SCTSPRINT3

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 34

P1241/14

OPINION OF LADY WISE

In the petition

GLENMORIE WIND FARM LIMITED,

a Limited Liability Partnership (No S0303561) having its registered offices at The Old School Offices, 2 Dalmahoy, Kirknewton, Midlothian, EH27 8EB

Petitioner;

 

for Judicial Review of the Scottish Ministers, Energy and Climate Change Directorate Electricity Division dated 21 August 2014to refuse consent under section 36 of the Electricity Act 1989, and deemed planning permission under section 57(2) of the Town and County Planning (Scotland) Act, 1997, for construction and operation of Glenmorie Wind Farm, near Bonar Bridge, Ardgay, Highland.

 

Petitioner;   Mure QC,  M McKay, Eversheds LLP

First Respondents:  The Dean of Faculty, WJ Wolffe QC;  M Ross, Scottish Government Legal Directorate

Second Respondent:  Findlay J A C;  Harper McLeod LLP, Edinburgh

1 March 2016

Introduction
[1]        This is a petition for judicial review challenging a decision of the first respondents dated 21 August 2014, adopting the recommendation of their reporter, dated 8 May 2014, to refuse the petitioner’s application for planning permission to build 34 wind turbines in Easter Ross, north of Inverness.  The reporter’s recommendation was based on her conclusion that the proposed wind farm would have significant adverse environmental impact both alone and cumulatively and that it would conflict with aspects of national planning policy. 

[2]        The petitioner’s application for consent under section 36 of the Electricity Act 1989 for the construction and operation of Glenmorie Wind Farm was made on 10 November 2011.  On the same date the petitioner submitted an appropriate Environmental Statement.  In addition to representations by the local planning authority, Scottish National Heritage (“SNH”) and the Scottish Environmental Protection Agency (“SEPA”), 248 public representations were received in respect of the said application – 200 objections and 38 in support.  In particular, Highland Council objected to the application and in accordance with paragraph 2 of schedule 8 to the Electricity Act 1989 a public local inquiry was held.  Following that inquiry the reporter submitted her report to the Scottish Government on 8 May 2014.  One of the contentious issues at the inquiry was the proximity of the proposed development to areas of “wild land”.  A policy in relation to “Wild Land” had been developing over a number of years and continued to develop at the time that the report was being submitted to Ministers.  On 23 June 2014 a new national planning policy – SPP 2014 (SPP2) – was published which included a new national policy on the issue of “wild land”.  Accordingly, the petitioner’s application was still pending when that policy was adopted, which was after the receipt of the reporter’s report but before the decision letter of 21 August 2014.  For that reason, it is useful to summarise the development of policy on wild land before considering the arguments presented in support of the petition and in response.  Most of the detail of the factual background was set out, helpfully, by senior counsel for the petitioner in his submissions. 

 

Chronological summary of the development of “Wild Land” policy
[3]        All of the documents that narrate the relevant background are contained in the tabulated bundles of joint productions lodged in process.  The chronology starts with a Scottish National Heritage review in 1999 (number 119) entitled “Ross and Cromarty Landscape Character Assessment”  (Joint productions tab 2).  That review describes the undulating moorland and rounded hills land character assessment of the relevant area as at 1999.  Wind Energy was relatively new with only one wind farm operational in the area at the time of the review.  Also in 1999 the then Scottish Office published National Planning Policy Guidelines number 14 on natural heritage (“NPPG 14”) – tab 1.  The glossary of terms therein defined “wild land” as:

“Uninhabited and often inaccessible countryside where the influence of human activity on the character and quality of the environment has been minimal.” 

 

The guidelines emphasise the importance of protecting and enhancing a variety of Scottish landscapes including those:  “valued nationally and internationally for their quality, extensiveness and wild land character.” (para 11).  The guidelines confirm the important role of Scottish Natural Heritage in recommending areas of outstanding value to the natural heritage of Scotland and for which special protection measures might be appropriate.

[4]        In July 2002 Scottish Natural Heritage (“SNH”) issued a policy statement entitled “Wildness in Scotland’s Countryside” (Tab 3).  In that statement the issue of how to identify wildness and wild land in the landscapes is discussed.  A distinction is drawn between wildness – the quality enjoyed – and wild land or places where wildness is best expressed.  It is noted that the appreciation of wildness is a matter of an individual’s experience and their perceptions of and preferences for landscapes of that kind.  The range of values people find in wild landscapes is listed as including engagement with the physical world, solitude and sanctuary, closeness to nature and wildness as a quality in its own right.  At paragraph 5 the statement suggests that “wilderness” may be a term best avoided in Scotland because it implies a more pristine setting than can be experienced in the Scottish countryside where even wild land tends to show some effects from past human use.  The statement goes on to suggest that:

“The term wild land is also best reserved for those now limited core areas of mountain and moorland and remote coast, which mostly lie beyond contemporary human artefacts such as roads or other development.” 

 

The importance of Scotland’s wild land is emphasised and the comment made that renewable energy projects have the potential to impinge on the character of wild land (para 25).  SNH identifies its policy aim in the statement (at para 34) as being that:

“There are parts of Scotland where the wild character of the landscape, its related recreational value and potential for nature are such that these areas should be safeguarded against inappropriate development or land‑use change.”

 

 

Importantly, while a designation of wild and natural areas was thought to be inappropriate, as a way forward, SNH considered it desirable that there be some consistency from a national stance on the issue.  Accordingly an approach to the identification of wild land is set out in Annex 1 to the statement with a view to SNH leading a process of debate about the matter.  The physical attributes said to contribute to the experience of wildness (and thereby to the identification of wild land) and perceptual responses evoked by those physical attributes are all listed in Appendix 1 of the paper.  The document concludes by stating that the identification of wild land will depend on all the physical attributes being present.  The map attached to the statement (Map 3) presented a preliminary search map for areas of wild land (“SAWL’s”)with a view to further debate with various interested parties.

[5]        The next document of significance published was a further SNH paper dated February 2007 entitled “Assessing the impacts on wild land:  interim guidance note” (Tab 5).  This note suggests an assessment method for the impact on wild land of any development.  It proposes a two stage assessment, first by establishing a baseline of the condition and extent of the wild land resource and secondly, assessing the magnitude and significance of the impact upon it.  A statement has now been inserted at the beginning of the current form of the note confirming that the guidance in it is being reviewed in light of SPP 2014 with a comment that the wild land areas in that Policy supersede the search areas for wild land (“SAWL”).  In December 2009 SNH published a document entitled “Sighting and Designing Wind Farms in the Landscape”.  This document refers to the need to carry out a landscape impact assessment (LIA) to assess the landscape character of the relevant area and to identify the key characteristics relevant to any wind farm development.  There is recognition that while an area may be identified as being suitable for multiple wind farms there will be a limit on the number or extent of wind farms which can be reasonably accommodated.  There followed the Scottish Government’s Scottish Planning Policy 2010 (“SPP 2010”), the relevant policy until replaced by SPP2014.SPP 2010 stated at paragraph 128 that:

“Areas of wild land character in some of Scotland’s remoter upland mountain and coastal areas are very sensitive to any form of development or intrusive human activity and planning authorities should safeguard the character of these areas in the development plan.”

 

This general statement was not made with reference to any SNH mapping exercise.  This was the policy in place at the time the petitioner submitted its application.

