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Cite as: [2006] ScotCS CSIH_41, [2006] CSIH 41, 2007 SCLR 55

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SECOND DIVISION, INNER HOUSE, COURT OF SESSION

Lord Justice Clerk

Lord Macfadyen

Lord Clarke

[2006] CSIH 41

XA49/05

OPINION OF THE LORD JUSTICE CLERK

APPEAL TO THE COURT OF SESSION

under section 239 of the Town and Country Planning (Scotland) Act 1997

THE MORAY COUNCIL

Appellant;

against

THE SCOTTISH MINISTERS

First Respondents;

and

RENEWABLE ENERGY SYSTEMS LIMITED

Second Respondent:

Relating to a decision of the Scottish Ministers by their Reporter, Mr Trevor Croft, dated 11 April 2005 to grant planning permission for a wind farm development and for the excavation of borrow pits at Drummuir Estate, Keith, Banffshire

_______

For the appellant: JD Campbell, QC; Morton Fraser

For the first respondents: Crawford; Solicitor to the Scottish Executive

For the second respondent: CM Campbell, QC; McGrigors

14 July 2006

Introduction

[1] On 11 November 2003 the appellant refused two applications by the second respondent for planning permission for (1) the erection of a wind farm consisting of 21 wind turbines and associated works and (2) the excavation of three small borrow pits at Hill of Towie, Knockan and Machattie's Cairn, Drummuir, Keith, Banffshire. The second respondent appealed against the refusals. The Scottish Ministers appointed Mr Trevor Croft (the Reporter) to decide the appeals.

[2 ] By letter dated 2 February 2005 the Reporter indicated that he was minded, for the reasons set out in the letter, to allow the appeals subject to certain specified conditions and to confirmation by the Keeper of the Registers of the registration of an agreement between the appellant, the second respondent and the landowners under section 75 of the Town and Country Planning (Scotland) Act 1997 (the 1997 Act). I shall call this the decision letter. By letter dated 11 April 2005 the Reporter, having received the appropriate confirmation, formally allowed the appeals and granted the planning permissions subject to the conditions.

[3 ] The appellant appeals against these decisions on the ground that they were ultra vires of the Scottish Ministers, because the Reporter failed to take into account certain material considerations, and were accordingly perverse and unreasonable; and seeks an order quashing the decisions.

The reasons for refusal given by the appellant

[4 ] The appellant refused the applications on the following grounds:

"The proposal is contrary to the Development Plan policies S/ENV1,

L/IMP1, L/ED10, L/ED15, L/IMP2 and L/IMP3 because: (a) It would result in an unacceptably intrusive, dominant and overbearing man-made feature in an open and exposed area of rural landscape which would be detrimental to the appearance and character of the landscape, (b) The impact of the development would be exacerbated by the characteristic of movement associated with the wind turbines and the cumulative impact of this development along with approved windfarms at Pauls Hill (Moray), Cairn Uish (Moray) and Glens of Foudland (Aberdeenshire) and (c) There are not sufficient material considerations to justify a departure from Development Plan policies."

The development plan

[5 ] The development plan is published as a unitary document. It consists of the Moray Structure Plan, approved in 1999, and the Moray Local Plan, adopted in 2000. Although the appellant's reasons for refusal cited six development plan policies, this appeal is based on only two of them, namely the Local Plan economic development policy L/ED10 (renewable energy) and the Local Plan implementation policy L/IMP2 (development in rural areas).

[6 ] Policy L/ED10, so far as relevant to this appeal, is in the following terms:

"Proposals for renewable energy will be considered favourably where they meet the following criteria: ...

(v) they do not result in an unacceptable impact in terms of visual

intrusion, noise, electro-magnetic disturbance, pollution, traffic generation or damage to the local ecology.

(vi) they do not result in an unacceptable cumulative impact."

