Campaigner fails in appeal against council review body’s decision to approve wind turbine development in first such case to come before Inner House

Lord Menzies

A campaigner who objected to a local authority’s decision to grant planning permission for two wind turbines near her home has had her appeal refused in the first case in which a council review body’s decision has been challenged in the Inner House of the Court of Session.

Sally Carroll argued that the decision by the local review body (LRB) of Scottish Borders Council was not within the powers of the Town and Country Planning (Scotland) Act 1997, but the appeal judges upheld a ruling by the Lord Ordinary, who held that the decision was “lawful”.

Lord Menzies,  Lady Smith and Lady Clark of Calton heard that developer SR Findlay plans to erect two 110-metre tall wind turbines together with ancillary equipment on land south west of Neuk Farm, Cockburnspath - a site in coastal farmland proximate to a coastal margin considered to be “highly sensitive”.

The propsed development is within 2km of the Berwickshire Coast Special Landscape Area, 4km of the Lammermuir Hills Special Landscape Area, 1km of the Dunglass historic garden, 2km of the Southern Upland Way, and is close to two conservation areas of Oldhamstocks and Cockburnspath and the Berwickshire Coastal Path.

Planning permission for the erection of wind turbines on this site was refused in September 2010, and was refused again by the respondents’ LRB in March 2011 and on the basis that the proposal was “contrary to the Development Plan”.

SR Findlay resubmitted the application for planning permission, and in October 2012 the respondents’ planning officer refused the application, again on the basis that it was contrary to the Development Plan.

The developer sought review of this decision, and on 21 March 2013 an LRB of the respondents concluded that the development was “consistent with the Development Plan” and granted planning permission for the development, subject to conditions.

The appellant, who resides in Cockburnspath and objected to the grant of planning permission, was “aggrieved” by the decision of the LRB and appealed to the Court of Session on the basis that the decision was “not within the powers” of the Town and Country Planning (Scotland) Act 1997 and that the relevant requirements of that Act had not been complied with.

On 17 January 2014 the Lord Ordinary held that the decision of the LRB dated was within the powers of the 1997 Act and refused the appeal - a decision which the appellant sought to challenge in the Inner House.

The appellant argued that the LRB failed to conduct a full, substantive review to the standards discussed in the 2002 case of County Properties v Scottish Ministers.

It “ignored” relevant policies and did not look at all matters as if raised at first instance.

There was no site visit, and a full opportunity was not provided to all parties to present relevant evidence as the LRB heard from nobody except the council’s planning adviser and legal adviser.

The LRB did not conduct a “de novo review”. It set out its entire reasoning in the first four paragraphs of page 3 of its decision letter. There were no findings in fact, no summary of evidence and no assessment of findings in fact, meaning the necessary foundations or “building blocks” for the decision were not present.

Senior counsel submitted that the statutory regime governing LRBs was capable of being interpreted compatibly with the European Convention on Human Rights and with EU law, provided that such an interpretation allows for a de novo review by the LRB, but the problem in this case arose from the Lord Ordinary’s error in interpretation, not in the legislation itself.

It was said that the court required to apply an “intense level of review” and to subject the decision of the LRB to a “more rigorous examination”, but the Lord Ordinary did not do this and, in the circumstances, he erred in failing to do so.

The Lord Ordinary’s conclusion that the LRB’s decision was lawful arose from his view that the LRB was conducting a more limited review than the exercise carried out by a reporter, but it also was submitted that the Lord Ordinary erred in his interpretation of the statute in this respect, and did not have regard to EU law.

However, the appeal judges were not persuaded that the Lord Ordinary had fallen into any error of law and therefore refused the reclaiming motion.

Delivering the opinion of the court, Lord Menzies said: “By way of brief observation, even if we had been prepared to entertain the reclaimer’s submission that the legislation was incompatible with Convention and EU law, we did not find it persuasive as we consider that the LRB was required to adopt a de novo approach, and we are satisfied that it did so. The Lord Ordinary gave a detailed and fully reasoned consideration in his opinion, which we consider amounted to a sufficiently intense scrutiny.”

He added: “Whilst the LRB’s decision letter is not a model of clarity or an example of the best practice which might be achieved under the proceedings introduced by the 2006 Act - such practice could , for instance, aim at providing express assurance of consistency of handling regardless of whether a case is determined by an LRB or the DPEA and, here, could have included the provision of more detailed reasons why the LRB reached a different conclusion from the previous LRB and appointed persons - it says enough in its own terms and by its reference to other material to satisfy us that its decision is within the powers of the 1997 Act and that it complied with the relevant statutory requirements.”