RECLAIMING MOTION IN THE PETITION OF THE JOHN MUIR TRUST AGAINST THE SCOTTISH MINISTERS AND SSE GENERATION LIMITED AND SSE RENEWABLES DEVELOPMENTS (UK) LIMITED
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2016] CSIH 61
P843/14
Lord President
Lord Menzies
Lady Smith
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD PRESIDENT
in the reclaiming motion in the petition of
THE JOHN MUIR TRUST
Petitioners and Respondents;
against
THE SCOTTISH MINISTERS
Respondents and Reclaimers;
and
SSE GENERATION LIMITED AND SSE RENEWABLES
DEVELOPMENTS (UK) LIMITED
Interested Parties:
Act: Agnew of Lochnaw QC; Drummond Miller LLP
Alt: Mure QC, Byrne; Scottish Government Legal Directorate
Interested Parties: Wilson QC, Gill; CMSCameron McKenna LLP
22 July 2016
Introduction
[1] This is a reclaiming motion (appeal) against an interlocutor of the Lord Ordinary, dated 4 December 2015, reducing a planning consent granted by the respondents for the construction of a wind farm at Stronelairg, south of Fort Augustus. The key issue is the interpretation of Regulation 14A of The Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2000 and, in particular, whether the respondents published the required public notices advising of the impact of the development on the environment. There is also a question about whether the respondents had regard to a particular objection to the development “in principle” before taking their decision. The petitioners cross-appeal the refusal by a different Lord Ordinary, in an interlocutor dated 31 October 2014, to make a Protective Expenses Order in respect of the proceedings in the Outer House.
The Regulations
[2] In terms of the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters signed at Aarhus on 25 June 1998, Member States of the European Union are obliged to make certain environmental information available to the public on request. The EU implemented the Aarhus Convention by Directive 2003/4/EC, which was in turn implemented in Scotland by the Environmental Information (Scotland) Regulations 2004. In general terms, the EI(S) Regulations provide for public access to environmental information held by a public body.
[3] EU Directive 2011/92/EU requires an applicant to prepare an Environmental Impact Assessment before applying for consent for certain projects involving electricity works. The EIA Directive is aimed at ensuring effective public participation in decisions which may have an impact upon the environment. Article 6.2 provides that environmental information must be made available to the public concerned. In particular it states that:
“...
2. The public shall be informed, whether by public notices or by other appropriate means such as electronic media where available, of the following matters early in the environmental decision-making procedures ... and, at the latest, as soon as information can reasonably be provided:
- the request for development consent;
- the fact that the project is subject to an environmental impact assessment procedure…
…
(e) an indication of the availability of the information gathered pursuant to Article 5;
(f) an indication of the times and places at which, and the means by which, the relevant information will be made available;
(g) details of the arrangements for public participation made pursuant to paragraph 5 of this Article.
3. Member States shall ensure that, within reasonable time-frames, the following is made available to the public concerned:
…
(c) in accordance with the provisions of Directive 2003/4/EC ... information other than that referred to in paragraph 2 of this Article which is relevant for the decision ... and which only becomes available after the time the public concerned was informed in accordance with paragraph 2 of this Article.
4. The public concerned shall be given early and effective opportunities to participate in the environmental decision-making procedures ... and shall, for that purpose, be entitled to express comments and opinions when all options are open to the competent authority or authorities before the decision on the request for development consent is taken.
5. The detailed arrangements for informing the public (for example by bill posting within a certain radius or publication in local newspapers) and for consulting the public concerned (for example by written submissions or by way of a public inquiry) shall be determined by the Member States.
...”.
[4] The EIA Directive was implemented by The Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2000. In general terms, the EIA Regulations prescribe: the environmental information which an applicant for a proposed development must produce; the form which the information must take; and the publicity requirements with which an applicant must comply.
[5] Regulation 9 requires the applicant to publish an initial notice when an application is first submitted. This must state where copies of the environmental information may be inspected and provide for a method whereby, and a period during which, representations may be made to the respondents. It requires to describe the procedures under which, in terms of Regulation 14A (infra), representations about further or additional information may be made. The nature of possible decisions must be specified.
[6] The EIA Regulations distinguish between: environmental information which is provided by the applicant in an Environmental Statement; further information provided by the applicant in response to a request from the respondents; additional information provided by the applicant or another statutory consultative body; and representations made by consultative bodies or any other person. Additional information is defined in Regulation 2(1) as “substantive information relating to the environment” which is provided, either by the applicant or one of the statutory consultees, after the initial Environmental Statement is received, but before consent is determined, and which is not otherwise part of the Statement.
