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SKYE WINDFARM ACTION GROUP LIMITED

for

Judicial review of decisions of Highland Council

1^st February 2008

Skye Windfarm Action Group Limited, a company which seeks to prevent inappropriate development of onshore wind power stations, challenged the decision of the Highland Council on 16 May 2007 to grant planning permission to a wind farm at Edinbane, Skye by raising a petition for judicial review of the decision.

AMEC Project Investments Ltd ("AMEC") applied in 2001 to develop a wind farm at Edinbane comprising 28 turbines. As a result of concerns expressed by local people, ornithologists and environmentalists the project was amended on a number of occasions until in August 2006 AMEC proposed a development comprising 18 turbines. Separate applications for temporary planning permission for borrow pits to provide road stone for the on-site roads were also granted planning permission.

The wind farm application raised complex environmental and nature conservation issues. As the project was likely to have significant environmental effects AMEC required to produce an environmental statement in accordance with the Environmental Impact Assessment (Scotland) Regulations 1999. Among the environmental issues raised by objectors was the risk of a peat slide like that which occurred in 2003 at Derrybrien in the Republic of Ireland.

The principal nature conservation issue which caused concern was the effect of the wind farm on the golden eagle and other bird species. In December 2002 the Cuillins Special Protection Area ("SPA") was classified under the Birds Directive (EC Directive 79/409) for the conservation of the golden eagle. As a result the Highland Council had to assess the effect of proposed wind farm and a neighbouring development at Ben Aketil on the SPA. As a result of the environmental and nature conservation concerns and the amendments to the project, the environmental statement became a detailed and rather complex set of documents.

In 2006 the Highland Council approved a non-statutory document called "Highland Renewable Energy Strategy and Planning Guidelines" ("HRES") which was intended to provide guidance to the planning authority and developers in relation to renewable energy proposals in the Highlands. The Council required to consider the Guidelines when determining the planning application for the wind farm.

In challenging the grant of planning permission to the wind farm and the borrow pits, the Skye Windfarm Action Group Ltd submitted (i) that the environmental statement which AMEC had prepared was defective in its form and also in substance in its failure to consider alternatives and flooding risk, and in the initial exclusion from consideration of the effect of the borrow pits; (ii) that certain planning conditions in the permissions for the wind farm and the borrow pits were illegal; (iii) that the Council had acted illegally in considering the borrow pits applications separately from that for the wind farm; (iv) that they had failed to give proper consideration to HRES; and (v) that the Council had failed to conduct a proper assessment of the effect of the proposal on the Cuillins SPA.

The submissions did not succeed. They are discussed as follows: (i) in paras 43-81, (ii) in paras 82-98, (iii) in paras 99-108, (iv) in paras 109-116 and (v) in paras 117-154.

The Court dismissed the petition.

NOTE

This summary is provided to assist in understanding the Court's decision. It does not form part of the reasons for that decision. The full opinion of the Court is the only authoritative document.

Agents

J.D Campbell QC, McConnell; Morton Fraser for Skye Windfarm Action Group Limited

Tel 0141 249 6720 & 0131 247 1000

Mrs Wolffe: Biggart Baillie for Highland Council Tel 0141 228 8000 & 0131 226 5541

OUTER HOUSE, COURT OF SESSION

[2008] CSOH 19

P1828/07

OPINION OF LORD HODGE

in the petition of

SKYE WINDFARM ACTION GROUP LIMITED

Petitioners;

for

Judicial review of decisions of Highland Council dated 16 May 2007 to grant planning permission under the Town and Country Planning (Scotland) Act 1997 for a wind farm development and the extraction of aggregate at land south of Edinbane, Isle of Skye

________________

Petitioner: J.D Campbell QC, McConnell; Morton Fraser LLP

Respondents: Mrs Wolffe: Biggart Baillie LLP

1 February 2008

[1] The petitioners challenge the legality of decisions by the Highland Council ("the respondents") dated 16 May 2007 to grant planning permission for a wind farm development and the related extraction of minerals on land approximately two kilometres south of Edinbane and eight kilometres to the east of Dunvegan, Skye. They seek a court order reducing those decisions.

[2] The petitioners are a company limited by guarantee which was incorporated in 2002 with the object, among others, of preventing inappropriate development of onshore wind power stations. They have campaigned against wind farms in Skye.

