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 interplay between, on the one hand, section 36 of the 1989 Act and section 57(2) of the 1997 Act, and, on the other hand, section 25 of the 1997 Act. Section 25(1) provides:

"Where, in making any determination under the planning acts, regard is to be had to the development plan, the determination is, unless material considerations indicate otherwise -

(a) to be made in accordance with that plan ...."

Mr Campbell submitted that section 25 applied in respect of the direction made under section 57(2) granting deemed planning consent. At paragraph 7.3 of his report the reporter indicated that he was not persuaded that section 25 required to be applied to a decision on whether to make a direction in terms of section 57(2). The Scottish Ministers adopted the report in its entirety. Thus, according to Mr Campbell, the direction under section 57(2) is flawed because of a failure to accord the development plan the enhanced status required by section 25. The submission was that the decision whether to make a direction was a matter for the discretion of the Scottish Ministers, therefore it was a "determination" within the meaning of section 25. A determination involves a process of reasoning leading to a decision. Section 57(2) requires a similar exercise. There is no compulsion to grant a direction. Section 25 is not limited to applications for planning permission - it applies to any decision where regard is to be had to the development plan.

[12] Mr Campbell acknowledged that there is English authority against him, but submitted that the judge in that case had not considered the discretionary nature of the decision required under the equivalent legislation. The Scottish Ministers decided that planning permission should be granted, therefore "as a matter of simple language" section 25 was engaged. As a result the reporter should have started with the development plan and only overridden it if material considerations justified such a course. According to Mr Campbell it would be surprising if any different analysis was appropriate for such a large scale development close to the Cairngorms National Park. The development plan should not be "just part of a basket of considerations" - it should be the prime factor. Instead the reporter proceeded upon the basis that, given the need for the development, there is, in effect, an old fashioned presumption in favour of development unless some adverse consideration overcomes it. He ought to have asked himself whether the need overcame the terms of the development plan.

[13] For the respondents Ms Crawford QC observed that the reporter found that the proposal was in accordance with the development plan, therefore the petitioners' main ground of challenge is superfluous and wholly academic. The outcome of this criticism "is of no practical significance". However, lest she was wrong on this, she addressed the merits of the argument. Section 25(1) of the 1997 Act involves two elements: (i) a statutory provision requiring regard to be had to the development plan, and (ii) a determination under the planning acts. She drew a contrast with the language of section 37(2) of the 1989 Act and section 57(2), in which there is no requirement to have regard to the development plan. However there are numerous provisions in the 1997 Act which do have that specific requirement. It follows that section 25 is not engaged. Furthermore the effect of a section 57(2) direction is to remove the need for the determination of an application for planning permission, which would otherwise require to be dealt with in terms of section 37 of the 1997 Act, and would trigger the terms of section 25.

[14] Relying upon the decision in R (Samuel Smith Old Brewery) v The Secretary of State for Energy & Climate Change & Others [2012] EWHC 46 (Admin), which proceeded upon the basis of identical legislation south of the border, Ms Crawford submitted that a section 57(2) direction does not involve "a determination" which would engage section 25. The procedural requirements for a grant of planning permission do not apply to applications under the 1989 Act, nor to a direction under section 57. Section 57(3) allows the Scottish Ministers to attach planning conditions to the deemed consent, which then fall to be enforced by the local planning authority. Reference was also made to paragraph 7(1) of schedule 8 to the 1989 Act, which was repealed in 1990. It was in identical terms to section 57(2) of the 1997 Act. That suggests that a direction does not engage the "have regard" provisions in the 1997 Act.

[15] For the developers, Ms Wilson QC adopted Ms Crawford's submissions. Under reference to the Flood Risk Management (Scotland) Act 2009, and in particular Class 40 of the provisions regarded permitted development orders, she submitted that it is apparent why the phrase "may direct" was used in section 57(2). Some cases may involve permitted development rights, in which case it would be unnecessary to grant deemed planning permission to allow the proposal to proceed. In short, there will be circumstances where, notwithstanding a consent under section 36 of the 1989 Act, a section 57(2) direction is unnecessary, hence the use of the phrase "may direct". That approach is consistent with how the term "direction" is used in the 1997 Act. It arises when a local planning authority is being instructed as to the discharge of its functions under the Act (see for example, section 132(1)). There is a difference between a "direction" and a "determination". Only the latter involves a discretionary judgment involving the planning merits of a proposal. In the present case, the Scottish Ministers issued a direction to ensure that their decision under section 36 of the 1989 Act is given effect by the local planning authority, and is subject to the planning conditions attached to the deemed consent. A contrast can be drawn with section 127 of the 1997 Act, where clearly the determination requires the consideration of planning matters.

