loss of amenity but that was not expanded on and not every loss of amenity will engage article 8 (Lough and ors v First Secretary of State [2004] 1 WLR 2557, Pill LJ at paragraph 43). In these circumstances, an issue arose as to whether the reporter’s decision in fact involved a determination of any civil right of the appellants at all; if it did not, then article 6 was not engaged. The Dean of Faculty, for the respondents, contended that it was not. Ultimately, senior counsel for the appellants did not press the article 6 argument, accepting that it did not add anything to his case at common law. We consider that concession to be well made; even if article 6 had been engaged, which we doubt, we are readily satisfied that it would not have added anything to the common law which more than adequately identifies the applicable principles for the purposes of this case and we will, accordingly, confine our considerations to it.
[22] When considering whether there has been a fair procedure, it is obvious that the court must have regard to the whole circumstances (County Properties v Scottish Ministers 2002 SC 79, paragraph 19). The weight to be given to each will, in turn, depend on the context. The nature of the issues, the nature and extent of disagreement between parties, the interests at stake, whether important facts are disputed, the nature and extent of parties’ participation by other means such as by written submission, the nature and extent of any written dialogue, and what could, if anything, have been achieved by the holding of an oral hearing are all likely to be relevant but they are equally likely to vary from case to case.
[23] The focus of senior counsel for the appellants’ submissions on this issue was their concern about the disturbance of contaminated land, particularly the potential disturbance of asbestos. It is, however, important to note that parties were in agreement about the landfill history of the site and that it had been determined that asbestos was present within it. There was no dispute about that. Insofar as parties were at issue, it was that the appellants, relying on the WYG reports, contended that insufficient information about the land conditions had been obtained whereas Ms Coles, whilst accepting that uncertainties remained, considered that sufficient investigation had been carried out and, further, was satisfied that the way to accommodate those uncertainties was to see to it that appropriate contingency measures were in place. The reporter referred to that as an issue which was, essentially, about methodology and, having considered the terms of Ms Coles’ and WYG’s reports, we can fully understand why, on the basis of that material, the reporter regarded it as such. Mr Campbell did not, however, accept that it was an accurate characterisation. Had he been able to point to any facts about the land conditions which the appellants would have brought to an oral hearing that had not been included in the written material already placed before the reporter, his criticism might have been well made. However, we can find nothing in the material before us to suggest that the appellants had information about the land to take to a hearing – whether by calling evidence or otherwise - which was not already in the documents and Mr Campbell’s contention was clearly to the effect that the appellants’ case at any hearing would have amounted to a repetition of their contention that there had not been enough investigation; more should have been carried out. The reporter’s characterisation was, in these circumstances, we consider, entirely correct.
[24] The appellants submitted that, in the circumstances there should have been a hearing session but we were left quite unclear as to what it was thought that an oral hearing would have achieved that would have been relevant. Nothing advanced on behalf of the appellants pointed to it being likely that relevant information would have been obtained that was not already before the reporter. It would not have been a hearing for the purpose of the formal leading and cross examination of witnesses (see: Schedule 1 paragraph 5(5) of the 2013 Regulations); in particular, it would not have been an opportunity for Ms Coles to be cross examined which is what the appellants’ case seems, originally, to have envisaged although it ultimately seemed to be accepted that that would not in fact have been a legitimate use of a hearing session.
[25] Further, the appellants were able to and did participate by way of written representations; the residents of Blackdog submitted detailed written representations in which their case and the strength of their opposition to the application was made quite plain. And, as the Dean of Faculty observed, they have had the opportunity to scrutinise the decision letter and to bring this appeal.
[26] We would add that it is clear from the reporter’s written reasons that he gave serious consideration to the issue about the adequacy of investigations that was raised, had regard to the contentions on either side and addressed the uncertainties raised by imposing an appropriate condition. It did not need an oral hearing to bring it to his attention and alert him to the need to deal with it.
[27] In all the circumstances, we are satisfied that the procedure adopted by the reporter was a fair one. He was not obliged to hold an oral hearing. This ground of appeal is, accordingly, not well founded.
The reporter’s considerations: visual impact
[28] It was not disputed that visual impact was a material issue which the reporter required to consider and determine. Nor was it disputed that it was a matter of planning judgment (Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, Lord Hoffman at 780) and, therefore, could only be susceptible to challenge on Wednesbury grounds.
[29] The appellants’ contention was that the reporter’s written reasons showed that his assessment of visual impact was irrational. That was because it was illogical of him to state that the proposed buildings would not result in an overbearing or unacceptable visual impact or be considered out of the ordinary in general circumstances (at paragraphs 24, 30 and 33) when he also stated that for the occupants of Hareburn House and Ceol na Mara the impact would be large and adverse and would be a major significant effect (paragraphs 23 and 24).