To supplement policy L/ED10, the appellant issued Wind Energy Policy Guidance (WEPG) in October 2001. This followed a review of those areas with the greatest potential for wind farms. The guidance is directed to the positive promotion of renewable energy developments and the safeguarding of Moray's high quality environment from inappropriate developments. The WEPG classifies Moray into two areas, namely the "unlikely" area which is affected by constraints such as low wind speeds, prime agricultural land, specific national heritage value and the like, and the Preferred Search Areas (PSAs), which are free of such constraints. The appeal site is located within a PSA. It lies between Keith and Dufftown, which are about five kilometres from its eastern and western boundaries respectively.

[7 ] Policy L/IMP2 applies to development in rural areas. So far as relevant to this appeal, it is as follows:

"The Council will seek to ensure that all proposals for development in the rural area ... are compatible in terms of character, amenity and design, integrate (sic) sensitively into the environment and, where possible, located within easy walking range of public transport (this latter requirement will particularly apply to large scale developments)."

Planning guidance

[8 ] For the purposes of this appeal the relevant national policy guidance is to be found in National Planning Policy Guideline 6 (Renewable Energy Developments (revd 2000) (NPPG 6)) and in Planning Advice Note 45 (Renewable Energy Technologies (revd 2002) (PAN 45)). According to NPPG 6,

"Planning policy is based on the principle that renewable energy developments should be accommodated throughout Scotland where the technology can operate efficiently and environmental impacts can be addressed satisfactorily. Furthermore, with improved turbine design, wind farm developers are now able to capture lower wind speeds than previously and the requirement for exposed sites may not always be paramount ... (para 19)

The aim of the Scottish Executive ... is to ensure that the commitment to renewable energy is satisfied and supported through development plan policies and development control decisions unless, at the site level, there are serious adverse impacts that can not be mitigated" (para 22).

PAN 45 says inter alia that

"Scotland has a variety of landscapes. Some will be able to accommodate wind farms more easily than others, on account of their landform and relief and ability to limit visibility. Some are highly valued for their quality. There are no landscapes into which a wind farm will not introduce a new and distinctive feature. Given the Scottish Ministers' commitment to addressing the important issue of climate change and the contribution expected from renewable energy developments, particularly wind farms, it is important for society at large to accept them as a feature of many areas of Scotland for the foreseeable future" (para 71).

The Reporter's handling of the appeal

[9 ] The Reporter conducted a public local enquiry, after which he made an accompanied inspection of the appeal site and various surrounding viewpoints and, with the agreement of parties, unaccompanied visits to a wind farm site under construction at Glens of Foudland and to operating wind farms at Dun Law and Busbie Muir. The latter site was of particular relevance because of its proximity to a town, in that case Ardrossan, and because the turbines there are similar to those proposed at the appeal site in terms of height and general layout and appearance.

[10 ] In addition to the development plan, the appellant's WEPG, NPPG 6 and PAN 45, the Reporter also had before him the policy statements of Scottish Natural Heritage (SNH) on renewable energy (No 01/02, 2001)) and on strategic locational guidance for on-shore wind farms (No 02/02, 2002)) and its Visual Assessment Of Wind Farms: Best Practice Report; and consultation responses from numerous interested bodies such as the Scottish Executive Environment Group, SNH, the Scottish Environment Protection Agency, Historic Scotland, the Royal Fine Art Commission for Scotland, the Scottish Civic Trust, the Association for the Protection of Rural Scotland, and two community councils.

[11 ] When he came to consider the details of the proposal, the Reporter had before him the Environmental Statement which the developer was required to submit in terms of regulation 3(2) of the Environmental Impact Assessment (Scotland) Regulations 1999, and certain other environmental information tendered at the enquiry. He also had the evidence of the expert witnesses for the second respondent and the appellant, and the evidence of supporters and objectors. He had the benefit of technical assessments of the site using, for example, certain recognised matrices, photographic evidence of the appeal site and other such sites, and photomontages showing, from various agreed viewpoints, the likely appearance of the developed site. Lastly, he had the benefit of his inspection of the site and his visits to the important viewpoints and to the other wind farm sites.