 

The progress of the Glenmorie wind farm application
[6]        A request was made by the petitioner to the first respondent for a scoping opinion on the proposed Glenmorie wind farm which the first respondent was obliged to produce in terms of the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2000.  The opinion noted that while the proposed development was not directly located within a search area for wild land (“SAWL”) the visibility of its tall structures could impact on adjacent wild land and a thorough environmental statement was recommended (Tab 8).  SNH provided a preliminary formal response to the proposed application supportive of the undertaking of a cumulative landscape and visual assessment, given the proximity of the proposed development to the wind farm operation at Beinn Tharsuinn and the adjacent wind farm at Novar –Tab 9. 

[7]        The petitioner, through its planning agent submitted the formal application together with an accompanying Environmental Statement in support.  For the purpose of the Environmental Statement (tab 13) , in so far as it identified the extent and condition of wild land affected by the application, the relevant study area was divided into five smaller areas described partly by reference to their proximity to the SNH search areas for wild land (SAWL) as follows:

1          Area A:           to the west outwith the site area (around 150m to the nearest turbine) and within the SAWL.

2          Area B:           The western part of the development site a relatively level plateau area… outwith the SAWL but displaying some wild land attributes.

3          Area C:           The central part of the development site, covering the north eastern edge of the plateau classified as Area B and the northeast facing upper slopes of the Abhainn Glac an t Seilich glen, outwith the SAWL; 

4          Area D:          The incised glen of the Abhainn Glac an t Seilich, with steeply sloped sides and partially forested no turbines in this area but site infrastructure will be apparent, outwith the SAWL;

5          Area E            The eastern part of the development site, covering the upper eastern slopes of the Abhainn Glac an t Seilich glen and the ridge of Meall Bhenneit, outwith the SAWL. 

The environmental statement submitted by the petitioner concluded (tab 13 at para 1.47) that the effect of the development on Area A would be significant and (at para 1.49) that the significant effect on that wild land was likely to extend to around 7 kilometres to the west from the edge of the development site.  The statement notes (at paragraph 1.50) that while the area  within this 7 kilometre radius to the west of the development falls within the “SAWL” the author’s site visit and study of aerial photography indicated that not all of the area was likely to be considered “true wild land”.

[8]        On 10 February 2012 the petitioner, through agents, amended the application by removing nine of the turbines included in the original application.  No other changes were made.  SNH had objected to the petitioners’ application as originally lodged.  However, by letter of 2 August 2012 that organisation formally withdrew its objection (tab 21).  The concern had been the significant adverse impact on the nearby Dornoch Firth national scenic area and that had been addressed by the removal of the nine turbines in question.  SNH continued to point out the significant cumulative landscape impacts of the proposed development particularly to the nearby SAWL.

[9]        The second respondent (Highland Council), by letter of 18 February 2013 objected to the petitioner’s application.  One of the reasons for the council’s decision to object was that it regarded the application as in conflict with the Scottish Government’s National Planning Framework for Scotland (paragraphs 99 and 128) with regard to search areas for wild land. 

[10]      During 2013 a policy in relation to wild land continued to develop.  SNH published a new map in April 2013 described as “Core areas of Wild Land in Scotland 2013” (“CAWL’s)” (Tab 26).  In May of that year the chief planner for Scotland wrote to all convenors/heads of planning recording that while a new planning framework and draft  Scottish Planning Policy were being launched the current national planning framework 2 and SPP 2010 remained the Scottish Government’s policy until further notice (Tab 27).  In the meantime, the reporter appointed to deal with the petitioner’s application set about contacting those with an interest.  On 4 September 2013 SNH responded to the request for additional comments.  In relation to the applicability of the new “CAWL” map as distinct from the previous SAWLs identified, SNH confirmed that until the government reached any conclusion and confirmed its approach SNH continued to apply the established set of SAWLs in their advice.  SNH’s advice on the cumulative impact of the proposed Glenmorie Wind Farm remained unchanged.

[11]      The petitioner instructed a report which was prepared by environmental consultants to inform and assist the petitioner’s case at the inquiry sessions that the reporter had fixed for October 2013.  The report (Tab 34) addressed the issue of effects of the proposed wind farm on search areas for wild land (“SAWL’s”).  The consultants instructed by the petitioner sought to identify inconsistencies in the mapping exercise undertaken by SNH but expressed the view that the main consideration in relation to the significant landscape effects arising from the proposal was whether the Glenmorie Wind Farm would “tip the balance” in respect of the cumulative capacity of the area.  The view expressed by the consultants in question was that the Glenmorie project would introduce only a limited additional cumulative influence to the landscape when seen from the majority of routes around and through the relevant area.  The submissions made at the inquiry both on behalf of the petitioner and the Highland Council are lodged at Tabs 37 and 36 respectively.

[12]      In November 2013 SNH published a consultation paper in relation to its core areas of wild land (“CAWL’s”) 2013 map.  The paper acknowledged that the map represented a desk based study and that field survey work would have to be undertaken on a case by case basis before any decisions could be taken at (Tabs 38 and 39).  The petitioner submitted a response to that consultation (Tab 39).  Accordingly, the process of identifying areas of wild land relevant to decision making on applications such as that already submitted by petitioner, was an ongoing process at the time of the formal inquiry and the reporter’s completion of her report.

 

Report to the Scottish Ministers on the petitioner’s application
[13]      The report and recommendation of the reporter to the first respondent is dated 8 May 2014 and is produced at tab 40.  It contains seven separate chapters in the main report together with five appendices.

[14]      In chapter 2 the case for each party on the contentious issue of landscape and visual impact is summarised.  One of the central issues is concisely stated as being whether the petitioner’s application “tips the balance” in relation to cumulative effects.  Chapter 7 contains the reasoned conclusions and recommendations of the reporter and was subsequently adopted by the first respondent in the decision letter.  This chapter acknowledges that the proposed development would make a significant contribution towards meeting the relevant renewable energy targets (para 7.7).  In describing the landscape both on the proposed site and adjacent to it the reporter records that: 

“There is an over-riding absence of human activity and artefacts in the area which adds a sense of vastness to the landscape”.

 

The reporter records agreement with the contention that the resulting impact of the development on the landscape character of the area would be significant (para 7.12).  The concern related to the vertical form of the wind turbines which would draw attention in a landscape with a lack of obvious manmade focal points and would contrast directly with the overriding lack of existing human activity in the area around the proposed site.  The author of the report states the following:

“The wind turbines, associated access tracks and other infrastructure would all unacceptably conflict with the characteristic sense of remoteness of this landscape type and I agree that there would be a resultant significant effect on landscape character in certain areas.” (para 7.14).

 

[15]      The reporter records disagreement with the petitioner’s stance that the negative effects of the development would be limited by their influence to such a degree as to make them acceptable and she rejected the suggestion that the context of this large scale landscape setting had the inherent capacity to absorb the proposed changes.  The reporter found that the overall impact on the currently open, vast, remote landscape characteristics of the area would be both “significant and adverse” (para 7.19).  While previous approval of other wind farms in surrounding area is acknowledged, it is specifically recorded as not altering the reporter’s conclusion (para 7.20). 