The decisions under challenge

[3] On 16 May 2007 the respondents granted planning permission to three closely connected developments, comprising the wind farm development and two separate applications for borrow pits to extract aggregate for the construction of the site roads from land in close proximity to the site of the proposed wind farm. As narrated more fully below, in the initial application in February 2002 the developers sought planning permission for twenty-eight wind turbines and also for borrow pits but did not commit themselves to a specific number or location of the borrow pits. In December 2002 the respondents received two separate planning applications for the borrow pits. Thereafter, as a result of revisions to the wind farm proposal, the application which the respondents eventually considered in March 2007 was for a wind farm comprising eighteen turbines.

Title and interest

[4] In their written pleadings the respondents challenged the petitioners' interest to raise the judicial review proceedings. In the event Mrs Wolffe chose not to advance a submission of no interest to sue but reserved the right to raise the issue again should the case go further.

Factual background

(a) The planning status of the wind farm site and the Cuillins Special Protection Area

[5] The planning status of the site of the proposed wind farm has changed with the passage of time. It comprises open moorland which is used for grazing sheep. There are no statutory designations of the site in relation to natural heritage. Both the structure plan, which was approved in March 2001, and the local plan, which was adopted in March 1999, supported renewable energy schemes provided that among other considerations they were not significantly detrimental to their local environment and residential amenity. The site lies within an area which the respondents had identified as a primary research area for wind energy in their "Wind Energy: Regional Policy Guidelines" which they had adopted in March 1995, but that document was superseded by the 2001 structure plan which introduced criteria for the assessment of wind energy proposals.

[6] On 20 December 2002 land nearby was classified under EC Directive 79/409 on the conservation of wild birds ("the Birds Directive") as the Cuillins Special Protection Area ("SPA") for the conservation of the golden eagle. The SPA qualified under Article 4(1) of the Birds Directive because it regularly supported a breeding population of European importance of the golden eagle, an Annex 1 species under that Directive. The site supported eight pairs of golden eagles. They comprised one of the highest density populations in Great Britain.

[7] On 4 May 2006 the respondents approved a document called "Highland Renewable Energy Strategy and Planning Guidelines" ("HRES") as non-statutory supplementary planning guidance which was to be a material consideration in determining applications for planning permission for relevant developments. In HRES the respondents sought among other things to identify areas as preferred locations for national and major onshore wind energy developments and as possible areas in which such developments could be located. HRES provided that in all other areas there was to be a presumption against such development. The identification of the areas was the product of the respondents' Renewable Energy Resource Assessment model, which I discuss in more detail in paragraph 110 below. Under Policy E 7 of HRES the Edinbane site is in an area where there is a presumption against development. Policy E 7 states:

"Elsewhere in Highland there will be a presumption against export wind development. Any proposals for national and major projects will have to overcome a precautionary approach to planning approval. Any development would also need to show that there is no scope for alternative development within other preferred or possible development areas."

[8] The Edinbane site is in close proximity to and may overlap with a grid square identified as a possible area but the majority of the site is covered by the policy E 7 presumption.

(b) The application for the wind farm development

[9] AMEC Project Investments Limited ("AMEC") on 17 August 2001 sent the respondents a scoping report for an environmental statement in relation to the proposed wind farm of up to thirty turbines and asked them for their comments on the report. AMEC sent the scoping report to other bodies including Scottish Natural Heritage ("SNH"), Scottish Environment Protection Agency ("SEPA") and the Royal Society for the Protection of Birds ("RSPB"). On 24 September 2001 SNH wrote to AMEC advising them that further information should be included in the proposed environmental statement. SNH suggested that the number of turbines which the site could accommodate should be assessed in an iterative process in tandem with the assessment of environmental impacts. The information which SNH requested included details of site selection, cumulative impact and alternative sites considered. They also requested information on the areas used for hunting by golden eagles and other birds of prey and details of the proposed roads and borrow pits. On 11 October 2001 the respondents wrote to AMEC expressing broad agreement with SNH's position on the content of the proposed environmental statement. The respondents agreed that the assessment of the capacity of the site should be an iterative process and strongly endorsed SNH's suggestion that the environmental statement should examine among other things access routes and excavation. The respondents also called for an assessment of the cumulative impact of the proposed wind farm and another proposed development nearby at Ben Aketil.

[10] AMEC changed their development proposal over time in response to environmental concerns. The initial planning application which was lodged on 20 February 2002 was for 28 turbines, a substation compound, site roads and borrow pits. AMEC produced an initial environmental statement dated February 2002. This statement among other things listed several options for obtaining material for the construction of site roads, including on-site borrow pits, but did not commit AMEC to a particular source of material. The initial environmental statement also included the results of ornithological surveys of various bird species and a confidential annex relating to raptors which (in order to protect the birds) was intended for use only by SNH and the RSPB.