[30] However, in so contending, the appellants fail to read the reasoning on this matter fairly and as a whole (Save Britain’s Heritage v Number 1 Poultry Ltd [1991] 1 WLR 153 at p.167) and fail to heed the previously articulated guidance that a reporter’s written reasons should not be subjected to detailed textual analysis (Moray Council v The Scottish Ministers 2006 SC 691, at paragraph 28; City of Edinburgh Council v Secretary of State for Scotland 1998 SC(HL) 33 at p. 49C – F)
[31] Contrary to the appellants’ contention, we consider that when the reporter’s careful and detailed reasoning on this issue is read as a whole and in context, the reader can be assured that there is no lack of logic in his ultimate judgment. Far from shrinking from the adverse nature of the likely impact on the two houses identified, he addresses it and clearly explains why, nonetheless, in all the circumstances, he is satisfied that overall, the visual impact of the proposed development will be acceptable in planning terms. Acceptability does not imply absence of all adverse consequences; that is not what the reporter is saying. It cannot be said that his judgment was flawed by illogicality on that basis which is what, ultimately, seemed to be the appellants’ contention.
The reporter’s considerations: environmental assessment
[32] The local planning authority had decided that the proposed development was not an “EIA development” for the purposes of the EIA Regulations (Town and Country Planning (Environmental Assessment) (Scotland) Regulations 2011) but the developer carried out and submitted an environmental statement thus making the application a proposed development to which the regulations applied (see paragraphs 5(1) and (2) of the 2011 Regulations).
[33] Although the appellants originally contended that the terms of the 2011 Regulations were such that the requirements of the EIA directive had not been fully transposed into domestic law, it became apparent that that was not an issue which we required to determine; the Dean of Faculty accepted that if that was the case the EIA directive applied directly and the substance of what the reporter did would still have to be judged by reference to its terms. We agree. The issue we have, accordingly, to consider is whether or not the reporter’s approach to environmental impact assessment accorded with the requirements of the EIA directive.
[34] Recital (7) of the EIA directive states:
“(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. That assessment should be conducted on the basis of the appropriate information supplied by the developer, which may be supplemented by the authorities and by the public likely to be concerned by the project in question.”
[35] Article 1 provides:
“1. This Directive shall apply to the assessment of the environmental effects of those public and private projects which are likely to have significant effects on the environment.”
[36] Article 2 provides:
“1. Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects.”
[37] Article 3 provides:
“The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case and, in accordance with Articles 4 to 12, the direct and indirect effects of a project on the following factors:
(a) human beings, fauna and flora;
(b) soil, water, air, climate and the landscape;
(c) material assets and cultural heritage;
(d) the interaction between the factors referred to in points(a), (b) and ( c).”
The essential contention for the appellants was that under article 2 of the EIA directive, the reporter was obliged to carry out the environmental assessment prescribed in article 3 and he had failed to do so. The respondents do not dispute that the reporter was obliged to do so. Where parties were at odds was as to the content of the obligation.
[38] Mr Campbell repeatedly referred to the reporter being obliged to carry out his own assessment. That had to be a full environmental impact assessment of the type carried out by experts instructed by developers. If that seemed cumbersome, expensive and likely to be productive of delay, that was irrelevant because that, he submitted, was what the EIA directive said. He relied on Case C -50/09 Commission v Ireland as lending support to his submission but we note that the issues there were different; they concerned whether a national provision which only required a planning authority to take environmental information into consideration met the requirement for it to assess that information and whether Ireland, in wholly excluding demolition works from the scope of the relevant statutory provisions, had accurately transposed the EIA directive. We do not read any part of the court’s considerations as indicating that the directive requires the decision maker to redo the ingathering of relevant information that has already been done. Rather, the court appears to have been at pains to stress the need for the decision maker to assess the evidence presented.
[39] We cannot accept that the terms of the EIA directive or the case of Commission v Ireland provide any support for the somewhat startling proposition that the reporter has to start again and, blinkered to the work that has already been done by experts, carry out his own environmental impact investigations. We readily accept that he has a duty to assess the information detailed in any environmental statement or similar material placed before him but that is another matter and is really no different from his overall obligation to assess all the evidence.
[40] We turn then to whether or not the reporter did assess what would be the likely environmental impact of this development. Mr Campbell submitted that it was evident from his written reasons that he had failed to do so. He did not expressly state he had done so. He had only considered five main issues, as explained at paragraph 4 of his reasons, and they did not include all the factors in the article 3 list. In particular, he said nothing about flora, air and climate and as to how all the factors detailed in article 3 interacted with one another.
[41] The Dean of Faculty submitted that there was no need for the reporter to state expressly that he had carried out an environmental impact assessment. There was no need to address every item on the article 3 list. It was clear, from the whole terms of his reasons, that he had in fact addressed all the relevant environmental issues and assessed the relevant evidence.
[42] We are not persuaded that the reporter failed in his duties in relation to environmental impact assessment. The appellants’ formulaic approach is not, we consider, appropriate. The reporter did not require to state that he had assessed environmental impact; what mattered was whether he had done so and it is simply not tenable to suggest that his written reasons do not demonstrate that he took considerable care to assess all the information about the environmental factors that were relevant to this site, particularly the section in which he deals with the effect of disturbing contaminated land. We are not persuaded that he required to assess items on the article 3 list in respect of which no issue arose in relation to this site, such as flora. Article 3 acknowledges, in terms, that what is appropriate will vary according to each individual case; it would, for instance, be pointless to go through the exercise of assessing environmental impact in respect of human beings where the site of the proposed development is an uninhabited island.
Disposal
[43] For the above reasons, the appeal fails and we will, accordingly, pronounce an interlocutor refusing it.