[16]      After dealing with the impact of the proposed development on specific landscape designations in the area the reporter addresses the impact on wild land.  The reporter records the five areas of potential impact identified in the Environmental Statement.  It is recorded that Area A lying to the west of the proposed site is within the search areas for wild land  (“SAWL”) and has been assessed as true wild land while the other four (B to E) are outwith the SAWL and assessed as not true wild land.  The SNH guidance is acknowledged which states that a detractor does not have to be within an area of wild land to affect it.  The difference between the core areas of wild land and the search area for wild land is acknowledged and accompanied by the following statement:

“I must also acknowledge that the core areas are the subject of a current consultation exercise after which their boundaries could change.  I concur with the view of Scottish Natural Heritage that until the Government concludes this consultation and confirms its approach, the established set of search areas for wild land should continue to be applied.  I have, as a consequence, focussed my consideration of the proposal in relation to wild land, to its impact on the search area for wild land.”  (para 7.35).

 

The reporter concludes that the proposed development would have a significant and adverse impact on wild land to the west of the proposed site currently identified as a search area for wild land.  The report goes on:

“This would extend beyond 7 kilometres and could have a significant and adverse impact for up to a maximum of 15 kilometres range and into the heart of the wild land area.  This may not to date, in the view of Scottish Natural Heritage, be of national significance.  However the proposed development would detract from the wildness qualities experienced in a significant proportion of this individual search area for wild land (and an even larger proportion of a core area of wild land, if confirmed).  The existence of other consented wind farms in or within 10 kilometres of search areas for wild land does not alter my view that the proposed development would cause significant attrition in the extent and quality of this area of wild land, in both the local and Highland context.”  (para 7.36).

 

[17]      In a section on cumulative impacts the reporter records that there are 15 wind farms consented, under construction or operational within 35 kilometres of the proposed development and a further four at application stage.  She records her agreement with the council and other objectors:

“… that the addition of the proposed development would make a notable contribution to cumulative landscape effects by extending both combined and sequential effects westwards and over a wide area.  The significant and adverse cumulative impacts would affect the characteristics of the Rounded Hills unit 1 landscape, as a whole.”  (para 7.49).

 

[18]      The report also records that the proposed wind farm would add new elements to the north of a panorama that already contains views of existing or consented wind farms to the northeast, south and southwest, rendering the cumulative impact of adding a wind  farm of the scale proposed on views to the north significant and adverse.  The specific effects of the proposed development on various local viewpoints is discussed.  The reporter summarises the adverse landscape and visual impact of the proposed development and records in particular that:

“The proposed wind farm would both alone and cumulatively detract from the wildness qualities experienced in a significant proportion of the adjacent search area for wild land and as a consequence would not safeguard the wild land resource of the area”. (Para 7.67).

 

[19]      Reference is also made in the report to the existing and emerging National Planning Policy but in light of the lack of finalisation of the emerging policy documents it is recorded that the reporter has relied on the “current suite of policies” in her considerations (para 7.85).

[20]      The reporter’s overall conclusions are contained at paras 7.125 - 7.135 inclusive.  As will be seen, these conclusions were later repeated in full in the first respondent’s decision letter.  The conclusions clarify the determining issues as balancing the energy policy and the need for the proposed wind farm against its environmental and other impacts.  They end as follows:

“… I conclude that the benefits of the proposed development in making a significant contribution to national renewable energy targets, a modest contribution to the local economy during operation with a more substantial contribution during construction and possible improvements to recreational access, would not outweigh the significantly detrimental landscape and visual impacts on the local environment and community.  The overall scale of the proposed wind farm and its associated infrastructure would accentuate the adverse impacts on the environment and community to a degree which would be unacceptable.  Although the applicant has fulfilled the duties required by schedule 9 of the Electricity Act by having due regard to those relevant matters and mitigation in the Environmental Statement, Addendum and Supplementary Environmental Information , the environmental impacts of the proposed development would not be acceptable.  In a balance of benefits against disbenefits, the proposed development would be contrary to both national planning policy and the local development plan.”  (para 134).

 

Accordingly, the report ends with a recommendation that consent should be refused. 

 

Developments between delivery of the report and issuing of the decision letter
[21]      On 11 June 2014 Scottish Natural Heritage issued a new map in relation to the identification of wild land entitled “Wild Land Areas 2014”.  This should be read with the SNH paper giving advice to the Scottish Government dated 6 June 2014 (tab 43) which makes clear that it is intended that the Wild Land Areas Map of 2014 should be seen as replacing the core areas of wild land (CAWL) 2013 map.  It records also that the SNH 2007 guidance would be updated in light of this policy change.  Some further clarity on the understanding of what comprises wild land is given in chapter 2 of the paper.  It is clear that the guidance is suggesting that the new map is to be used as a strategic planning tool and is the product of a desk based analytical study.  It is noted that individual field assessment would still be required for individual applications (para 5.33).

[22]      Almost immediately after the publication of that document, the Scottish Government published the new National Planning Policy – SPP 2014 (SPP 2 – tab 45).  A number of new policies are developed within that paper and a specific section on renewable energy with a view to making Scotland a “low carbon place” includes a section about onshore wind.  The SNH 2014 map is specifically included as part of the Scottish National Policy.  It divides relevant areas into groups.  Group 2 includes areas of wild land as places where wind farms may be appropriate in some circumstances.  The new policies should be read in conjunction with the third National Planning Framework (tab 46) which, amongst other matters,  reiterates the view that wild land is a nationally important asset.

[23]      During the summer of 2014 an issue arose about whether further submissions should be invited from those involved in proposing and objecting to Glenmorie Wind Farm given that the reporter’s report and recommendation had been delivered but Ministers had not reached a decision.  On 3 July 2014 correspondence was sent by email to the relevant parties seeking submissions on SPP 2 and the third National Planning Framework (NPF 3) by 18 July.  However, that invitation was retracted in a subsequent email from the Scottish Government on 15 July 2014 (tab 58).  That email correspondence records that the Government had now realised that it had not been necessary to ask for further representations in such a situation and that the request had been made in error.  The email also indicated that the Scottish Government would not seek further representations on other relevant applications.  It is recorded that Ministers had “sufficient information” to determine the petitioner’s application.  The position of the second respondent Highland Council, was that it wanted to make the further representations initially invited, and sought to do so.  This was expressed in correspondence –tabs 47, 56 and 60.  One objector, the Mountaineering Council of Scotland had in fact responded on 7 July 2014 prior to the retraction of the invitation (tab 50).  The petitioner’s response to this situation was, by email from their agents on 21 July 2014, to accept that it was appropriate for no further submissions to be taken into account so long as all other relevant parties were in the same position.  It was noted further on behalf of the petitioner that evidence had been led at the inquiry on the basis that all parties knew that the relevant maps in relation to wild land were likely to change (tab‑62).  It was not disputed before me that the Scottish Ministers had entertained representations in other cases pending at a similar time including in relation to proposed developments at Sallachie, Allt Duine Wind Farm and Glen Cassely. 

 

The decision letter
[24]      The first respondents’ decision letter is dated 25 August 2014 and contained at tab 64 of the joint productions.  The consultation process and public local inquiry procedure is first set out.  Thereafter the reporter’s reasoned conclusions contained within chapter 7 of the report are narrated in full.  Then there is a section dealing with Scottish Planning Policy 2014 and the inclusion of wild land within Group 2 as being areas of significant protection within its table for special frameworks, is noted.