[16] In response to these submissions, Mr Campbell emphasised that the reporter did have regard to the development plan. There was no obligation upon the Scottish Ministers to grant the direction, therefore the terms of section 25 applied. Reference was made to the speech of Lord Clyde in City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33 at 43.

[17] In my view Mr Campbell's submissions fall to be rejected. I consider that Parliament intended that the relevant provisions of the 1989 Act would provide a self contained code. Section 36 of the 1989 Act deals with consents required for the construction, etc of generating stations. Schedule 8 sets out the procedural requirements for such applications. As originally enacted it included a provision in terms identical to those now found in section 57(2) of the 1997 Act. Schedule 9 narrates the relevant considerations, dealing with, amongst other things, the preservation of amenity. In my view it is clear that the purpose of a section 57(2) direction is to allow circumvention of the process of a planning application, including any need for a determination in terms of section 37 of the 1997 Act (which does specify that regard is to be had to the development plan). By contrast, section 25 applies to decisions under the planning acts when it is a requirement that regard is to be had to the development plan. There are several provisions in the 1997 Act where one finds such a requirement. Section 57(2) is not one of them.

[18] Thus, assuming in favour of the petitioners that a direction under section 57(2) is a determination, it is not one where there is a requirement that regard is to be had to the development plan. The fact that the reporter had regard to the development plan, and even if such may be expected in any application for section 36 consent, does not alter the need for an express statutory requirement before section 25 is engaged. This approach is consistent with section 57(3) of the 1997 Act, which indicates that the planning acts apply to the deemed consent, not to the process by which it is obtained. My decision is broadly in line with the decision of Mr Justice Edwards-Stuart in the Samuel Smith Old Brewery case (cited earlier). I agree with his reasoning at paragraphs 70/81.

Second ground of challenge

[19] In the petitioners' note of argument the second ground of challenge is headed "Improper Approach to Determining Issues". Paragraph 8 of the note is in the following terms:

"By failing to accord enhanced status to the development plan the reporter, and the respondents, erred in their approach to the identification of the main issues. The reporter's approach was to find ab ante that there was a 'need'. He then considered whether there was any reason why that supposed need should not be met by the proposed development. He should first have considered whether the proposal accorded with the development plan and then whether there were material considerations which indicated otherwise".

Although couched in terms of a requirement to proceed upon the basis of section 25, I understood Mr Campbell to extend this and other grounds of challenge to a broader based attack. This broader based attack is presaged in paragraph 9 of the note:

"The mistaken premise which underlay the reporter's approach, and that of the Ministers, was that all of the reporter's value judgments were made against his findings of supposed need, found in paragraphs 7.9/14. In reality, such value judgments should not have been affected by considerations of supposed need. For example, there is no finding as to whether or not the landscape impact is such as to offend policy, but merely that it is not sufficient of itself (sic) to prevent the proposed wind farm from proceeding (see paragraphs 7.28 and 7.39)".

Later it is said that the evaluations which were made in respect of the various environmental impacts were all "tainted" by the supposed need for the development, affording need and therefore the proposed development a primacy to which it was not entitled as a matter of law. As an example of the allegedly wrong approach, reference was made to paragraph 7.39 of the report where it is said:

"Although there are some tensions between the proposals and three of the strategic objectives in the National Park Plan relating to the protection of landscapes, landscape character and wildness across the park, where the effects on the park are as limited as they are here, I do not consider that they would warrant resisting the proposals".