[7] Regulation 14A requires the respondents to take certain steps when they receive additional information. Its purpose is to ensure that, when important environmental information is received by the respondents after the initial public notice is published, the public is given notice that additional information has been received and where that information can be found. In particular, it provides:
“14A.- Additional information and timing of determination
(1) Where additional information is made available to the [respondents] they shall-
(a) serve a copy of the additional information on the planning authority or authorities ...; and
(b) notify the applicant that additional information has been served on the planning authority or authorities ...
(2) On the first occasion on which the applicant is notified of the service of additional information ... the applicant shall-
(a) publish in accordance with paragraph (3) a notice containing the information specified in paragraph (4); and
(b) serve a copy of that notice on the [respondents].
(3) A notice to which paragraph (2)(a) applies shall be published in two successive weeks in-
(a) the Edinburgh Gazette; and
(b) one or more newspapers circulating in the locality in which the land to which the application relates is situated ...
(4) A notice to which paragraph (2)(a) applies shall-
(a) describe the application in question and state that the [respondents] have received additional information;
(b) identify the planning authority or authorities to which the [respondents] are required to forward a copy of the additional information pursuant to paragraph (1)(a);
(c) state that the planning authority or authorities identified in subparagraph (b) are required to place the additional information on the register;
(d) state that requests for copies of the additional information may be sent to the [respondents] and specify an address for that purpose;
(e) state a date not less than four weeks after the date on which the notice is to be last published in accordance with paragraph (3) by which any person may make representations to the [respondents] in relation to the additional information and specify the address to which any such representations are to be sent; and
(f) state that the details given pursuant to sub-paragraphs (b) to (d) will also apply in respect of any additional information received by the [respondents] after publication of the notice.
...”.
Facts
[8] The petitioners are a charity, one of whose principal objectives is to “conserve and protect wild places with indigenous animals, plants and soils for the benefit of past and future generations”. The respondents, through their Energy Consents and Deployment Unit, are responsible for the consideration of applications for on-shore energy developments under the Electricity Act 1989. The interested parties are the developers of what was originally a proposal to construct an 83 turbine wind farm at Stronelairg.
[9] On 3 July 2012, in accordance with Regulation 9 of the EIA Regulations, the interested parties published a notice in the Edinburgh Gazette and certain local papers to alert the public to their proposal. This Notice stated that a copy of the application, relative plan and Environmental Statement, which presented an analysis of the environmental implications, were available for inspection at the Highland Council’s offices. The Statement was also available at the respondents’ offices. The Notice intimated that any representations could be made to the ECDU by 31 August 2012. It continued:
“When initial comments from statutory consultees are received, further public notices will give advice on how this information may be viewed by members of the public, and how representations may be made to [the respondents]. During the consideration of the proposal, [the respondents] may formally request further information to supplement the Environmental Statement and this will also be advertised in such a manner.
... Following receipt of all views and representations [the respondents] will determine the application for consent in one of two ways: Consent the proposal (sic), with or without conditions attached; or Reject the proposal.”
The Notice stated that, during the consultation process, representations could be sent to the respondents.
[10] The application was intimated to the Scottish Environment Protection Agency, Scottish Natural Heritage, and the Council for their responses as statutory consultees. In August 2012, SEPA stated that they did not object to the proposal. As a consequence of that response, the applicant published a second notice in the Gazette and local papers on 4 September 2012. It stated that:
“...additional information has been received by [the respondents] on this application. Copies of this information have been forwarded to the ... Council to be made available for public inspection by being placed on the planning register.”
Again, any queries could be directed to the ECDU or the Council. The Notice then advised:
“Any subsequent additional information received by [the respondents] before determination of the application, if considered to be materially relevant, will be similarly forwarded to the ... Council to be placed on the planning register and made available for public inspection. However, no further public notice will be issued.” (emphasis added)
Representations were to be made to the ECDU by 24 October 2012. The Notice nevertheless said that they could also be made to the respondents during the consultation process.
[11] In September 2012, SNH objected in principle to the location of the wind farm. They maintained that it would be detrimental to the wildness of the land, to such an extent that the land could no longer be considered wild. The objection stated that the effect of the wind farm on the landscape could not be mitigated.