[25]      The Scottish Ministers consideration of matters is then set out.  It is recorded that Ministers have considered fully and carefully the application, the Environmental Statement, the Addendum and Supplementary Environmental Information, consultation responses, public representations, the findings, conclusions and recommendation of the reporter and all other material considerations.  The following significant paragraphs then appear:

“Ministers have considered the Reporter’s reasoning and conclusions in the context of the new SPP, and are of the opinion that the Reporter’s conclusions are still valid for the purposes of this decision.  The 2014 SPP is explicit in a way the previous SPP was not in setting out a presumption in favour of development that contributes to sustainable development, but the previous SPP did similarly set out a strong policy position in favour this type of development.  Ministers consider that the conclusion the Reporter reached that the environmental impacts of the proposed development would not be acceptable remains valid, and because of that are of the view that this Development does not represent sustainable development, in particular given the significance and extent of the landscape and visual impacts which the Reporter has set out.

 

The area of this Development now sits largely on Wild Land Areas as shown on the 2014 SNH maps of these areas, where previously it was adjacent to the Search Areas for Wild Land (SAWL).  The Reporter highlighted the significant detrimental impact the proposed development would have on the wilderness qualities of wild land in the area around the development.  Ministers have considered the Reporter’s conclusions regarding the impact on the wilderness qualities of the area, which remain relevant, in the context of the new SPP and the fact that the prospective site now sits largely in a Wild Land Area in SNH’s 2014 map.  Ministers have concluded that, if anything, the wild land impacts are of greater concern in the context of the new map and SPP than they were in the context of the previous SPP and map of SAWLs, and therefore that these considerations only lend weight to a decision to refuse the Development.

 

… Ministers have therefore concluded that the Reporter’s conclusion remains relevant that, in a balance of benefits against disbenefits, the proposed development would still be contrary to both national planning policy and the local development plan.

 

Scottish Ministers agree with the Reporter’s reasoning and conclusions and adopt them for the purposes of their own decision.”

 

[26]      The decision letter concludes with formal notification of the refusal of the application for consent, consequent  requirements for publication and reference to the possible right to seek judicial review.  The changes in the recently published Scottish Planning Policy and Scotland’s Third National Planning Framework are specifically noted but it is concluded they do not alter the position.

 

Submissions on behalf of the petitioner
[27]      Senior counsel for the petitioner developed the three possible grounds for review set out in detail in the note of argument for the petitioner (number 15 of process).  The first basis on which the first respondent’s decision is challenged is that of procedural unfairness, breach of natural justice and denial of legitimate expectations.  It was argued in the note and in oral submissions that it was procedurally unfair for the first respondent to proceed to determine the petitioner’s application without giving consideration to the petitioner’s response to the publication of SPP 2014 and the relevant SNH 2014 map of wild land areas.  The SNH wild land mapping exercise was for the first time afforded express policy recognition in SPP 2014.  It was unfair for the first respondent to take considerations in that policy into account as giving rise to “greater concern” without comment or submission from the petitioner.  There was nothing to suggest that the first respondent had looked at the materials put before the reporter or analysed whether the new areas on the map were actually wild land, something that SNH make clear has to be done in the development context.  A desktop exercise was insufficient.  While it was acknowledged that the petitioner’s agents had accepted that there was no requirement for the first respondents to receive further submissions on the new policy, it was still a breach of natural justice to draw adverse implications from new national policy and wild land mapping without having heard from the petitioner because these were new and material factors that had arisen since the submission of the reporter’s report.  There had been an initial suggestion in the answers to the petition that the new policy had been a material consideration although it was now said that SPP 2014 and NPF 3 “were not determinative of the first respondents ‘decision.”  The only field assessment carried out had been that of the petitioner and it had formed part of the petitioner’s evidence to the inquiry that the CAWL was inaccurate so far as the development site was concerned and should not be relied upon.  It was of particular concern to the petitioner that no field work had been carried out relevant to the new map.  The first respondents were not in a position  to conclude that it was less likely that consent would be granted under SPP 2014 without such evidence based work.  Neither could the court reach such a conclusion.  The purpose of the new map was to allow local authorities to prepare development plans, not to use it to give or refuse consent.  In the particular circumstances of the timing of the petitioner’s application, the inquiry and the development of the new policy, fairness demanded that the petitioner be heard on the issue.  Further, notwithstanding the petitioner’s position, the first respondents considered it appropriate to obtain statements from parties participating in the other section 36 wind farm inquiries where the issue of wild land was a determining issue and that despite indicating in the email of 15 July 2014 (tab 58) that they would not seek representations in other cases.  For example, the proposed development at Allt Duine was refused consent but in the decision it is recorded that further representations following the issue of SPP 2014 were sought, obtained and considered before the decision was made at (tab 73).  It was not disputed that the first respondents required to apply the policy extant at the time of Ministers’ consideration.  However the reference in the decision letter to SPP 2014 and NPF 3 and the comment that these “do not alter their decision” suggests that the new policy was used rather as a crosscheck against a decision already taken rather than as a decision taken having regard to the reporter’s report and the newly issued policy.  Whether the argument was characterised as procedural unfairness or breach of natural justice, unfairness to the material prejudice of the petitioner had arisen.

[28]      The second challenge was based on an argument that the first respondent had left material considerations out of account and had given inadequate reasons for the decision.  It was argued that the first respondents had failed to have regard to the specifics of the matter of wild land in terms of the new policy SPP 2014.  Having relied on the reporter’s description of the implications for wild land that related to what was effectively the superseded search areas for wild land of 2002, there had been a failure to consider the petitioner’s valid concerns as to the veracity of the SNH mapping exercise.  Accordingly the petitioner’s consultants were unable to advise as to (i) the reasons for their criticisms of the CAWL having been rejected and (ii) the prospects of obtaining consent for some alternative development and this led to substantial prejudice.  The well-known dicta of Lord Brown in South Buckinghamshire District Council v Porter (No 2) [2004] 1WLR 1953 at para 36 was relied upon in relation to the need for intelligible and adequate reasons that would inform a disappointed party of any basis for an appeal or judicial review or other procedure to challenge the decision.  In support of the contention that the petitioner’s consultants were unable to advise given the terms of the first respondents’ decision letter reference was made to an affidavit of Anna Webster, Environmental Consultant lodged at tab 9.  In paragraphs 45 – 52 of that affidavit the concerns that advisor has about the lack of reasoning and consequent inability to advise on what to do next are set out.  The key issue of prejudice, according to senior counsel for the petitioner, was the inability of advisors to tell the petitioner how they could overcome the wild land issue.  The giving of good and adequate reasons was all the more important where the new policy was being developed at the time of decision making as in the present case.  Further, given that SNH did not object to the development on the basis of any impact on wild land, the lack of objection of the second respondent’s planning committee, at least initially, and the evidence about the baseline effects of the proposed development being provided by the petitioner all militated in favour of a conclusion that the reasons given were wholly inadequate.

[29]      The final head of challenge was described in oral submissions as “methodological error”.  It was contended that the reporter fell into error by adopting an inconsistent approach when considering on the one hand the impact on landscape character of the proposed development and on the other the cumulative impact.  While it was acknowledged that the reporter was generally aware of the existence of other constructed and consented wind farms in the area, it was submitted that she made a methodological error by omitting to consider the influence of those wind farms upon baseline landscape character.  Some support for this argument was provided again by Anna Webster’s affidavit particularly in paragraphs 59 and 60.  The nearest wind farm to the Glenmorie area was said to be Cloire na Cloiche.  Reference was made to paragraph 6.12 and figure D9 in appendix D to the Landscape and Visual Report (tab 34) prepared for the petitioner and to the cumulative plan (tab 75).  It was hard to reconcile the reporter’s references to “An overriding lack of existing human activity” and “A sense of barrenness and remoteness” with the presence of the existing manmade influences, which had been drawn to the attention of the reporter.  It was pointed out also that the decision letter talks of “wilderness” qualities, long thought to be an inapposite expression in addressing wild land character.  It was also suggested that it was wrong to conclude that the petitioner’s proposed wind farm development would be visible from the viewpoint at Ben Wyvis (viewpoint, 15 tab 30).  In contrast, three other wind farms are clearly visible from that area.  It was difficult to understand why those had been left out of account in considering the importance of the Ben Wyvis special landscape area. 

