Wildland Ltd and The Welbeck Estates v The Scottish Ministers  CSOH 113
The Outer House has dismissed a petition for judicial review of the decision of the Scottish Ministers to grant section 36 consent and deemed planning permission for the Creag Riabhach Wind Farm in Sutherland. The petitioner challenged the adequacy of the Scottish Ministers’ stated reasons for granting consent contrary to the advice of Scottish Natural Heritage (SNH) in relation to the impact on wild land and wider landscape and visual impacts.
At the time of application (December 2013) the wind farm site was located between two Search Areas of Wild Land. In June 2014 SNH’s map of Wild Land Areas (WLAs) was incorporated into Scottish Planning Policy (SPP), such that the site was now between two designated WLAs but with 5 of the proposed 22 turbines located within the revised boundary of the Foinaven – Ben Hee WLA. These turbines were between 14 and 328 metres within the WLA boundary. The surrounding area, although not the site itself, was also subject to various landscape and other environmental designations, including National Scenic Areas and Special Landscape Areas.
SNH objected to the application on the basis of its impact on wild land, this objection being maintained following designation of the WLAs in June 2014. SNH further advised that the development would have a significant adverse effect on a SLA and raised other landscape character and visual amenity concerns. The Highland Council (THC) did not object to the application. THC’s decision followed the recommendation of a report to committee which appraised, among other matters, the applicant’s environmental statement and SNH’s previously submitted consultation response. Following the required consultation, and with the planning authority not having objected to the application, the Scottish Ministers determined that a public local inquiry was not necessary.
Consent was granted in October 2016. The decision letter recognised that location of turbines within the WLA was contrary to SPP policy affording significant protection to the physical attributes of WLAs. However, the Scottish Ministers considered that the adverse impact would be limited in extent relative to the scale of the WLA. Having regard to competing policies, including policy support for development contributing to the attainment of renewable energy targets, the Scottish Ministers concluded that the balance of benefit supported the grant of consent.
First Ground of Challenge
The petitioner submitted that the Scottish Ministers’ failed to give proper, adequate and intelligible reasons for not following SNH’s advice on the landscape and visual impacts of the proposed wind farm. SNH was the statutory consultee in respect of landscape and visual matters and, it was submitted, there was a particular obligation to provide reasons for departing from SNH’s advice.
Lord Boyd rejected this ground of challenge. The decision letter expressly agreed with the appraisal of landscape and visual impacts set out in THC report to committee. This appraisal provided a comprehensive and detailed appraisal of landscape and visual impacts and, significantly, took into account SNH’s previously submitted (and relatively brief) comments on the landscape and visual impacts of the proposal. The decision letter recorded the views of both SNH and THC and made it clear that Scottish Ministers agreed with the THC’s appraisal of the impacts as being limited and localised.
Lord Boyd further highlighted the particular context and nature of SNH’s landscape and visual advice, drawing a distinction between cases involving highly technical evidence provided by a statutory consultee (such as in The RSPB v Scottish Ministers 2017 CSIH 31) and the present case. In the former context, a decision-maker departing from the expert evidence of a statutory consultee should be expected to provide particularly clear and detailed reasons for doing so. In this case, while landscape and visual impact assessment has some technical component it does not require the same level of technical expertise and contains a subjective element. Looking at the decision letter as a whole the informed reader would recognise that the Scottish Ministers had agreed with THC appraisal and there was no requirement to separately set out reasons for not accepting the advice of SNH.
Second Ground of Challenge
The petitioner submitted that the Scottish Ministers failed to recognise the extent to which SPP (2014) had strengthened the protection of wild land and the weight that should be afforded to SNH’s objection. Further, that the Scottish Ministers had failed to distinguish the circumstances of the application from previous applications where adverse impact on wild land was a determining issue in refusal of consent. This inconsistent approach resulted in substantial doubt as to why consent was granted.
Lord Boyd also rejected this ground of challenge. Planning policy on wild land had undoubtedly developed over the years and the policy contained in SPP (2014) was more rigorous than previous policy. However, the determining issue was whether the Scottish Ministers had applied the policy in force at the time of decision-making. They had, and this policy did not provide an absolute protection against any development in or adversely impacting on WLAs.
As regards previous decisions, the key question was whether these were material considerations which should have been taken into account by the Scottish Ministers. The petitioner failed to show why the earlier decisions were material considerations in the current application. Wild land may have been one determining issue in all the cases but they related to different wind farms, each with its own location specific issues and environmental statements. In reaching their decision the Scottish Ministers had recognised the conflict with wild land policy, balanced this against competing policies, and appraised the positive and negative impacts of the wind farm. This planning judgment was for the Scottish Ministers.
Lord Boyd concluded with the observation that the petitioners’ position appeared to be that no wind farm development should be allowed on designated WLAs and, while that may be, that is a political decision and not one for the courts.