[11] The application met with a number of objections including one from the individuals who later incorporated the petitioners. SEPA did not object provided certain issues, including the sourcing of stone for site roads, were addressed and made the subject of planning conditions before the application was determined. However in November 2002 SEPA raised further concerns about a potential increase in flood risk resulting from the proposed development. They requested pre- and post- development runoff calculations and, if those calculations showed that it was required, the installation of a surface water drainage system to make the post-development runoff no greater than the pre-development runoff. SNH, while not opposing the principle of wind farm development in the area, objected to the proposal as then submitted and suggested how their objections could be overcome. SNH called for the removal of one of the turbines to reduce visual impact and for more data and assessment in the environmental statement on and of among other things site roads, borrow pits and the monitoring of birds. Local ornithologists, Ken Crane and Kate Nellist ("Crane and Nellist"), also submitted comments in which they expressed concern for raptors. They requested further monitoring and the phased development of the site by postponing the construction of certain turbines to allow golden eagles to adapt to the turbines. The RSPB also lodged a holding objection, calling for the provision of more information about various bird species including raptors.

[12] The initial environmental statement was superseded by an amended environmental statement dated June 2002. In this statement AMEC proposed to install twenty-seven turbines on the site. AMEC also stated that the sourcing of stone for the site roads would be the subject of a separate planning application. After a site visit, on 29 November 2002 the respondents' Planning, Development, Europe and Tourism Committee ("the planning committee") resolved to grant permission to the wind farm development of twenty-seven turbines, subject to planning conditions and the prior conclusion of a section 75 agreement. Among the proposed conditions was a condition which required the developer before commencing the development to submit, and obtain the approval of the planning authority of, detailed proposals for sourcing aggregate.

[13] On 23 December 2002 AMEC lodged two planning applications for permission to operate two temporary borrow pits within existing commercial forestry in the vicinity of the proposed wind farm site to provide the necessary aggregate for the site roads. With the applications AMEC also lodged a supporting statement which explained their choice of location of the borrow pits and their proposed methods of operation. Before lodging the applications AMEC had applied to the respondents on 4 December 2002 for a screening opinion whether the borrow pits proposal was likely to have significant environmental effects and therefore whether an environmental impact assessment would be required. On 7 January 2003 the respondents issued a screening opinion stating that they had decided that the proposal was unlikely to have significant environmental effects and that an environmental impact assessment would not be required.

[14] The petitioners and others objected to the borrow pits proposal arguing among other things that the sourcing of the road stone was an essential part of the wind farm project and that it was unlawful to consider its environmental impacts separately from the impacts of the proposed wind farm. SEPA did not object in principle but requested amended drainage details. SNH did not object and expressed the view that the borrow pits were unlikely to threaten natural heritage interests. On 14 April 2003 the respondents' Skye and Lochalsh Area Planning Committee agreed to approve the grant of temporary planning permission for the borrow pits subject to conditions and the prior conclusion of a section 75 agreement. The permissions were also to be subject to the prior issue of a permission for the Edinbane wind farm. The committee also decided that the permissions should be subject to additional conditions covering the views of the respondents' environmental health department and SNH. The former consultee had yet to respond to an amended submission and the latter had requested a satisfactory restoration plan.

[15] Several events caused AMEC to carry out further work in relation to their proposed development. In October 2003 a major peat slide occurred at a wind farm site at Derrybrien in the Republic of Ireland which gave rise to concerns that the construction of a wind farm at Edinbane, which comprised predominantly blanket mire, might create the risk of a similar occurrence. In response the respondents entered into discussions with AMEC and the Health and Safety Executive and the latter carried out a review of information on peat instability. Information which was supplied by the applicants for permission to develop an adjoining wind farm at Ben Aketil gave rise to further concerns about the cumulative impact of the developments on the Cuillins SPA. In June 2004 the petitioners complained to the European Commission that the proposed grant of planning permission to the Edinbane wind farm would breach European law, because among other things there had been no assessment of its impact on the Cuillins SPA.