[30]      In anticipation of the respondents’ submissions, senior counsel for the petitioner argued that one could not jump to the conclusion that the 2014 map made it less likely that the petitioner’s application would be granted without evidence of that.  It remained the position that no adequate explanation was given in the decision letter for the conclusion that the new policy would give rise to even greater concerns in relation to this application than the old.  A motion to grant decree of declarator and reduction was made.

 

Submissions for the first respondent
[31]      The Dean of Faculty moved for the dismissal of the petition.  He made four principal general observations.  First he commented that if the petitioner’s argument was that there was a need for site specific analysis rather than simple reliance on any map in considering wild land, there had been one in this case.  When the first respondents made their decision they had before them findings of the reporter analysing the impact of this particular proposed development on this particular site.  It is clear from the terms of the decision letter that they considered all the documents and reports listed in the letter carefully.  Their conclusion was to agree and adopt the reporter’s reasoning and conclusions.  The detailed site specific analysis was in the report itself and the first respondents accepted it.  They also had before them the petitioner’s Environmental Impact Assessment.  Secondly the decision under challenge is an administrative decision by the Scottish Ministers on a planning matter.  It is settled law that questions of planning judgement were for them as decision makers.  Reference was made Tesco Stores Limited v Secretary of State for the Environment [1995] 1 W.L.R. 759 at 780, where Lord Hoffman gives the locus classicus of that principle.  In considering the petitioner’s application, a balance required to be struck between the interest in promoting renewable energy on the one hand and the interest in protecting the landscape on the other.  That balance was exclusively a matter for the first respondents.  The recent decision of the Inner House in the case of Loch Hill Wind Farm (Scotland) Limited v Scottish Ministers [2015] CSIH 37 was referred to. In that case an appeal was taken against a decision of a reporter on behalf of the Scottish Ministers.  It also involved a challenge to a decision letter.  Lord Malcolm took the opportunity to reiterate some of the basic principles applicable to cases of this kind under reference to the opinion of Lord Gill in Moray Council v The Scottish Ministers [2006] SC 691.  In particular, decision letters are to be read in a straightforward manner recognising that they are addressed to parties well aware of the issues involved and the arguments advanced.  Further, issues such as the acceptability or otherwise of landscape or visual impacts of a wind farm constitute “pure questions of planning judgement” which are necessarily subjective to some extent but informed by the reporter’s professional expertise.  It is trite that the court cannot interfere with such decisions.  The court is concerned only with the legality of the process (paras 16 – 17).  The Dean of Faculty submitted that, like the Loch Hill Wind Farm case, the petitioner’s application raised issues of balancing the benefits of the proposed development in terms of renewable energy generation against arguably unacceptable cumulative visual impacts.

[32]      Thirdly, the question that was for first respondents as decision‑maker was to pose the question “What is the right decision for this site having regard to the competing public interests?”  To answer that required a policy judgement and in reaching the conclusion that they did the first respondents were entitled to accept the reporter’s conclusions as sufficient basis for it. 

[33]      Fourthly, the changes in policy between the original search areas for wild land (SAWL’s), the core areas of wild land (CAWL’s) and ultimately the core map published in 2014 did not  affect the conclusion on visual impact that the reporter made and was entitled to make.  The reporter had before her the petitioner’s Environmental Statement and took it into account as one of many factors involved in her consideration.  That Statement itself (tab 13) describes the effect of the proposed development on Area A, lying 150 metres to the nearest turbine and categorised as “true wild land”, as “significant” – para 1.47.  While the position of SNH was that the incremental attrition of the wild land resource by this proposed development was not of national significance, it was for the first respondents, not SNH, to take the decision.  In any event, it would be incorrect to suggest that SNH were unconcerned about the additional cumulative impact on wild land of further development in the area.

[34]      Turning to the report itself (tab 40), the Dean of Faculty pointed out the detail with which the reporter set out the parties submissions in chapter 2 and the comprehensive conclusions and recommendations in chapter 7.  It could not be said that the reporter did not have a basis for the conclusion that she reached or that the first respondents were not entitled to accept her assessment and findings.  Any suggestion that the reasons given by the first respondents were inadequate  had to be tested in context.  The parties were well aware of the issues in the application and the decision letter had to read in light of that.  The impact on wild land was always the issue with this application.  The petitioner knew the case it had to meet and what that central issue was.  The reporter was well aware of the other wind farms in the area in referring to the cumulative impact on the landscape of the proposed development at para 7.128 of tab 40.  The issue of the cumulative impact on the landscape was not restricted to the issue of what was and what was not wild land.  The impact on the landscape character is explained fully in the report.  It is plain from the terms of para 7.10 of her report that the reporter took into account all of the submitted material, the oral evidence and crucially, she had undertaken accompanied and unaccompanied site visits.  It could never be suggested that she was unaware of the position with other consented wind farm developments.  It was plain from reading paras 7.2, 7.14, 7.19 and 7.20 of the report that the reporter was relying on her own experience, having visited the site, when she concludes that the overall impact on the openness, vastness and remoteness of the area through the proposed development would be significant and adverse.  Through her visits she could see that the other wind farms had a relatively limited impact while the petitioner’s proposals would, both individually and cumulatively,  have an unacceptable impact in the area.  So far as the wild land issue was concerned the starting point was paragraph 7.36 of the report.  The reporter’s conclusion was that the development could impact up to 15 kilometres in to the heart of the wild land area.  This was a significant conclusion that the reporter was entitled to reach and the first respondents were entitled to accept.  The cumulative impacts of the proposed development are addressed separately and in detail at paragraphs 7.48, 7.49, 7.57 and 7.59.  In that last paragraph the significant effects that the development would have on the three viewpoints listed are acknowledged.

[35]      The all important balancing exercise that the reporter had to carry out can easily be identified in paragraph 7.134  of the report.  The first respondents adopted that reasoning in full.  They accepted both the factual findings of the reporter on the effect on the landscape character and the individual and cumulative impact on wild land in the area.  Those two aspects formed the base information when the first respondents came to make their own decision in light of the new policy.

[36]      It was indisputable that the SPP 2014 sets out in more concrete terms the protection for wild land by recording three specified groups or areas of wild land as shown on the 2014 SNH map.  Under the new policy it has to be demonstrated that the effects of any proposed development on the quality of the area concerned can be overcome.  While the policy gives greater clarity on the classification or characterisation of land as wild land or not, wind farms are not precluded by the policy in principle, but have to be justified.  Accordingly, the current policy tightens up the protection to wild land areas and the new map illustrates clearly that the petitioner’s proposed wind farm would be at least partly situated directly on wild land.  This is because some land not previously caught by the search areas for wild land (SAWL) was now included in the 2014 map.  It was inconceivable that any submission could have been made that would change the decision in favour of the applicant standing the reporter’s conclusion based on SAWL rather than the 2014 map.  It was broadly accepted that the question of whether an area would be classified as wild land is now determined by that more recent map.  There was accordingly no basis for the petitioner’s procedural unfairness point.  In any event, as a general rule there was no requirement on the first respondents to consult further when the new policy was issued after the submission of the reporter’s report.  It was clear from the correspondence (tab 62) that the petitioner’s representatives accepted that they had no right to insist on making further submissions.  The decision letter contained an intelligible articulation of the first respondents’ position.  Criticisms of terminology, such as the letter referring to “Wilderness qualities of wild land” rather than the reporter’s correct term of the use “wildness” would not affect the substance of the decision.  The key point was that having considered the reporter’s conclusions those remained relevant in terms of the new policy which intensifies the protection for wild land.  Far from there being anything in the new policy that would justify setting the reporter’s conclusions aside, it was clear that the wild land impacts of the proposed development would be of greater concern in the context of the new map and so that it is stated in terms in the decision letter.  It was not a question of simply relying on a map, it is the association of the map with the new planning policy that was significant. 

