Inner House sends wind farm application for reconsideration after finding reporter did not consider project splitting issue appropriately

About this case:

• Citation:
  [2026] CSIH 10
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lady Wise

Raeshaw Farms Ltd challenged the decision of the reporter for the Scottish ministers on the grounds of inadequate reasons for not considering a potential issue of project splitting, and separately irrationality. The developer, Energiekontor UK Ltd, appeared as an interested party having previously successfully appealed to the respondent over the initial refusal of planning permission by Scottish Borders Council.

The appeal was heard by the Lord President, Lord Pentland, with Lady Wise and Lord Ericht. The appellant was represented by J de C Findlay KC and K Young, advocate, the respondent by Crawford KC and McLean, solicitor advocate, and the interested party by Burnet KC and McKenna, advocate.

Salami slicing

On 15 December 2022, the interested party, a renewable energy development company, submitted a planning application to Scottish Borders Council for the erection of eight wind turbines and associated infrastructure, to be sited about 1.3 kilometres to the northeast of the village of Heriot and to be known as Wull Muir Wind Farm. The appellant, which operated a farm near the proposed development, objected to the application, which was initially refused. On an appeal by the interested party, the respondents appointed a reporter, who issued a decision on 14 January 2025 to grant planning permission subject to various conditions.

In allowing the interested party’s appeal, the reporter concluded that the proposal would make a “worthwhile and relatively early contribution to Scottish Government targets for the supply of renewable electricity and the reduction in greenhouse gas emissions”. They noted the appellant’s assertion that the interested party had not detailed the full grid infrastructure necessary to connect the proposal, but disagreed that this made it impossible to assess the full environmental impact.

The reporter dismissed a reference by the appellant to the “salami slicing” of the project, which he referred to as an attempt to circumvent the Environmental Impact Assessment Directive by dividing what was in reality a single project into separate parts, saying that any grid connection would require its own assessment. The parties noted previous consideration of the issue of project splitting in European Union cases and two Outer House decisions including Wildland v Highland Council (2021), where it was held that there was obvious uncertainty about aspects of the project which meant that no impermissible division had taken place.

Counsel for the appellant submitted that it would be wrong to assess the proposal without reference to the necessary grid connection. The reporter’s response to this argument was opaque and did not address the critical issue of whether they constituted the same project for the purpose of EIA assessment. Moreover, the authorities were clear that intention to salami slice was not the relevant benchmark, what mattered was the effect a project was likely to have on the environment.

Focused too narrowly

Delivering the opinion of the court, Lady Wise said of the issue of project splitting: “We reject the submission made at the hearing before us by senior counsel for the respondents that any error by the reporter on this point was not a material one. This was a material error. Further, and also materially, the reporter misdirected himself in relation to the definition of ‘salami slicing’ in a way that resulted in a failure to focus on the fundamental question of the interrelationship between the two phases of development and whether they both required an EIA at this stage.”

She explained further: “By focusing too narrowly on the way in which the application was framed rather than considering what was the true nature and scope of the project, the reporter failed to show that he understood the central issue in contention. In contrast with the situation in Wildland the reporter proceeded on the basis that it was unknown whether planning permission would be required for the future work not included for assessment in the EIA. That lack of knowledge was relevant to the correct approach that should have been taken to the project splitting issue.”

Considering the irrationality challenge, Lady Wise said: “Specific reference was made to the predicted generating capacity of the development once operational. In R (Ashchurch RPC) v Tewkesbury BC (2023) the road bridge that was part of a wider residential development had been the subject of an EIA that did not include the wider development. The Court of Appeal considered that this was irrational, Andrews LJ stating that whilst ‘it was open to the decision-maker to treat the prospective benefits of the wider development as material factors, it was irrational to do so without taking account of any adverse impact that the envisaged development might have, to the extent that it was possible to do so’.”

She concluded: “We consider that there is force in the submission that the approach in this case was similarly irrational. The respondents’ answer to the point was that the reporter was entitled to assess the proposed development on its own merits and on the assumption that a grid connection would be provided at a later date. That does not, with respect, address the irrationality of addressing only the merits and not the demerits of the anticipated completed development.”

The court therefore quashed the reporter’s decision of 14 January 2025 and remitted the matter to a different reporter for a fresh decision.