[16] On 12 July 2004 SNH wrote to the respondents expressing concern about the cumulative impact of the Edinbane and Ben Atketil proposals on the golden eagle and their potential effects on the integrity of the Cuillins SPA. SNH requested that there be a study of the effect of individual turbines within the proposed layout at Edinbane on sub-adult eagle mortality with a view to removing or repositioning turbines which most interfered with the monitored flight-lines of the golden eagle with the aim thereby substantially to reduce the levels of predicted sub-adult mortality. SNH also requested that AMEC devise monitoring and mitigation measures further to reduce that mortality. In response AMEC commissioned and sent to the respondents a further report by E.S. Lawrence of Lawrence Ecological Consultants ("LEC") assessing the flight activity of golden eagles and the effect of the proposed wind farm. SNH commented in detail on the LEC assessment and carried out their own assessment of the collision risk and the likely effect of mortality on the golden eagle population in Skye. They modelled estimates of collision fatalities which showed a range of between 0.27 and 0.6 golden eagle deaths per year. SNH concluded that it was unlikely that the wind farm would cause the population of golden eagles in Skye to decline but proposed that the number of turbines be reduced. At the respondents' request, AMEC instructed the collection of further data during 2005 to assess whether the risk of collision mortality at the Edinbane site would be below SNH's threshold of 0.6 golden eagles per year.

[17] The respondents also instructed Professor Rowan Robinson to provide them with a legal opinion on their duties in the light of the concerns expressed about the possible effects of the development on the golden eagle population and the lack of assessment of the effect of construction of the development on flooding and ground stability and the further information which they had received on those topics. In an opinion dated April 2005 Professor Rowan Robinson advised among other things that, notwithstanding their decision of 29 November 2002, there was as yet no planning permission. The Respondents should therefore consider all relevant information, including updated information on bird strikes, the integrity of the SPA, flooding and ground stability, which was available to them when deciding whether to grant planning permission for the Edinbane wind farm. He also advised that the Environmental Impact Assessment (Scotland) Regulations 1999 ("the 1999 Regulations") required the respondents to obtain, publicise and consider the environmental information needed to assess the likely significant impacts of a development before deciding whether to grant planning permission.

[18] At a meeting on 25 May 2005 the respondents' planning committee discussed a report from the director of planning and development explaining the events which had occurred since 2002, including the Derrybrien peat slide, the involvement of the European Commission in proceedings against the Irish government, the concerns expressed by SNH and RSPB and the new information revealed in the eagle studies. The director of planning and development recommended that the respondents would require to decide the Edinbane application on its merits in the light of the new information and any further relevant information available at the time of their decision. The planning committee noted the position. The respondents asked AMEC to provide further information on peat slides and further studies on raptor activity. On 2 September 2005 the planning committee approved the Ben Aketil planning application subject to conditions and the conclusion of a section 75 agreement. The Ben Aketil permission was issued on 7 September 2006.

[19] In April 2006 AMEC submitted an amended proposal for the Edinbane wind farm reducing the number of turbines from twenty-seven to nineteen and reducing the size of the turbines. With the proposal in the core document they also submitted (a) amended visualisations, (b) a peat slide assessment by Mott MacDonald and (c) further eagle studies which Natural Research (Projects) Limited had carried out. In the core document and the commentary on the eagle studies AMEC explained that they had altered the layout and reduced the number of turbines in their proposal to bring the modelled rate of golden eagle strikes to within SNH's threshold of 0.6 per year. The core document also contained under the heading "Environmental Impact Assessment" a brief summary of the environmental impacts of the amended proposal including summaries of the peat slide assessment and the raptor studies.

[20] In July 2006 the petitioners lodged with the respondents further detailed objections to the Edinbane wind farm proposal to supplement their objections lodged in 2002. In those objections the petitioners commented on AMEC's April 2006 submission.

[21] In August 2006 AMEC amended their proposal by reducing the number of turbines to eighteen ("the second amended proposal"). The reductions in the numbers of turbines in the April 2006 submission and in the August 2006 submission were concentrated on parts of the proposed site where the greatest number of eagle flights had been observed and were principally in order to reduce predicted eagle mortality. The August 2006 submission was a very substantial document. It comprised a core document summarising the proposal and the supplementary environmental information which was contained in fourteen appendices. Those appendices covered (a) supplementary survey work to assess the risk of peat slide, (b) an assessment of the risk to raptors from the second amended proposal, (c) a landscape and visual assessment, (d) a noise assessment, (e) an assessment of the impact of the development on tourism, (e) an assessment of the likely impact of the development on otters, (f) an assessment of the likely impact of the development on bats, (g) an assessment of flood risk and a survey of private water supplies and (h) an assessment of the cumulative impact of the wind farm and the borrow pits (Appendices H-N).