[20] For the respondents Ms Crawford submitted that the reporter and the respondents were fully entitled to place weight on the issue of need. Nonetheless, it is apparent that the reporter did place importance upon the environmental acceptability or otherwise of the proposal. Reference was made in this regard to a discussion at paragraph 7.10/11 in the context of national policy and guidance, which makes it plain that wind farms should be supported in locations where, amongst other things, environmental and cumulative impacts can be satisfactorily addressed. Simply because the reporter has accepted the need for the development, this does not in any sense "taint" his decision on the acceptability of the environmental and cumulative impacts of the proposal. It was submitted that any reasonable reading of the report as a whole demonstrates that environmental impacts were in the forefront of the reporter's mind. These were assessed and weighed along with the other relevant issues. Reference was made to paragraph 7.14 of the report:

"Overall I have no doubt that the wind farm is supported in principle by legislation, policy and guidance on energy, and that there is a need for it. However it is still necessary to assess whether it can be accommodated satisfactorily on the application site, without unacceptable detriment. To this end, I address the various environmental and other impacts of the proposals in the following paragraphs".

Ms Crawford continued by submitting that the reporter carefully considered whether the proposals could be accommodated satisfactorily within the site and without any unacceptable environmental impacts regarding both the landscape generally and the National Park in particular. The order of addressing the issues did not determine the outcome. It was noted that, even in the context of section 25 of the 1997 Act, there is no universal prescription for the method to be adopted by the decision maker - cf Lord Clyde at page 45 of City of Edinburgh Council (cited earlier). The correct process was followed and need was balanced against the other two determining issues. On this ground Ms Wilson simply adopted Ms Crawford's submissions.

[21] In a short response on this issue Mr Campbell adhered to the proposition that everything adverse to the proposal had been tolerated simply because of the decision on need which was the "starting and finishing point".

[22] I am satisfied that, when the report is viewed as a whole, it is apparent that there is no merit in Mr Campbell's submission. In fairness it was, at least initially, framed on the basis that the development plan was entitled to the enhanced status afforded by section 25. However, even on that hypothesis, it would be open to a reporter to conclude that, having regard to the nature of the environmental and other impacts of a proposal, other considerations justified approval, including the significant contribution to be made towards national renewable energy targets and site benefits from a good wind resource. Every case will involve an exercise of professional judgment, having regard to and balancing a wide variety of considerations, policies and predicted consequences of the development. For example, at paragraph 7.109 the reporter concluded that the wind farm "would result in landscape and visual effects of substantial adverse significance, but these would be concentrated on the higher ground and hilltops and be localised and limited in extent". His view was that "the landscape in the area has the capacity to absorb the proposals". I see no sound basis for assuming that these judgments have been tainted or influenced by the decision on need. They are stand alone assessments which would apply whatever the reporter's view on need.

[23] Having reached findings in respect of the various determining issues, the reporter then required to look at the matter in the round and frame a recommendation to the Scottish Ministers. No doubt the views on need played a significant part in the overall conclusion, in that absent that need, greater weight may have been given to such environmental impacts as were identified. However that is an entirely normal and rational exercise of the kind of judgment which is required in applications of this nature.

Third ground of challenge

[24] The third ground of challenge relates to policy E6 of the local plan. That policy provides:

"Development proposals which adversely affect National Parks or National Scenic Areas will be refused unless the developer demonstrates to the satisfaction of the planning authority that

(a) the overall objectives of the designated area would not be compromised, and

(b) any adverse impact is significantly outweighed by the national benefits resulting from the development".

[25] At paragraphs 7.90/91 the reporter said:

"The aim of policy E6 is to safeguard the Cairngorms National Park and National Scenic Areas from inappropriate development. The Park is a nationally important designation. The proposals would result in adverse effects on the Park, but none of significance on the National Scenic Areas within it. Where adverse effects occur, the two criteria set out in the policy apply. I have taken the overall objectives of the designated area, as referred to in the first criterion, to relate to the strategic objectives set out in the Cairngorms National Park Plan, and to the four over-arching statutory aims of the Park, which are referred to in the Plan, and are relevant material considerations. The Park Plan sets out a shared aspirational 25 year vision, and the strategic objectives, which build on the four aims, provide a framework for managing the Park. The Plan indicates that large scale wind farms are not appropriate in the Park, but this does not apply to the proposals. However, the Plan also refers to the impacts of renewable energy developments beyond the Park.

