Energy policy in consenting decisions: a matter of planning judgement?

The Court of Session has upheld the Scottish Ministers’ decision to refuse to grant consent for the development of a wind farm on the Queensberry Estate near Sanquhar.

In June 2017, North Lowther Energy Initiative Limited (“NLEI Ltd”) submitted an application for consent under section 36 of the Electricity Act 1989 (“1989 Act”) to the Scottish Ministers for the development of the wind farm comprising 30 (originally 35) turbines, with a maximum height of 149 metres and a generating capacity of 147 megawatts. Despite the scale back in the number of turbines, the project was rejected by the Scottish Ministers after a public inquiry in October 2019 and upon recommendation by the Reporter. The overarching reason for such refusal was, amongst other reasons, due to the substantial adverse visual effects the proposed development would have on the Lowther Hills landscape and historic location of Wanlockhead, which was deemed to outweigh the benefits of the windfarm’s contribution towards achieving net zero targets.

Outer House

NLEI Ltd raised judicial review proceedings in the Outer House of the Court of Session and sought to have the Scottish Ministers’ decision to refuse consent reduced on several grounds which we have summarised below. NLEI Ltd were unsuccessful on all grounds put forward.

Ground 1 - the Reporter erred in law in his interpretation of Schedule 9 of the Electricity Act 1989

The Outer House, presided over by Lord Ericht, found that the Reporter’s report to the Scottish Ministers displayed a “clear error of law” in finding that NLEI Ltd was under an obligation to mitigate under schedule 9 paragraph 3(1)(b) of the 1989 Act. Such obligation applies only to licence holders or persons authorised by an exemption, which did not include NLEI Ltd.

However, an error of law is not in itself sufficient for the reduction of a decision in judicial review. It is necessary to consider whether the error is material in the sense that if it had not been made, a different outcome would have resulted. In Lord Ericht’s opinion, the error was not material in this case.

Ground 2 – The treatment by the Reporter of the Conservation Area

NLEI Ltd argued that the Reporter had not applied the requirements of section 64 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 correctly. The Outer House held that the Reporter had not erred in law.

Ground 3 – Reporter’s decision is perverse and irrational

NLEI Ltd argued that there was an inconsistency between the Reporter’s conclusion that the proposed development would "protect sites, buildings and objects of architectural, historic and archaeological interest" and his further conclusion that "as evidenced by the significant and unacceptable landscape and visual effects (and the impact on the setting of Wanlockhead) predicted, the [mitigations included in the development proposals] are insufficient to ensure that the natural beauty and historic interest of the area would be preserved".

The Outer House concluded that in reading the Reporter’s report as a whole, there was no such conflict or inconsistency.

Ground 4 - Whether the Scottish Ministers erred in not applying prior decisions consistently

A further ground of challenge was that the Scottish Ministers had failed to consider previous planning decisions at Fallogo Rigg 2 and Paul’s Hill and had therefore acted inconsistently and unreasonably. The Outer House found that there was no inconsistency between the decisions in Fallago Rigg 2, Paul's Hill II and the current case.

In each of the projects, Lord Ericht noted that the Scottish Ministers required to balance landscape and visual issues against the renewable energy issues. How that balance was struck was an exercise of judgment, taking into account the facts and circumstances of the particular case.

Ground 5 - Whether the Scottish Ministers had proper regard to their obligations arising from the Climate Change (Scotland) Act 2009, the Climate Change (Emissions Reduction Targets) (Scotland) Act 2019 and related Scottish Government policy

NLEI Ltd argued that the Scottish Ministers failed to properly consider and apply the provisions of the 2019 Act. The statement of the Reporter that ministerial statements and council's declaration carry limited weight was not consistent with the new obligations on the respondents under the 2019 Act. It was also inconsistent with the Paul's Hill II decision, where legislation and policy were afforded significant weight. They further submitted that the Scottish Ministers failed to act in accordance with their obligations under section 44 of the 2009 Act.