[37]      Under reference to Hopkins Development Limited v Secretary of State for Communities and Local Government [2014] EWCA Civ 470 at paras 47–48 and 85-86, the Dean of Faculty submitted that in the absence of a statutory procedure, the question of whether to invite further submissions was a matter of discretion for Ministers, subject to the need to operate fair procedure.  The court can intervene and quash the decision only if there is procedure of unfairness of a type that materially prejudices one of the parties involved.  The first respondents were entitled to conclude that they didn’t need or want further submissions following the issue of the new policy.  They had the evaluative comments of the reporter and everything they needed in order to apply their own new policy SPP 2014.  So far as the alleged inconsistency point was concerned, the first respondents’ position was that submissions were sought in other cases because they were different and in the exercise of their discretion they accordingly decided to entertain such further submissions.  The point about lack of consistency on this would only work if the petitioner had been able to show there were no relevant distinguishing features between the petitioner’s application and the others.  In any event, if a decision‑maker erroneously sought further submissions for one application but not another it could not affect the outcome of the present case.  The other applications concerned were not the subject of these judicial review proceedings and accordingly the court should be unconcerned about them.  The only question to be answered is whether what was done in relation to further submissions was unfair to the petitioner in this case.  That ought to be answered in the negative. 

[38]      So far as the reasons challenge was concerned it was not for an environmental advisor to decide whether or not the reasons given by the first respondents were intelligible, that was clearly a matter for the court.  While the decision letter is relatively short, it specifically adopts the report which the petitioner would have received effectively simultaneously with the decision letter.  In the absence of any lack of intelligibility in what the first respondents express in the decision letter the reasons challenge could not stand.

[39]      So far as the point about the Ben Wyvis special landscape area was concerned, the petitioner’s argument was misconceived.  The reporter had dealt properly with this issue at paragraph 726-728 of the report.  Ben Wyvis lies south of the proposed development.  The wind farms claimed by senior counsel to the petitioner to be visible from the Ben Wyvis viewpoint were, unlike the proposed development, not to the north of Ben Wyvis.  For all the reasons stated in the note of argument for the first respondents which was adopted the petition should be dismissed.

 

Submissions for the second respondents The Highland Council
[40]      In a succinct and helpful submission, Mr Findlay submitted that the petition should be dismissed.  He adopted his own note of argument and the oral and written submissions for the first respondents.  He reiterated the important statements of the correct approach made by Lord Gill in Moray Council v Scottish Ministers [2006] SC 691 at paras 28-32.  In particular the dicta therein talks of the dangers of an over detailed textual analysis of decisions of this type and confirmed that documents such as decision letters should be read as a whole. 

[41]      Mr Findlay made four main points in answer to the petitioner’s arguments on the wild land issue.  First, it was incontestable that the new policy, SPP 2014, has intensified or added to the protection for wild land.  An examination of the chronological development of policy on this issue puts beyond argument that the most recent policy adds to protection for wild land rather than detracts from it.  If an application conflicted with policy on wild land in SPP 1 it would undoubtedly follow that there was such a conflict if considering an application under SPP 2.  Protection for wild land now has national significance whereas previously it had only local or regional significance.  Secondly, it was important to note that the petitioner had been unable to criticise any of the reporter’s conclusions on the wild land issues.  Those conclusions had been adopted in full by the first respondents.  Thirdly, emphasis had been placed on the lack of objection by Scottish National Heritage (SNH) but such a lack of objection meant nothing more than that in the view of that organisation the impacts of the proposed development were not regarded by them at the time as being of national significance.  SNH did have concerns about the proposed development and those concerns were before the reporter.  Fourthly, there wasn’t as much of a dispute about the categorisation of wild land areas at the inquiry as might have been thought at the petitioner’s submissions.  Using the classification of areas in the environmental statement, it was always the case that Area A was wild land.  There was some dispute in relation to Areas B and C.  In any event from 2014 it has been accepted that the most recent map is a definitive on classification.  At the time of the reporter’s consideration and recommendations, Highland Council and the petitioner had agreed that classification should be in terms of “SAWL’s” not “CAWL’s”.  The issues at the inquiry had related to Areas B and C as even under the emerging policy represented by CAWL parts of those areas would have been Wild Land.  This lent weight to the “compelling logic” of the first respondents’ position.  If the petitioner could not obtain consent under the previous policy, then given that it was indisputable that the protection for wild land is enhanced under the new policy, it was impossible to see how the petitioner’s position could ever be strengthened.  The situation would be different had SPP 2014 reduced the significance of wild land to local interest only.

[42]      Mr Findlay added to the Dean of Faculty’s submissions on the procedural unfairness aspect by dealing with the facts of the consistency point.  He submitted that there were material differences between the petitioner’s application and others where further submissions had been sought.  For example in Allt Duine there had been an objection and an inquiry that was held long before SPP2 was issued.  SNH had then changed their position and objected to the application and the reporter had recommended granting consent to the application – see tab 73.  So far as Sallochie was concerned, Highland Council had not objected to that application and so there had been no requirement for a public inquiry and the reporter’s unit had not been involved.  While SNH had ultimately objected that was only after the policy change – see tab 67a).  Finally the third relevant application, Glen Cassley, had involved no objection at all and accordingly no reporter was involved – tab 67c.  These differences easily justified a difference in approach on how discretion might be exercised in terms of seeking further submissions.

[43]      So far as the landscape matter was concerned, Mr Findlay made reference to the report from Optimised Environments prepared for the petitioner (tab 34).  It was noted that the report’s description of the landscape appears to have been directly taken from 1999 SNH assessment.  The reporter’s use of the landscape character assessment (paragraph 7.12 – 7.19) was consistent with the statement of common understanding between the Highland Council and the petitioner (tab 35) that the relevant landscape character baseline was the 1999 land character assessment of SNH, which found the sensitivity of both of the relevant character areas to be high in overall terms.  The reporter applied the baseline description and then considered whether she agreed as regards the particular site of the proposed wind farm.  In other words the land character assessment was the area generally but was then specified by the reporter for this particular proposed development.  So at the stage of landscape character assessment the issue of other existing wind farms was entirely irrelevant.   The reporter subsequently refers to the existing wind farms in the appropriate context (para 7.20).  The issue in relation to Cloire Na Cloiche was whether it would be seen with the proposed Glenmorie development or stand alone.  There was a dispute about that at the inquiry and the reporter concluded that the proposed development would extend the visual effects westwards, in other words it would compound the already existing visual impacts of Cloire Na Cloiche.