I have found that there are tensions between the proposals and three of the strategic objectives relating to the protection of landscapes, landscape character and wildness across the Park. There is also tension between the proposals and the first statutory aim of the Park, but only to the extent that they would not conserve and enhance its natural heritage. The proposals would not impinge on the Park's cultural heritage. Similarly, there is some (albeit small) tension between the proposals and the third statutory aim as they would not promote understanding and enjoyment, including enjoyment in the form of recreation, of the special qualities of the Park. I am not persuaded that the proposals threaten the achievement of either the second statutory aim, which promotes sustainable use of the natural resources of the Park area, or of the fourth statutory aim, which promotes sustainable economic and social development of the Park's communities. I do not consider that the proposals should be rejected just because there are tensions with some of the strategic objectives and statutory aims of the Park. That would be too restrictive an approach, and could lead to an additional zone of protection being inappropriately placed around it. I am satisfied that the landscape in this case could absorb and contain the effects of the proposal, and that the adverse effects on the Park are limited in their extent and are acceptable. I also consider that the objectors have overestimated the extent of the significant adverse effects on the Park. Taking these factors together, and bearing in mind the location of the wind farm outwith the Park, I do not consider that the effects on it would be such that the strategic objectives referred to and any of its statutory aims (either individually or collectively) would be compromised. The proposals would be unlikely to affect the ability of the Park to fulfil its 25 year vision. On this basis, I consider that the proposals can be regarded as compatible with the Park Plan and the statutory aims, and as meeting the requirements of the first criterion in policy E6".

[26] With regard to the second criterion in policy E6 the reporter went on to conclude that the adverse effects would be limited and the proposals would make a significant contribution towards meeting and surpassing renewable energy targets.

"While in strict terms the proposals breach this criterion, it would be unreasonable to reject them on this basis because I consider the adverse effects to be acceptable. As I am satisfied that the proposals do not constitute inappropriate development, I have no difficulty in finding that they would meet the aim of the policy. In the circumstances, I consider that they should be regarded as compatible with the underlying thrust of policy E6" (paragraph 7.92).

[27] Mr Campbell criticised the use of the term "tensions". He said that it is neither a finding of conflict with the relevant aim or objective, nor a finding of satisfaction. It is "meaningless" and of no assistance to the informed reader. The reporter takes other material considerations into account before determining whether or not there is a breach of policy. The ultimate conclusion is reached before any reasoning process is undertaken, and the reporter confuses a mere breach of policy with the consideration that proposals ought to be rejected. The reporter had regard to a possible additional zone of protection being created. However it is not contrary to policy to take into account the effect or impact of development outside the Park on the Park itself. It is suggested that the reporter confused two issues, namely the specific impact of the proposals on specific parts of the Park, and the blanket imposition of an additional buffer zone, thus the reporter has taken into account an irrelevant consideration. The reporter then finds that the impacts are "acceptable". Paragraph 13 of the petitioners' note of argument states as follows:

"That again is an overall judgment - allegedly balancing need and impact - which judgment should not be made when considering whether or not there is a breach of policy in the first place (whether or not that policy has enhanced status). The correct process is to accurately identify each factor or specific impact by turn; to consider whether it, or they, may or may not suggest a breach of any policy; then to make a finding if there is indeed a breach of policy, rather than loosely identifying any 'tension' - whatever that may mean - then to consider whether that is outweighed by any counterveiling material consideration, and then finally to carry out the balancing or 'planning' judgment"

[28] In response to this, and indeed to other parts of the petitioners' challenge, Ms Crawford objected to what she described as "a hypertextual and hypercritical analysis applied to selective passages in the report". She submitted that a consideration of policy E6 involves a large amount of planning judgment. The overall aim is to safeguard the National Park. Production 6/12 sets out the strategic objectives of the National Park, which include "conserving and enhancing the Park". This objective is then subdivided into "various sub and sub-sub objectives".