[12] The Council consulted on the application in early 2013. They had discussions with the interested parties about removing some of the turbines and lowering the height of others. Revised “visualisations” and photo-montages of the development were produced. These were uploaded onto the Council’s website in February 2013. A Council planning officer produced a report, dated 6 February 2013, in preparation for the Council’s South Planning Applications Committee meeting on 19 February 2013. The report’s purpose was to inform the committee members about the proposal, so that they could consider whether to object to the application. The report recommended that the Council should not object, provided that the number of turbines was reduced to 67 and the height of some of the other turbines was lowered. It considered in some detail the visualisations and photomontages and the impact of the wind farm on the landscape from different viewpoints. The petitioners and members of the public made representations to the Council during the consultation process. Those representations addressed the revised layout of the development.
[13] The Council nevertheless followed the recommendation not to object to the revised plan. They intimated their decision to the ECDU by letter dated 2 May 2013. The planning officer’s report was not sent as an enclosure, but the letter did contain an electronic link to it. The decision letter was uploaded onto the Council’s planning register, which is publicly accessible on the internet.
[14] In September 2013, the Council’s decision was sent by the respondents to SEPA and SNH. Both commented upon it. The revisals did not alter their initial responses in any significant manner. Some members of the public made representations to the respondents about the revised layout in August and October 2013.
[15] By letter dated 6 June 2014, the respondents gave consent for the construction of the revised wind farm, together with deemed planning permission under section 57(2) of the Town and Country Planning (Scotland) Act 1997. It is that decision which is challenged.
[16] The decision letter recorded almost at the outset that, while neither the Council nor SEPA objected to the proposal provided that certain conditions were imposed, SNH maintained an objection “due to the impacts ... on wild land”. The petitioners and others objected too. Under the heading of the respondents’ “Considerations” there is a recording of the Council’s response and a statement that the revised scheme did not result in any impacts not already known. Under “Main determining issues” the respondents included that of “environmental impacts ... in particular the landscape and visual impact”.
[17] There was a consideration of the respondents’ policy of reducing greenhouse gases and of increasing sustainable economic growth. The need to preserve very sensitive areas of wild land was emphasised. The letter stated, in particular, in relation to planning policy:
“[The respondents] have taken into account the fact that there are impacts from this development on some sensitive and remote areas, but consider that the location of the turbines has been considered carefully and that the landscape and visual impacts of the reduced development are minimised in line with [Scottish Planning Policy 2010]. The design of the windfarm has gone to considerable lengths to safeguard the area’s wild land character insofar as possible, and the impacts that remain have been weighed against the benefits of the development. Fundamentally, [the respondents] are of the view that on balance the very significant renewable energy benefits of this development and their contribution to sustainable economic growth mean that the development is broadly supported by policy”.
Under the specific heading “Landscape and visual impacts”, the respondents recognised that these impacts were a cause of concern to some objectors, including SNH and the petitioners. They considered that the:
“visual impact of the development from beyond the area immediately around the development site has been effectively minimised by its sitting in an upland basin, so that views ... are largely shielded from most directions by surrounding high ridges and peaks.”
Specific account was taken of the visualisations from public roads. The respondents noted that some significant visual impacts were inevitable, but these had been effectively minimised and did not warrant refusal of consent in the context of the considerable benefits that the development would bring. Particular mention was made of SNH’s concern about the possible change in character of a larger area as a result of cumulative impacts.
[18] One section of the decision letter was dedicated to “Wild Land”, which the respondents recognised was a major cause of concern to SNH and the petitioners. The SNH view that the area would no longer be classified as wild land and the petitioners’ contentions on detrimental impact to the landscape, visual amenity and wild land characteristics were noted. Nevertheless, account was taken of the topography of the site, sitting in a natural hollow. The respondents acknowledged that the development would still have a significant impact on the wildness qualities of the land. They concluded nevertheless that:
“... given the very considerable renewable energy and economic benefits this large development will bring ... the impact on wild land does not on this occasion warrant refusal of consent”.
Regard was had to renewable energy benefit and economic benefits, notably the development of new indigenous industries, particularly in rural areas. The development was likely to have some positive socio-economic effects, especially in employment and investment in the area. Notwithstanding the 96 objections and those in some of the responses, the respondents concluded that:
“... the environmental issues can be appropriately addressed by way of mitigation, and that any impacts which remain are outweighed by the very considerable benefits such a large wind farm development will bring”.