The Outer House concluded that the Reporter and the Scottish Ministers could not be faulted on their consideration of the climate issues. There is nothing in any of the policies or legislation that states that renewable energy or climate change issues should be the sole or determining factor in a section 36 application. It is clear that the Reporter gave considerable weight to the renewable energy and climate change issues but gave greater weight to the visual impact and landscape issues. That was something that he was entitled to do within the exercise of his discretion and judgment in the balancing exercise.

Ground 6 - Whether the Scottish Ministers erred in law in their consideration of the NLEI Ltd’s legal submissions in terms of section 3 of the Natural Heritage (Scotland) Act 1991

NLEI Ltd argued that the Scottish Ministers had failed to take into account NLEI Ltd’s submission that NatureScot had failed to carry out its balancing duties under Section 3 of the Natural Heritage (Scotland) Act 1991. The Outer House found that the Reporter had considered the manner in which NatureScot had addressed its balancing duties and had concluded that there had not been a failure by NatureScot.

Ground 7 – Whether the Scottish Ministers demonstrated apparent bias

NLEI Ltd submitted that the Scottish Ministers had demonstrated apparent bias as NLEI’s closing submission was not published and was the only one on which further submissions were allowed. The Outer House found that the test for apparent bias had not been satisfied.

Ground 8 - Whether notification of the Decision was subject to unreasonable delay in breach of Article 6 of the European Convention on Human Rights

NLEI Ltd argued that the time taken from the date of application to the date of final determination, a period of 3 ½ years, was in breach of Article 6 of the European Convention on Human Rights that everyone was entitled to a fair and public hearing within a reasonable time.

The Outer House found that, while Article 6 does apply to a section 36 application and must be determined within a reasonable time, the reasonable time will depend upon the particular circumstances of the case. This was a complex case involving substantial amounts of evidence and submissions and it was found that the delay was not unreasonable.

Second Challenge

NLEI Ltd unsuccessfully appealed to the Inner House of the Court of Session which upheld the Outer House decision and refused to reduce the Scottish Ministers’ decision.

Comment

The weight to be attached to climate change targets, energy policy and related Ministerial statements in planning and section 36 consent decisions has been a hotly debated issue in numerous appeals and inquiries. The court acknowledged that these matters were of considerable importance although in some cases not fully incorporated into formal policy. Ultimately, they concluded that the weight to be attached to these matters, and any counterbalancing impacts, is a matter of planning judgment which is not for the courts to resolve. They also noted that the contribution of the project (147MW) was a relatively small component in the overall onshore target (8,000MW) and that this was only one form of renewable energy which was, in itself, only one method of tackling climate change.

While not part of the Inner House challenge, it is also important to note that the court found that there was a requirement under Article 6 to determine an application within a reasonable time. In this case, a period of 3 ½ years was not unreasonable due to the complexity and substantial amounts of evidence. However, decision makers should be mindful of the requirement to determine applications within a reasonable time. A period of this length may not always be justifiable, particularly where cases are less complex, and it is not unusual for some cases to take even longer than this.

The Court highlighted a number of other key points for decision makers to keep in mind when determining an application as follows:

1. A Reporter’s report must provide adequate reasons for any recommendation, but this does not mean that the the Reporter is obliged to record everything that is raised. However, if something is of such importance that it ought to be put to the decision maker as a material factor which may affect their decision, a failure to do so is likely to impair any subsequent decision. A Reporter’s report should also not be excessive in length or repetitive in content.
2. There is no requirement for the Scottish Ministers to read the parties' submissions to the Reporter. It is sufficient if the relevant points made in submissions are fairly presented within the distilled report by the Reporter.
3. An error of law in the decision-making process is not in itself sufficient for the reduction of a decision in judicial review. It is necessary to consider whether the error is material in the sense that if it had not been made, a different outcome would have resulted. Failure to afford a particular factor a particular level of weight is not per se an error which is susceptible to judicial review. In the present case, an error of law was made, but it was not material to the ultimate decision.

Article co-authored by Emily McDonald, Trainee Solicitor at CMS.