The Reporter's decision

[12 ] In making his determination, the Reporter was obliged to "have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations." (1997 Act, s 37(2); s 48(5)(a)). He correctly took as his starting point section 25 of the 1997 Act which required him to determine the appeals in accordance with the provisions of the development plan unless material considerations indicated otherwise. He considered that the issues were (a) whether the proposal was consistent with the development plan and (b) if so, whether other material considerations justified the refusal of planning permission. He considered that the material considerations that were of particular relevance were Scottish Executive policy guidance and advice on renewable energy developments and technologies; the WEPG; the views of SNH; the public perception of the proposals and the impact on local residential amenity (para 114).

[13 ] He then considered each of the development plan policies referred to in the appellant's reasons for refusal (paras 118-148). In particular, he considered criteria (v) and (vi) of policy L/ED10, which he described as being the appellant's principal reasons for refusal. He noted that the appellant had relied on SNH for landscape advice, that SNH had not objected to the proposals and that it was satisfied, following certain amendments to it, that its impact would be acceptable (para 127). Fifteen specific viewpoints had been agreed with the appellant to be important. He was satisfied that they were sufficiently representative to enable a considered view to be taken. He visited five of them that were judged in the environmental statement to be likely to suffer significant change. He concluded that the visual intrusion of the proposal in terms of criterion (v) would not be unacceptable (paras 131, 138). He concluded that the impact of the proposal, together with the impact of other proposed schemes, would not be so great as to justify refusal on the ground of conflict with criterion (vi) (para 141). He considered it possible that a different conclusion could be reached if other potential wind farms were taken into consideration; but he was of the view that, since there was no guarantee that any of them would come to fruition, the possibility that some of them might was not sufficient on its own to justify refusal of proposals that would otherwise accord with the development plan (para 142).

[14 ] He regarded policy L/IMP2 as relevant. He was satisfied, for the reasons given in his analysis of L/ED10 in relation to the facts (paras 121-143), that the requirements of the policy relating generally to siting and design, location, infrastructure capacity and environment were complied with (para 146).

[15 ] Taking all the policies together, he concluded that the proposal accorded with the provisions of the development plan (para 148).

[16 ] The Reporter then considered numerous considerations of possible materiality on a wide range of questions such as residential amenity and employment (paras 149-160) and concluded that, when all of them were taken together, they did not justify the refusal of planning permission.

Submissions for the parties

For the appellant

[17 ] Counsel for the planning authority submitted that the Reporter had misdirected himself in three specific respects, namely (1) he misunderstood and wrongly analysed the landscape and visual impacts of the proposal; (2) he misdirected himself in relation to the cumulative impact of this and other proposed wind farms; and (3) he misdirected himself on the effect of the proposal on residential amenity.

[18 ] Counsel for the appellant submitted that the decision letter failed to set out a proper assessment of the natural environment or an understanding of the impacts of the development. The developer's own evidence was that the landscape quality was "high" and that the effect of the wind farm upon the landscape character would be "major." The decision wrongly conflated the landscape impact of the proposal with its visual intrusion and failed properly to consider such impacts other than within the site boundary. There was no analysis in the decision letter of the evidence of the expert witnesses for the second respondent and the appellant. The Reporter had limited his consideration of visual amenity to the photographic material in the environmental statement. By conflating and confusing landscape and visual impacts he had misdirected himself and had failed to give proper consideration to the landscape impact. Moreover, by ignoring certain material, he had disabled himself from forming a judgment as to the acceptability of the proposal on the whole of the evidence put before him. He therefore erred in law in reaching his conclusions on this critical issue. In any assessment of the landscape and visual impacts of such a proposal, there would be an element of subjectivity; but the Reporter was bound to have regard to the evidence. From the decision letter it was impossible to say whether or not he had taken into account any of the technical landscape evidence, other than that of the second respondent, or what his conclusions on it had been. Although he set out the appellant's evidence in detail (paras 78-89), he failed to say how he had analysed it and what conclusions he drew from it. He had found that the intrusion was major (para 133), thereby accepting the substance of the appellant's factual case; but he said that it was not unacceptable. That was a subjective judgment. He failed to explain how he came to it.

