Onshore wind farm developments frequently divide opinion, especially when the wind farm is to be located in a remote or environmentally sensitive area. Yet there have been few legal challenges to the grant of consent and fewer have been successful. In the case of The John Muir Trust, Petitioner the Court of Session has quashed the Scottish Ministers’ decision to grant section 36 consent and deemed planning permission for a 67 turbine development in Stronelairg in Highland Region.
The application was made in June 2012 and granted consent in June 2014. Scottish Natural Heritage (SNH), among others, objected to the application on the basis of its adverse impacts on the Monadhliath Mountains. The area had been designated by SNH as a core area of wild land. As a consequence of the Stronelairg consent SNH revised its map of designated wild land to remove a large area surrounding the consented wind farm. The John Muir Trust, an environmental charity that seeks to protect wild places, sought judicial review of the Scottish Ministers’ decision.
Three grounds of challenge were upheld:
- During the application process The Highland Council, a statutory consultee, submitted a detailed report to the Scottish Ministers. The report contained substantive factual information and an assessment of the visual impacts of the proposed wind farm. Crucially, the information and assessment differed from and supplemented the environmental information contained in the applicant’s own environmental statement. The Court found this to be “additional environmental information” in terms of the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2000 (the EIA Regulations). The Scottish Ministers had not advertised the information or permitted the public to make representations on it as required by Regulation 14A of the EIA Regulations;
- The decision letter acknowledged SNH’s objection to the application. However, the Court found no indication that the Scottish Ministers had taken into account SNH’s objection in principle to the proposed wind farm at this location and, in particular, SNH’s position that it was not possible to mitigate the adverse impacts of the proposed wind farm. As such, the Scottish Ministers failed to take into account a material consideration; and
- It followed that the Scottish Ministers’ decision letter also failed to provide adequate (or in effect any) reasons for not following SNH’s advice.
Comment
This is an interesting case for several reasons. First, the judgment provides a detailed analysis of what may constitute additional environmental information in terms of the EIA Regulations. This is a complex area where developers are well advised to seek expert legal advice, particularly as this judgment may encourage enhanced scrutiny by objecting parties. It should be noted that the information in question, triggering the requirement to advertise and invite representations, was not provided by the applicant but by a third party statutory consultee. Developers should consider how the decision-maker, be it a planning authority or the Scottish Ministers, is treating additional environmental information received from all such parties.
Secondly, the case has been hailed in some quarters as a significant victory in the defence of wild land against what is regarded as the encroachment of wind farm developments. However, the grounds of challenge relating to wild land policy were unsuccessful and Lord Jones explicitly rejects the petitioner’s “assertion that the various statements which employ the word “safeguard” operate to prohibit all development which will have an adverse impact, to any extent, on wild land”[1]. It was for the Scottish Ministers to exercise their planning judgement in deciding whether to grant consent. SNH’s advice, like any other material consideration, should have been taken into account but there was no requirement to follow SNH’s advice.
Thirdly, and related, the case was successful because of a procedural error and a failure to take into account a material consideration. The judgment emphasises the importance of adhering to correct procedures and providing an adequately reasoned decision.