[44]      Having adopted the  Dean of Faculty’s submissions on the substance of the decision letter (tab 64), Mr Findlay made further points about the section on SPP 2014.  It was clear that three aspects of that policy are new.  First there is the presumption in favour of sustainable development.  Secondly there is the restriction on development in remote and fragile areas.  Thirdly and distinctly there is the enhanced protection for wild land.  It is clear from the letter that the decision‑maker goes through each of these new issues and considers them in turn.  Having done that the conclusion is that the reporter’s findings and recommendations remain relevant.  If the first respondents were prepared to refuse the application on the old map it would have been a complete waste of time and money to invite submissions on the new map and policy.

 

Discussion
[45]      I turn first to the procedural unfairness/breach of national justice/denial of a legitimate expectation argument.  The question is whether there was any requirement, as a matter of fairness, on the first respondents to seek further submissions from all the various parties when the new policy and wild land mapping was issued in 2014 after the reporter had submitted her report.  It was not contended by the petitioner that there was any legal obligation as such to do so.  The initial overture to parties to provide written submissions following the publication of SPP 2 and NPF 3 was expressed as an invitation (email from the Energy Consents and Deployment Unit (“ECDU”) of the Scottish Government dated 3 July 2014 (tab 48).  It was made clear in a subsequent email of 8 July that the invitation related only to the Glenmorie application (email of 8 July 2014‑tab 53).  While one or two parties attempted to make representations before the invitation to do so was withdrawn, it is clear from the first respondent’s email of 15 July 2014 that any such additional representations would not be taken into account and that email also clarifies the procedural stage reached, namely that the reporter had concluded and submitted her report to the ECDU, which was in the process of considering a recommendation to be made to the Ministers.  The correspondence goes on:

“The ECDU recommendation will take account of the reporter’s report and changes in the policy position since the inquiry closed.  This is the procedure which has been adopted consistently in all section 36 cases.”

 

[46]      It is then explained that as the Scottish Government and Scottish Ministers were fully aware of the terms of their own policy documents and implications for section 36 cases, there was no evidential requirement to refer the Glenmorie case back for further inquiry or to allow additional representations to be made.  It was on receipt of that correspondence that the QC representing the petitioner at the inquiry (also a partner in the firm instructed by Glenmorie) replied by email of 21 July 2014 – tab 62.  The pertinent parts of that email are in the following terms:

“My clients Glenmorie Wind Farm Limited were and remain content to accept your ruling on further representations.  As you have said SPP 2, and so far as relevant, NPF 3, are the creations of the Scottish Ministers (and in the case of NPF 3 the Scottish Parliament).  The Ministers will know how to apply their own policies. 

 

However, my clients would not wish to be disadvantaged if the representations of other parties and letter from THC were to be taken into account by the Ministers.  It would be fair for the applicant to have a right of reply.  Representations made by other parties do in some cases venture beyond the procedural point being addressed into representations on the wild land issue.”

 

[47]      Three matters relevant to my decision arise from that email.  First, it is abundantly clear that having taken legal advice, the petitioner was content that the first respondents were entitled to decide not to consider any further representations before reaching a decision.  Secondly, while the point is made that there would require to be fairness as between the parties and that the petitioner would seek a right to reply if the Highland Council’s representations were to be taken into account, there was no suggestion made to me that the first respondents had done anything other than ignore any such purported further submissions having given a clear statement that they would not consider them. .  Thirdly, it is apparent that the concern being expressed  on behalf of the petitioner was that those attempted further representations strayed into the substantive wild land issue rather than dealing solely with what is termed “the procedural point”, namely the issue of whether the new policy required an invitation to make further submissions.  Taking these points together, it seems to me that the petitioner was fully aware of the approach that, on reflection, the first respondents intended to take and expressed contentment with it.  In the absence of any suggestion that any other party’s proposed further submissions were in fact taken into account, the result was that which would have subsisted had the initial invitation of 3 July  never been tendered.

[48]      Accordingly, it is difficult to conclude there was any unfairness, far less unfairness resulting in material prejudice to the petitioner.  As with the other parties, there was a short period when the petitioner thought that there was an opportunity to make further representations.  That opportunity came to nothing when the first respondents decided that the invitation should be withdrawn.  All parties were initially advised that further representations would be considered and can therefore be regarded as equally inconvenienced by the change in position.  Some had formulated representations.  Such inconvenience does not, however, equate with material prejudice of the type referred to by Jackson LJ in Hopkins Development Limited v Secretary of State for Communities in Local Government [2004] EDWCA Civ 470 at para 62.  The petitioner does not and cannot suggest that the submissions it was denied the opportunity of making  would have been to the effect that the new policy and mapping were favourable to their application.  It was not open to the petitioner to challenge the policy itself or the first respondent’s ability to take it into consideration in making the decision of 21 August 2014. 

[49]      So far as what was termed the “consistency point” is concerned, I have noted the submissions of Mr Findlay that the other applications in respect of which further submissions were ultimately sought and considered differed in their facts and circumstances.  While I have no reason to doubt that submission, it is not for me to comment on the facts and circumstances of other applications and procedures undertaken within them and perform some comparative exercise.  It is sufficient for the purposes of this case to consider whether it was unfair for the first respondents to conclude that they had all the necessary information before them to allow them to reach a properly informed decision or whether they required to seek further representations on the Glenmorie application.  I have reached the view that the first argument made on behalf of the petitioner is not well founded.  It is accepted that a decision made by those in the first respondent’s position following an inquiry is fundamentally an administrative decision – Buschell v Secretary of State for the Environment [1981] AC 75 per Lord Diplock at 101-102.  Lord Diplock there gives examples of actions on the part of such a decision maker that would be unfair, such as hearing from one side after the inquiry is closed without letting another side know, or accepting from third parties fresh evidcne which supports one side’s case without giving the other side an opportunity to answer it. However, there is no obligation to seek views on information or advice coming from within the decision making body itself. The new policy (SPP 2014) fell into that category in this case. The first respondents dealt with all parties involved in an even handed manner after SPP 2014 was published. Against the factual background narrated above, there was no procedural unfairness that could be said to have materially prejudiced the petitioner’s position.

[50]      The second challenge, that the first respondents left material considerations out of account and /or had given inadequate reasons for their decision, must be considered in light of the settled law on this issue.  In South Bucks District Council and another v Porter (No 2) [2004) UKHL 33 at paragraph 36 Lord Brown of Eton-under-Heywood summarised the essential requirements as follows:

“The reasons for a decision must be intelligible and they must be adequate.  They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues, disclosing how any issue of law or fact was resolved.  Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision.”

 

[51]      The nature of the decision in this case is a decision letter in a planning matter.  In Moray Council v The Scottish Ministers [2006] SC 691 Lord Gill emphasised that such decision letters are to be read in a straightforward manner recognising that they are addressed to parties well aware of the issues involved and arguments advanced.  That dicta was recently approved by the Inner House in Loch Hill Wind Farm (Scotland) Limited v Scottish Ministers [2015} SCIH 37 at para 16. 