[29] Similar comments could be made in relation to the other strategic objectives. Production 6/11 records the four statutory aims for National Parks in Scotland. They include conserving and enhancing the natural and cultural heritage of the area, and promotion of the sustainable use of the natural resources of the area. It is also necessary to promote understanding and enjoyment of the special qualities of the area, and to promote sustainable economic and social development of the area's communities. Ms Crawford submitted that the tensions identified by the reporter relate to a subset of one of the subsets of the first strategic objective of the National Park. At paragraph 7.46 the reporter concluded that the substantial adverse significance in landscape terms would be concentrated on the higher ground and hilltops. They would be "localised and limited in extent". It was in this area where there was a tension with any of the strategic objectives of the National Park. At paragraph 7.39 the reporter indicated his satisfaction that the landscape is of a scale which could absorb the wind farm and reasonably contain its effects. The sense of wildness would be reduced but not lost. The main direction of view is into the Park and towards the Cairngorm massif and the higher summits. This view would be unaffected. The view out of the Park would be affected. The reporter said "In relation to Scottish natural heritage landscape policy framework, I am satisfied that the adverse effects would not damage the unity or soundness of the whole designation". Ms Crawford submitted that there was no muddled or confused thinking. The reporter was entitled to conclude that overall there was no breach of policy E6.

[30] I consider that there is some force in Ms Crawford's criticism of an overly textual and lawyerly analysis of the report. The overall aim of policy E6 is to safeguard the National Park and National Scenic Areas. For the reasons explained at this passage of the report, and elsewhere, the reporter is of the view that the adverse environmental consequences of the proposal are not as significant as claimed by some parties at the inquiry. I have no difficulty with the use of the term "tension" in relation to the assessment of the proposal against certain of the strategic objectives and statutory aims. Whether the "overall objectives" of a designated area would or would not be compromised by the proposal is a classic matter of planning judgment, and, with respect, it strikes me as overly simplistic to proceed upon the basis that any conflict between a proposal and any aim or objective necessarily means that the overall objectives of the designated area are compromised. The policy as drafted requires both criteria to be met, and the second criterion implicitly recognises that an acceptable proposal might involve an adverse impact upon the National Park or a National Scenic Area. In my view the policy envisages a broader and more sophisticated analysis than simply identifying an adverse impact and thereby concluding that the policy is not met. As indicated in Ms Crawford's submissions, and as explained in paragraph 7.91 of the report, there are a number of objectives and aims which are unaffected by the proposals. The reporter is also entitled to place weight on the fact that the proposals are outside the National Park, although he recognises that this does not exclude the relevance of the policy.

[31] The key finding on criterion (a) is "the proposals would be unlikely to affect the ability of the Park to fulfil its 25 year vision". In paragraph 7.92 the reporter explains why the second criterion does not justify refusal of the application. In short the adverse effects would be limited and the proposals would make a significant contribution towards meeting and surpassing renewable energy targets, which are derived from a renewable energy policy framework which is expected to deliver national benefits. I consider that there is no merit in this ground of challenge.

Fourth ground of challenge

[32] The fourth ground of challenge relates to the reporter's consideration of the local planning authority's supplementary planning guidance. Policy ER1 of the local plan indicates that commercial wind energy development should be located in a preferred search area identified in the local planning authority's 2005 supplementary planning guidance on wind energy proposals. At paragraph 7.98, the reporter noted that the guidance predated the advice contained in Planning Advice Note 45, and commented that the guidance is overdue for review. While the wind farm would fall outwith the preferred search area, the reporter noted that the area had been narrowly defined, contrary to the subsequent national advice. There was no absolute ban on wind farm developments outwith the preferred search area. They should be "treated on their merits". The reporter stated "As wind farms are allowed in unlikely areas where the conditions are met, I believe that the proposals are consistent with the terms of the guidance, albeit that the weight I attach to it is reduced because of the need for review and the failure to reflect national advice."

[33] The note of argument for the petitioners contends that the reporter erred in giving lesser weight to Moray Council's guidance because there was no conflict with the Planning Advice Note. In oral submission Mr Campbell suggested that the reporter's findings in this regard were irrational and a misdirection which should lead to the quashing of the decision letter. Reference was made to the petition at paragraphs 20/22.

[34] Ms Crawford observed that the reporter had found no conflict with the supplementary guidance, albeit he attached little weight to it. She noted that the guidance allowed proposals to proceed outwith the preferred area of search "where adverse affects are outweighed by the wider environmental, social and economic benefits of the development." All of this had to be considered in the context of the reporter's earlier assessment of the adverse affects of the proposal. Insofar as the reporter indicated that the guidance was inconsistent with national advice, this comment was justified for the reasons given in paragraph 34 of the respondent's note of argument. The guidance did not comply with the aims of the special framework set out in PAN 45, annexe 2, paragraph 16. It did not follow the staged approach. It defined areas of search narrowly, as opposed to the recommended "broad areas of search." It imposed a disapproved sequential test. In their closing submissions (production 7/1, page 4) Moray Council accepted that the guidance requires to be reviewed. The respondent's note of argument also observes that "Scottish planning policy is based on the principle that appropriate renewable energy developments should be accommodated throughout Scotland where any environmental impacts can be satisfactorily addressed."