The Lord Ordinary’s Reasoning
[19] The Lord Ordinary upheld three of the petitioners’ grounds of challenge. The first concerned the Planning officer’s report of 6 February 2013 and the Council’s decision letter of 2 May 2013. The question was whether the content of those documents constituted additional information for the purpose of the EIA Regulations. The Lord Ordinary considered that the report contained “substantive information relating to the environmental statement”. It was clear from the report that Council officials did not agree with the conclusions in the interested parties’ Environmental Statement in relation to the visual impact of the development upon the landscape. The report had identified eight key viewpoints at which the visual impact would be unacceptable. For each of these viewpoints, the report proposed revisions to the layout. The report contained not only comments about the likely environmental effects of the proposed development, as recorded by the interested parties, but also a substantial amount of factual information about the visual impact of the development as a result of the discussions between the Council and the interested parties. Parts of that information had not been included in the Environmental Statement. As the information was provided by a consultative body, after receipt of the Environmental Statement but before determination of the application, the information constituted “additional information”. The respondents were therefore obliged to comply with the terms of Regulation 14A(3) by publishing notices in the Edinburgh Gazette, and the local press. They had not done so.
[20] Whether information received by the respondents constituted “additional information” was a question of fact and not of planning judgment. In any event, the report and associated documents were so clearly “additional information”, for the purposes of Regulation 14A, that, even if the character of the information did fall to be determined by the exercise of planning judgment, no reasonable decision maker could regard it as anything other than “additional information”. The respondents had thus granted the consent in breach of Regulation 14A.
[21] The Lord Ordinary was invited to refuse the remedy of reduction, even if he considered that the respondents had failed to comply with the terms of Regulation 14A. However, in an action for judicial review, the court was being asked to act in defence of the rule of law, and not to vindicate a private right (AXA General Insurance Company v Lord Advocate 2012 SC (UKSC) 122 at para 162 and 169). As a consequence of the respondents’ breach of Regulation 14A, members of the public had been denied the opportunity to make representations on the revised scheme. Had they been given the opportunity to do so, as provided for by Regulation 14A(4)(e), they could have objected on the basis that the development remained environmentally unacceptable, notwithstanding the revisions that had been accepted by the interested parties.
[22] The second successful ground of challenge was that the respondents had failed to take into account that the objection of SNH had been one “in principle” to the location of a windfarm at Stronelairg. The Lord Ordinary considered that the summary of the SNH advice in the decision letter did not accurately reflect the nature of the objection. The SNH representations were environmental information, which the respondents were bound to take into account. The “in principle” element of the objection was key to the whole objection.
[23] The third successful ground of challenge was to the respondents’ reasoning. The Lord Ordinary considered that, if the respondents had taken into account the SNH objection, they had still failed to give adequate reasons for rejecting it. The petitioners did not claim that they had been substantially prejudiced by the failure to provide adequate reasons. A deficiency in reasoning could cause substantial prejudice, where the reasons given raised a doubt as to whether the decision had been taken within the powers of the Act. The absence of any reference to the SNH objection in principle meant that there was a substantial doubt as to whether the decision had been taken in accordance with the terms of Regulation 4(2)(b) of the EIS Regulations. On the basis of those three challenges, the Lord Ordinary reduced the consent.
Submissions
Respondents
[24] Before the Lord Ordinary, the respondents’ position had simply been that: the Council report and associated documents were in the public domain; they had been available to the public for inspection; the petitioners had inspected and commented upon them; and therefore the petitioners had suffered no prejudice. It was only after the issue of the Lord Ordinary’s opinion that the respondents had amended their pleadings to explain that, unknown to the Lord Ordinary, Regulation 14A notices had been published in September 2012. Even if the Council report and decision had constituted “additional information”, there had been no breach of Regulation 14A.
GROUND ONE
[25] Article 6(2) of the EIA Directive set out the requirements of publication and participation. The manner in which that was to be done was left to the individual Member State to determine. The Directive only required the publication of a notice early in the procedure in terms of Article 6.2. It did not require publication of consultation responses (R (Corbett) v Cornwall Council [2014] PTSR 727, Lewis J at para 62 & 73). Article 6.3 provided that certain information had to be made available to the public. Information, which only became available after the notice had been published, was also to be made available to the public. Article 6.4 provided that, when a member of the public approached the authority and requested information, it had to be provided. There was no obligation to issue the information to particular persons, or to publicise the existence of particular information. If the Directive had intended information to be published, rather than it being made available to the public, the Article would have said so. There was no obligation to publish and consult on “additional information” under the Directive.
[26] The obligation under Regulation 14A arose when “additional information” had been received by the respondents. The obligation was only to publish one notice on the first intimation of additional information. The notice did not require to inform the public of the nature or content of the information, but only to advise that information had been received. The purpose of Regulation 14A was to inform the public that some additional information existed and that it would be available for inspection. The construction of the terms of Regulation 14A(2) proposed by the petitioners was an ungainly and unlikely one. The term “on the first occasion” was used to make it clear that there was an obligation to publish a notice only once. The alternative would lead to a whole series of notices.