[52]      It was contended that the first respondent’s decision letter left the petitioner’s consultants unable to advise properly on why some of their criticisms in relation to the wild land issue had been rejected and what else they could do to obtain consent for some alternative.  However, the first and most obvious point on this issue in my view is that the decision letter has to be read together with the reporter’s report, a copy of which was made available, contemporaneously with the decision letter, to all parties.  The reporter sets out in detail all of the submissions made by the various parties on the issues in controversy in chapter 2 of her report.  These are all addressed and detailed conclusions and recommendations are elaborated in chapter 7.  The issues between the parties were well focussed.  The first was the significant impact of the proposed development on the landscape character of the area involved.  Then there was the issue of the proximity of the site to wild land both individually and taking into account cumulative impacts having regard to other wind farms in the area.  I have referred earlier in this opinion to the various passages in the report that deal with these issues of contention.  Each issue is addressed fully and the reporter’s conclusions explained.  For example, the reporter did not accept the opinion offered on behalf of the petitioner in relation to the extent of the impact the proposed development would have on wild land to the west of it – see para 7.36 of tab 40.  This specific significant adverse and cumulative impacts of the development are also enunciated – see para 7.49.  The criticisms made on behalf of the petitioner at the inquiry in relation to CAWL’s are acknowledged, but the reporter makes clear that in light of the ongoing consultation exercise the established set of SAWL’s was to be the primary focus in considering the wild land aspects of the proposal – para 7.35.

[53]      I agree with the submission made by the Dean of Faculty that there is no lack of intelligibility at all in what the first respondents state in the decision letter.  The reporter’s extensive report, based on the material submitted to her, the submissions made at the inquiry and her conclusions from unaccompanied and accompanied site visits, was accepted and adopted in full.  The first respondents might have required to give more detailed reasons had they disagreed with the conclusions of the reporter, given the detailed and comprehensive analysis provided by her.  The reference in the decision letter to “wilderness” rather than “wildness”, the latter term being more apposite and appearing in the report, is a semantic point of no real substance given the wholesale adoption by the first respondents of the reporter’s report.  To the informed reader, as the petitioner was, a fair reading of the report and the decision letter together would signal very clearly that the contention that the significant visual impacts of the proposed development were acceptable had been rejected.  The conclusions of the reporter in relation to the controversial wild land issue  are equally clearly stated – see for example paragraph 7.128.

[54]      So far as leaving material considerations out of account is concerned the petitioner claims that there was a failure to have regard to the specifics of wild land in terms of the new policy.  The planning consequences of the newly adopted National Planning Policy on Wild Land and the implications that arose as a consequence of the proposed site being identified as an area of wild land within SNH 2014 map were said to be material considerations.  The first respondents ought to have ensured that they understood the petitioner’s position on them.  However, it having been conceded that the respondents were in a position to understand and apply their own policy, it is difficult to understand this criticism.  The acknowledged consequence of part of the proposed development being within an area of wild land as identified by the new 2014 map is that its impact on wild land could only be greater than previously.  This is the “compelling logic” referred to by Mr Findlay.  The petitioner cannot gainsay that logic or suggest that the new policy does not enhance the protection for wild land. While it was argued for the petitioner that evidence would be required before any conclusion could be reached that the policy in the 2014 map made it less likely that the application would be granted, it seems to me that one cannot ignore all of the material that was before the first respondents when they came to make a decision in light of the new policy.  Standing the conclusions of the reporter who used “SAWL’s” as a guide together with the site specific analysis undertaken, I cannot conclude that the petitioner’s position on the new policy and map was a material consideration that ought to have been taken into account.

[55]      The last contention for the petitioner was that the reporter’s approach to the impact of the proposed development on landscape character was methodologically erroneous.  Accordingly, as a result of error she advised Ministers that the said impact was unacceptable.  In that respect the inquiry report was misleading.  The first part of this discussion focussed on whether the landscape character assessment published by SNH in 1999 was out of date given that since its publication a number of wind farm schemes in the relevant area come into existence or were at least consented to.  However, as Mr Findlay pointed out, the reporter’s use of the 1999 landscape character assessment (paragraph 7.12 – 7.19) was entirely consistent with the statement of common understanding of the Highland Council and the petitioner (tab 35) that the relevant landscape character baseline was the 1999 assessment.  The landscape character assessment was still relevant in a descriptive sense and as a benchmark from which the reporter could then consider the proposed development both individually and in terms of cumulative impact.  The reporter makes sufficient reference in the report  to the existing or consented wind farms in the area.  One example was the dispute in relation to Cloire na Cloiche.  The reporter expressed her conclusion on the matter as follows:

“Whether or not the proposed wind farm would be seen in conjunction with Cloire na Cloiche, it would still extend the length and magnitude of wind farm views considerably and have an additional cumulative impact on this sensitive area of wild land.  Cloire na Cloiche by itself would give the impression of a small compact wind farm some distance away, but the cumulative impact of the proposed wind farm would be to introduce a large scale, elongated wind farm some 8 kilometres nearer.  I, therefore, consider that the proposed development would have a significant and adverse cumulative effect on wild land particularly to the east of Beinn a’ Chaistail.”(para 7.58).

 

[56]      The reporter had already recorded in the context of concluding that the impact of the proposed development on the landscape character of the area would be significantly detrimental that the previous approval of other wind farms in the surrounding area did not alter her conclusion (para 7.20).

[57]      Throughout the report, appropriate reference is made to the existence of other wind farms.  Accordingly, it cannot be properly suggested that her  knowledge and understanding of the area was somehow out of date.  In my view it is not erroneous or inconsistent to describe the key characteristics of the landscape character of the site area as including “openness, vastness and remoteness” (para 7.19) while acknowledging in the context of the particular proposal, the cumulative impact it would have when seen in conjunction with other wind farm developments nearby.  Accordingly, I disagree that the report evidences some methodological error of a material kind on the part of the reporter that misled the first respondents when they adopted her report and made the decision that they did.

[58]      It is clear from the papers lodged in this case and the submissions made to me that the petitioner, having submitted a detailed and subsequently amended  application and supporting environmental statement for the construction of this wind farm, is aggrieved at the decision to refuse permission.  That grievance is perhaps exacerbated by knowledge of other consented wind farm developments in the area.  However, the decision sought to be reviewed is indisputably an administrative decision by the first respondents on a planning matter, judgements about which were within their exclusive province (Tesco Stores v Secretary of State for the Environment [1995] 1WLR 759 at 780 per Lord Hoffman).  In Moray Council v the Scottish Ministers [2006] SC 691, Lord Gill clarified that issues such as the acceptability or otherwise of landscape or visual impacts of a wind farm were included in examples of “pure questions of planning judgment” which are necessarily subjective to some extent, but informed by a reporter’s professional expertise.  In approving that dicta recently, the Inner House issued a reminder , in  Loch Hill Wind Farm (Scotland) Limited v Scottish Ministers [2015] CSIH 37 that “It is trite law that the court cannot interfere with such decisions.  The court is concerned only with the legality of the process.”

[59]      There are some parallels between the issues in this case and the type of challenge made in the Loch Hill Wind Farm case.  Notwithstanding the eloquence of the submissions made by senior counsel for the petitioner, I can detect no procedural unfairness, illegality, lack of reasoning or methodological error that might justify reducing the decision intimated on 21 August 2014.  The reporter’s analysis was comprehensive, well explained and reached after obvious careful consideration of both the submissions made to her and the accompanied and unaccompanied site visits she undertook.  The first respondents were in turn entitled to rely on the substantial body of work the reporter had undertaken in reaching her conclusions and recommendations in making their decision.  Nothing in the new policy that emerged in the late summer of 2014 could have resulted in a decision more favourable to the petitioner being taken. 

 

Decision and Disposal
[60]      For all of the reasons given above, each of the three challenges made by the petitioner to the decision of 21 August 2014 fails.  I will sustain the pleas in law for the respondents and dismiss the petition, reserving meantime all questions of expenses.