[35] I agree with Ms Crawford's submissions. I am not persuaded that the reporter has acted irrationally or has otherwise misdirected himself. He was entitled to conclude that there was a discrepancy between the local supplementary guidance and PAN 45, and to attach reduced weight to the former. In any event he found that the proposal was compatible with the guidance.

Fifth ground of challenge

[36] The fifth and final ground of challenge was to the effect that, with regard to the Habitats Directive and European protected species, the reporter's whole approach was flawed. The petitioner's note of argument states: "The reporter simply failed to consider the issue of alternative locations as required" (paragraph 18). The reporter deals with these issues in his report at paragraph 7.74 and following paragraphs. It was submitted that he required to decide whether a licence under regulation 44 of the Conservation (Natural Habitats, etc) Regulations 1994 was likely to be granted. In particular he should have "sought to ascertain whether there were imperative reasons of overriding public interest for the proposals in the location proposed." It is averred that there were none. The reporter should have looked for alternative locations outwith the application site. Accordingly the reporter "acted irrationally and unlawfully."

[37] Regulation 3(4) required the respondents to have regard to the requirements of the Habitats Directive when exercising their functions under the 1989 Act. In R (Morge) v Hampshire County Council [2001] 1 WLR 268, the Supreme Court considered the proper approach to article 12 (1)(b) of the Directive. At paragraph 29, Lord Brown of Eaton-under-Heywood made it clear that, in the present context, consent will normally be granted unless the proposal will (a) be likely to involve deliberate disturbance of a European protected species, particularly during breeding, rearing, hibernation and migration, and, if so, (b) the disturbance is unlikely to be licensed pursuant to the derogation powers. In paragraph 30, his Lordship said "Where, as here, Natural England expressed themselves satisfied that a proposed development will be compliant with article 12, the planning authority are...entitled to presume that is so." Guidance was given as to the proper approach to article 12(1)(b), emphasising that the aim is to protect species, not individual members of species, nor habitats.

[38] In the present case, Scottish Natural Heritage, who are now the enforcement agency in respect of the Directive and the 1994 Regulations, have no objection with regard to the impact of the wind farm on European protected species. "If the mitigation measures designed to minimise the impact on species and habitats are fully implemented then there will be no adverse impact on any plant or animal species of EPS. Accordingly SNH has no objection with respect to EPS (European Protected Species)" (production 7/3). There was a large amount of information regarding EPS in chapter 11 of the environmental statement, all of which was taken into account. The reporter recorded the relevant evidence at paragraph 2.47. "On the basis of current information, there would be no need to apply for a licence to disturb a protected species." The report 7/9 of process is part of the relevant information which was before the reporter. In it Andy Mackenzie, a chartered biologist, who is a full member of the Society of Biology and of the Institute of Ecology and Environmental Management, explains in detail why there is no current need for EPS licensing for the proposed wind farm. The reporter reflected all of this at paragraphs 7.74/5 of the report. In these circumstances, in my view there was no requirement upon him or the respondents to proceed to the second stage of the test outlined by Lord Brown. Of course, if in due course it transpires that a licence is required, it will only be granted by SNH if the threefold test set out in regulation 44 is met. However, for present purposes neither the respondents nor the reporter were required to assess the proposal under regulation 44. In these circumstances any criticism of the terms of paragraph 7.76/7, which discuss whether a licence would be granted, are academic and not determinative of a practical issue. In any event, unless and until the circumstances giving rise to a need for a licence are known, it is difficult to predict the outcome. The European jurisprudence teaches that the nature and extent of the impact on the protected species is relevant to whether a licence is granted. At present all that is known is that there is no reason to suppose that a licence will be required. The respondents have fulfilled their duty under regulation 3(4).

[39] All of the grounds of challenge having been rejected, I will dismiss the petition.