[27] The information in the Council report had been put into the public domain. The report, together with the visualisations, had been placed on the Council’s website. The petitioners had been aware of the report and the visualisations. They had been involved locally in the Council’s decision making process. They had raised judicial review proceedings to challenge the decision of the Council not to object. Members of the public had commented on the revised proposal to both the Council and the respondents. All of the representations had referred to the proposal that was before the Council, and the possible reduction to only 67 turbines. The visualisations, and the Council’s decision letter, had been placed on the Council’s planning register.
[28] Whether the information contained within the Council report was “additional information” for the purposes of Regulation 14A had ceased to be of importance. However, the Lord Ordinary had erred in his analysis of the report, particularly in relation to the significance of the viewpoints, which was a matter on which he had not heard submissions. He had erred in not allowing the respondents a degree of planning judgment to determine whether particular information constituted “substantive information relating to the environmental statement”. That was a question of degree, and therefore one of planning judgment (Persimmon Homes (Thames Valley) v Stevenage Borough Council [2006] 1 WLR 334 at paras 21-31).
[29] If the court considered that there had been a breach of Regulation 14A, the issue became whether the court should exercise its discretion to refuse to reduce the consent. The Lord Ordinary had referred to passages from Axa General Insurance Company v Lord Advocate 2012 SC (UKSC) 122, which concerned standing. Standing was not disputed. The Lord Ordinary had erred in contrasting the position of the petitioners with the position of the public. The petitioners were part of the public. The relevant documents had been available to the public as they were to the petitioners. The petitioners had failed to establish any prejudice.
[30] There had on any view been substantial compliance with the Regulations. The purpose of the regime was to ensure efficient and inclusive decision making, and not to create an “obstacle race” (R (Jones) v Mansfield District Council [2004] Env LR 21, Carnwath LJ at para 58). The court retained a discretion to refuse a remedy where a breach of the EIA Regulations had been established, but the breach had caused no substantial prejudice (R (Champion) v North Norfolk District Council [2015] 1 WLR 3710, Lord Carnwath at para 54). All of the environmental information had been put into the public domain. The petitioners had not been prevented from making representations upon it. Any breach had not frustrated the objective of the EIA Regulations or Directive (Ghadami v Harlow DC [2005] 1 P&CR 19, Richards J at paras 67 and 73).
GROUNDS TWO AND THREE
[31] The respondents had properly understood the nature of the SNH objection. SNH had considered that the impact on wild land could not be mitigated. The objection had been one of principle. The Lord Ordinary had erred in concluding that the decision letter failed to show that the respondents had understood, and taken into account, SNH’s advice. The decision letter did not demonstrate any misunderstanding.
[32] The Lord Ordinary had erred in failing to take into account the nature of the statutory duty to give reasons, set out in Regulation 10(3A) of the EIA Regulations. This informed the stringency of the duty to give reasons in the particular case (Chief Constable, Lothian and Borders Police v Lothian and Borders Police Board 2005 SLT 315, Lord Reed at para 70). Regulation 10(3A) provided that the decision letter should summarise the main concerns and opinions expressed by those affected by, or having an interest in, the application, and, in light of those opinions, the main reasons for reaching the decision to grant or refuse consent. The decision letter, fairly read, had adequately dealt with the SNH objection.
[33] The Lord Ordinary had erred in concluding that the petitioners had suffered prejudice as a result of the nature of the reasons given. There was no substantial doubt as to whether the decision had been taken in accordance with the EIA Regulations. The petitioners had not claimed before the Lord Ordinary that they had been substantially prejudiced by any failure to provide adequate reasons.
Interested Parties
[34] The interested parties adopted the submissions of the respondents on the three grounds of challenge. In addition, in relation to the second and third grounds, the factual background which had been before the Lord Ordinary was relevant to the way in which he had considered the respondents’ decision letter, the Council report and the visualisations. The main area of dispute between the interested parties and the petitioners had been whether the landscape had the capacity to accommodate a wind farm, or, to put it another way, the sensitivity of the landscape to that sort of development. The respondents had treated the objection of the petitioners and the SNH as one based on the sensitivity of the landscape.
[35] The respondents had considered the SNH objection on the sensitivity of the land. The factual background, which had been before the Lord Ordinary, had highlighted the dispute about the sensitivity and the “wild land” status. The interested parties had addressed the wild land status in the Environmental Statement. The respondents had taken this information into account. The Lord Ordinary had erred in considering the possibility of mitigatory revisions to the project as a “stand alone” issue, rather than as one aspect of the sensitivity of the landscape. The design had been intended to locate the wind farm in a bowl-shaped hollow, largely to obscure it from view. The revisions proposed by the Council had not been changes to the design, but aimed at improving the design’s effectiveness.