[19 ] The Reporter had also reached a view (para 141) that the cumulative impact of the proposal and of other wind farms, existing or proposed, would not be so great as to justify the refusal of planning permission on the ground of conflict with criterion (vi); but he had also considered it possible that a different conclusion could be reached if other potential wind farms were taken into consideration. He had reached that conclusion as a result of considering certain specified material (paras 139-140), but he had not engaged in any analysis of it. In particular, he had failed to analyse the effect of the additional turbines, whether individually or collectively. There was therefore no proper analysis of the landscape impact or of the visual impact of other proposals. He therefore erred in law and acted perversely.

[20 ] Counsel submitted, finally, that the Reporter had erred in concluding (para 146) that the criteria of policy L/IMP2 were complied with. The decision letter contained no qualitative analysis of the extent of any loss of amenity that would be caused by the proposed development, notwithstanding the evidence on that issue to which he referred (paras 103-101). He had concluded nevertheless that residential amenity would be

"very much affected for a number of people living locally, especially those who are opposed to wind farms, or at least to this specific proposal (para 153)."

He concluded that it would be difficult to quantify the overall impact, with much depending on individual reactions to the turbines. While he recognised the importance of residential amenity to those involved, he did not find the overall impact on residential amenity to be sufficient to overcome the support for the scheme in the policy guidance expressed in NPPG 6 and PAN 45. To have attempted to balance an indeterminate quantification of loss of residential amenity against the political imperative for renewable energy developments was perverse. NPPG 6 supported the commitment to renewable energy through development plan policies and development control decisions unless, at the site level, there were serious adverse impacts that could not be mitigated. The Reporter had found that there would be a serious loss of residential amenity. That finding was inconsistent with his conclusion that the proposal would accord with the development plan. He had failed to explain how a finding that there would be a substantial loss of such amenity had been gauged against the requirements of criterion (v) of policy L/ED10. He had therefore erred in law and acted perversely. In effect, by holding that adverse impacts on residential amenity were outweighed by policy, he had swept aside residential amenity as a material consideration, whereas NPPG 6 (at paras 19, 22) made clear that renewable energy developments should not be permitted where they would have a significant long-term detrimental impact on the amenity of people living nearby and where the impact could not be mitigated satisfactorily.

[21 ] Taking all three criticisms together, counsel submitted that, while there was a legitimate area of subjective judgment in the making of this decision, it was not clear to the informed reader of the decision letter that the Reporter had considered all relevant evidence.

For the first respondents

[22 ] Counsel submitted that it was no part of the court's function to re-examine the Reporter's conclusions unless there was a demonstrable failure on his part to take account of a material fact, or some other perversity or irrationality. Matters of planning judgment were within the exclusive province of the Reporter. They involved an objective analysis of all of the material placed before him, a weighing up of that material and the making of a professional judgment upon it. These were matters for the decision-maker. If there was evidence on which the Reporter could base his conclusions, his conclusions could not be challenged in this court. He did not require to refer to each and every consideration that arose, nor to deal expressly with each and every argument put to him. It was sufficient that he set out adequate reasons to enable the informed reader to understand the basis on which he had reached his decision. He therefore had to deal only with the substantial issues. A challenge based upon the allegation that the Reporter had failed to assess, consider, analyse or weigh certain parts of the evidence was misplaced unless there had been a complete failure to take account of a material fact (South Bucks County Council v Porter (No 2) [2004] 1 WLR 1953). The appeal was in substance no more than a misguided argument that the Reporter should have reached a different conclusion on the facts.