[36] The Lord Ordinary had erred in conducting his own private analysis of the information contained in the Council report relative to the Environmental Statement. The consensus between parties had been that the Environmental Statement had been adequate. There had been no challenge to it from the petitioners. In concluding that the Council report had contained “additional information”, the Lord Ordinary must have considered that the Environmental Statement had been deficient. That was incorrect as a matter of fact. The Lord Ordinary had failed to take into account the information contained within one of the technical volumes of the Environmental Statement. There was no additional information in the Council report.
Petitioners
[37] The petitioners submitted that the main issue was whether the EIA Regulations properly transposed the EIA Directive. It was for the Member State to determine the manner in which the Directive was to be implemented. The EIA Regulations had to be interpreted in a manner compatible with the Directive. The respondents were attempting to conflate the opportunity to make representations to the Council during their consultation process with the opportunity to make representations to the respondents on the revised scheme. The public had been denied the opportunity to comment on the revised scheme because Regulation 14A had not been complied with. It envisaged a public notice to advertise the existence of the additional information in the Council’s decision letter and report. If the respondents wished to rely on any argument about lack of prejudice to the petitioners or the public, it was for them to demonstrate that the outcome would not have been different (R (Champion) v North Norfolk District Council [2015] 1 WLR 3710).
GROUND ONE
[38] The report and decision letter from the Council had constituted “additional information” for the purposes of Regulation 14A. They had contained substantive information relating to the environment, which had been provided by a public body. The decision letter had recommended the removal of certain turbines, and the reduction in height of others. It had made a revised assessment of the environmental effect of the development. The Regulation 9 notice indicated that there would be further notices when responses from the consultative bodies had been received. The public were entitled to rely on the content of that notice.
[39] The EIA Directive’s purpose was to provide for effective public participation, especially by NGOs. Any procedures adopted by a Member State had to comply with the terms of the Directive. Article 6.2 provided that the public had to be informed of certain matters, including the nature of possible decisions. Once the Council had responded, there was a third option on the table; viz to grant consent for a reduced development, which had not been previously consulted upon. The public had to be given a timeframe within which to make their response to it. It was not good enough for the respondents to seek to rely on the terms of the notice which had been published in September 2012, which required further representations to be made by 24 October 2012, and which advised that no further notice would be published.
[40] The EIA Regulations were only consistent with the aims of the EIA Directive if “additional information” were read and interpreted to include the Council report and decision letter. Regardless of what the Lord Ordinary may have added by carrying out his own visual assessment, that was what was required. Regulation 14A ought to be interpreted as to require the publication of a notice each time additional information was received.
[41] It was not possible to determine how many of the 96 objectors who had commented on the original scheme, would have responded to the Council report and decision letter, if they had been advertised. The petitioners had been specifically concerned with the landscape and visual impact, but representations may have been made about whether the reduction in the carbon output of the scheme justified damaging the area. The fact that members of the petitioners and the public had made representations to the Council was irrelevant to the question of prejudice. The interpretation proposed by the petitioners was in line with the approach taken in R (Edwards) v Environment Agency [2013] 1 WLR 2914.
[42] The respondents had not pointed to any decision taken by them whereby the contents of the Council report was not “additional information”. There had been no exercise of planning judgement to that effect. The Lord Ordinary had been correct to conclude that it was a matter of fact whether or not the information was additional. If the issue was not clear, there ought to be a reference to the Court of Justice of the European Union on the proper interpretation of Regulation 14A (R v International Stock Exchange of the United Kingdom etc Ex p Else (1982) [1993] QB 534, Bingham MR at 545D).
[43] The Lord Ordinary had exercised his discretion to reduce the decision properly. The petitioners had been prejudiced by the lack of any clear statement that they could make representations to the respondents. They had asked for a meeting, but had been told that they could not discuss Stronelairg at it. Had there been publication of a notice, other members of the public might have supported their position. Where there had been a breach of the EIA Directive, the discretion not to reduce the decision had to be confined to the narrowest grounds possible (Berkeley v Secretary of State for Environment etc (No1) [2001] 2 AC 603). There was prejudice in not being allowed the opportunity to encourage other people to support one’s cause (Walton v Scottish Ministers 2013 SC (UKSC) 67 at para 110). If the petitioners had had a definite timeframe to respond after the Council response, they could have taken further steps to commission a landscape architect to consider whether the mitigatory measures proposed by the Council would be effective or not. The petitioners had been confused as to whether or not they could make further representations.
[44] It was not for the petitioners to establish that the result would have been the same regardless of any other representations. It was for the respondents and the interested parties to prove that, if they wished to rely on a lack of prejudice (R (Champion) v North Norfolk District Council [2015] 1 WLR 3710, Lord Carnwath at para 58; C-72/12 Gemeinde Altrip v Land Rheinland-Pfalz (Vertreter des Bundesinteresses beim Bundesverwaltungsgericht intervening) [2014] PTSR 311). Given the special role of NGOs in the ambit of the EIA Directive, the question of prejudice or lack thereof should not play an important part in a decision of whether or not to reduce the decision.
GROUNDS TWO AND THREE
[45] The Lord Ordinary had been entitled to conclude that it was significant that the respondents had failed to mention that the SNH objection was an “in principle” one in the decision letter. The letter had failed to address the conclusion of the SNH that the impact on the landscape could not be mitigated. The Lord Ordinary had been entitled to conclude that the respondents had not taken the SNH objection into account on that fundamental point.
[46] Whilst in general the duty to give reasons was a well-established one, where the respondents disagreed with the advice of their principal advisor, there was a higher duty on them to give clear and cogent reasons. The respondents required to give a cogent reason why they had rejected the advice of the SNH, and why they were instead following the Council’s recommendation (R (Hart DC) v Secretary of State for Communities and Local Government [2008] 2 P&CR 16 at 49; Horada v Secretary of State for Communities and Local Government [2016] EWCA Civ 169).
Decision
[47] It is, putting matters mildly, unfortunate that the Lord Ordinary was allowed to proceed to his decision that there had been a breach of Regulation 14A of the EIA regulations in ignorance of the existence of the regulation 14A notices. The post judgment revelation of these notices must prompt a re-evaluation of the petitioners’ averments of a breach of that regulation.
[48] Regulation 9 of the EIA regulations requires the publication of a notice when an application is first submitted. This provision was complied with by publication of the notice on 3 July 2012. This notice gave the intimation of the existence of the application, the relative plan and the Environmental Statement and advised of where these documents might be accessed. It stated how representations could be made and prescribed a timetable for this. In this respect, not only were the terms of Regulation 9 obtempered, but also those of Article 6.2(a), (b), (e), (f) and (g), 4 and 5 which it, in any event, fully implements.
[49] The requirement in Regulation 14A, in so far as relating to the public, is to notify the receipt by the respondents of “additional information”. This requirement only arises on the “first occasion” upon when the applicant is told of the service of additional information on the respondents. The notice must state that additional information has been received and that it has been forwarded to the planning authority for placement on their planning register. This Regulation fully implements Article 6.3 of the Directive. It was complied with in September 2012 after the SEPA response.
[50] Neither the Directive, nor Regulation 14A, require there to be any more than one notice advertising the receipt of additional information. Indeed, the Regulation is clear in its terms that only one intimation of the existence of additional information need be made. The public are thereby put on guard that, thereafter, there may be further material on the Council’s planning register. This poses no practical difficulty for the interested member of the public, since the website may be checked from time to time for any such material. If the petitioners’ contentions were correct, there would require to be, in many cases, multiple newspaper notices advising of the receipt (but not the content) of additional information of whatever nature in circumstances in which the public would already be aware of the potential for additional information to have been presented and which they could access on the click of a mouse.
[51] Some reliance was placed on the terms of the Notices in so far as they specified, as they were bound to do under the Regulations, (9(2)(c); 14A(4)(e)) time periods for representations to be made relative to, respectively, the application and the additional information. The initial notice intimated that “further public notices” would follow once initial comments from statutory consultees were received. That intimation was duly complied with once the SEPA response was received. The Notice did not carry with it any suggestion that multiple notices would follow each response.
[52] The regulation 14A notice gave a time for responses relative to the receipt of the SEPA response. This time frame could not, on any view, be relevant to the making of any representations relative to responses or additional information received after its date. That, however, would have been obvious. There is no indication in the notice that representations could not be made after the date specified. It is clear that they were so made, by, amongst others, SEPA and SNH, given the timing of the Council’s response relative to that of the notice. The petitioners plead confusion. If any mist existed, it could have been dispelled by a straightforward enquiry of the respondents. There was ample time, between the Council intimating their decision in May 2013 until the respondents’ decision over a year later, to make any representations on any additional information.
[53] That having been said, it may be that, for the future, consideration should be given to amending the style of the Regulation 14A notices, so as to provide an express period, after the uploading of additional information onto a local authority’s planning register, during which representations to the respondents might be made.
[54] In light of the revelation of the regulation 14A notices, it may not be of particular value to conduct a detailed exploration into whether the content of the Council report and decision letter contained “additional information”. It is probably sufficient to record that the Lord Ordinary erred in his analysis of the visualisation and photomontages in ignorance, as he had not been addressed on the issue, of the existence of this material, in its essentials, in the Environmental Statement and its appendices. Regrettably, the Lord Ordinary proceeded upon a misunderstanding of what was already part of the application and had been put into the public domain. Even if these had been new visualisations, or similar material taken from different viewpoints, it would be difficult to categorise them as additional information of the type envisaged. What was clearly known from the application were the locations and heights of the turbines. Creating images from different angles on the surrounding landscape does not provide the public with any information not already readily known and understood.
[55] If Regulation 14A had not been complied with, in order to avoid the normal consequences of a breach of a procedural requirements, the respondents would have required to establish that no different decision could have been reached, even if other representations had been received. There was no serious attempt by the petitioners to demonstrate that there were any new or different arguments that could have been presented, which had not already been considered by the respondents in the decision-making process. It was said that an anonymous member of the public could have made a representation about the carbon payback of the reduced scheme. This was speculative in the extreme. The reality is that the public, and the petitioners, did have ample opportunity to comment on the original application and the revised scheme. They made such representations as could be made, focussing on the impact of the proposal on the landscape and the wild nature of the land. There was nothing to suggest that there existed further and better points which could have been presented if yet a further notice had been published intimating that, following upon the Council’s decisions, further representations might be made to the respondents beyond those already recorded in the report to the Council and those by SNH and the public themselves.
[56] On the second and third grounds of challenge, very substantial parts of the decision letter were aimed at addressing the SNH “in principle” objection. The Lord Ordinary erred in focussing on the absence of a reference to the words “in principle”. The decision letter clearly addressed the substance of the SNH objection. As outlined above, it is apparent from the decision letter that careful consideration was given to the visual impact of the development and its effect on the wild land upon which it was to be built. The respondents nevertheless held that the energy benefits and the contribution the development would make to sustainable economic growth outweighed the environmental aspects. This was a planning judgment which the respondents were entitled to make. The terms of the decision letter leave no real or substantial doubt as to what the reasons for the decision had been, and what material considerations were taking into account in reaching it (Wordie Property Co v Secretary of State for Scotland 1984 SLT 345, Lord President (Emslie) at 348).
Protective Expenses Order
[57] The petitioners applied for a Protective Expenses Order (“PEO”) in the Outer House. The Lord Ordinary refused the motion by interlocutor dated 31 October 2014. Leave to reclaim against that decision was refused. The petitioners nevertheless continued with the challenge without the protection of a PEO. Following intimation of the reclaiming motion, the petitioners sought to cross-appeal the refusal of the motion. This was on the basis that the effect of a reclaiming motion was to open up for review all the prior interlocutors of the Lord Ordinary (RCS 38.6(1)). That contention overlooks the principle that previous interlocutors may only be opened up for the purpose of doing justice in respect of an interlocutor which has been competently reclaimed. It is not competent to seek to challenge an interlocutor which has nothing to do with the merits of the interlocutor which is subject to the reclaiming motion (McCue v Scottish Daily Record and Sunday Mail Ltd 1998 SC 811) especially where leave to do so has been refused.
[58] Furthermore, it is not practicable to review what is essentially a procedural decision relative to the conduct of the Outer House proceedings at this stage of the litigation. All parties have conducted their cases, after the Lord Ordinary’s refusal, on the basis of the absence of a PEO. Had a PEO been granted, the respondents or the interested parties may have tailored their cases in a different fashion.
[59] In any event, to seek to review the Lord Ordinary’s interlocutor at this stage, when the court retains a discretion to modify any award of expenses at the conclusion of the case (R (Edwards) v Environment Agency [2013] 1 WLR 2914) would serve no practical purpose.
Conclusion
[60] For all of these reasons, the reclaiming motion must be allowed, the interlocutor of the Lord Ordinary dated 4 December 2015 recalled, the respondents’ third and fourth pleas-in-law and the interested parties’ second to eighth pleas-in-law sustained, the petitioners’ second to sixth and ninth and tenth pleas-in-law repelled, and the prayer of the petition set out in the third Statement of Fact refused. The cross appeal fails.