[22] In September 2006 the petitioners' legal advisers lodged with the respondents further objections which among other things commented on AMEC's August 2006 submission.

[23] By letter dated 2 October 2006 SNH maintained their objection to the proposed Edinbane wind farm as then proposed on the basis that they could not assess fully the adverse impacts of the development on the Cuillins SPA on the information provided. SNH stated that they would review their objection if specified information were provided, including an assessment of the cumulative impact of the Edinbane and Ben Aketil wind farms on the Skye golden eagle population using up to date population data and calculations of collision risk using a specified model of turbine. SNH expressed concern about the quality of the data assembled by LEC and requested that the revised assessment incorporate the data assembled from the observations by Crane and Nellist in 2002. SNH also advised that certain conditions should be imposed in any planning permission and made other recommendations. Mr Mudie, the respondents' development management team leader, in an e-mail to AMEC dated 4 October 2006 pointed out that the environmental statement had become a complex multi-document submission and advised AMEC to adopt a clean slate approach by withdrawing their application and submitting a new one. Faced with SNH's objection, the director of planning and development produced a report for a meeting of the planning committee on 27 October 2006 recommending refusal of the application on the basis that there had not been an appropriate assessment of the impact of the development on the Cuillins SPA. On 26 October 2006 Mr Mudie again requested AMEC to withdraw their planning application. In the event, the meeting of the planning committee was cancelled because of severe weather.

[24] In January 2007 AMEC submitted further environmental information in support of the second amended proposal in response to SNH's concerns. The document contained a report by the consultant ornithologist, Dr Paul Haworth, which reviewed the available data on golden eagles in Skye and carried out an assessment of the cumulative impact of the Ben Aketil and Edinbane wind farms on the golden eagle population in Skye and more widely. Dr Haworth concluded (a) that there was sufficient habitat for the sub-adult eagles on Skye if displaced from the wind farm sites, (b) that the second amended proposal would involve a risk of causing less than 0.6 golden eagle deaths per year and in combination with Ben Aketil up to 0.91 deaths per year and (c) that adverse impacts on the Cuillins golden eagle SPA were not predicted if the mortality of sub-adult eagles was below one per year.

[25] Objectors, including the petitioners, responded to AMEC's further environmental information by lodging supplementary objections. The ornithologists, Crane and Nellist, renewed their criticisms of the collision risk modelling and challenged the view that there was any certainty that the golden eagle population of Skye was currently secure. Mr R. L. MacMillan, an ornithologist, also repeated his concerns about validity of the data and the collision risk threshold which SNH had adopted for golden eagles and expressed concerns about other raptors. He pointed out that the collision risk from the combined Ben Aketil and Edinbane wind farms at 0.9 per year would be the highest of any wind farm site in Scotland. The petitioners by letter dated 3 February 2007 lodged a further objection which criticised the proposal on a number of grounds. They challenged AMEC's peat slide assessment as inadequate; they argued that the development was contrary to HRES, that AMEC had failed to assess the impact of the development on tourism in Edinbane, that noise nuisance had not been fully assessed and that AMEC's January 2007 further environmental information was inadequate to meet the requirements of European law on nature conservation. RSPB also wrote to maintain its objection due to what it said was the level of uncertainty regarding the potential impact on golden eagles and other raptor species.

[26] SNH by letter dated 16 February 2007 provided their advice to the respondents in the light of the further environmental information. They concluded that the additional work on golden eagles had adequately addressed SNH's earlier concerns with the environmental statement in that regard. They stated that the additional information had

"demonstrated that there is sufficient sub-adult habitat available if displacement occurs. If the golden eagles continue to use the site, the expected increase in sub-adult mortality which would arise from collisions with the turbines is not considered to be sufficient to compromise the Skye or the Cuillins SPA golden eagle populations. The Environmental Statement and SNH's appraisal of the ES demonstrate that there will be no adverse effect on the integrity of the Cuillins SPA."

SNH therefore withdrew their earlier holding objection, provided that planning conditions were imposed to control the type of turbine used in the wind farm.

[27] The respondents' director of planning and development in a report dated 27 February 2007 recommended that planning permission be granted subject to a section 75 agreement and conditions. The respondents' planning committee considered the application at a meeting on 9 March 2007 and resolved to approve the application in accordance with his recommendation. The report and the committee's consideration of it at the 9 March meeting are discussed in more detail below in the discussion of the particular challenges raised in this judicial review. AMEC, the respondents and the Scottish Ministers then entered into a section 75 agreement, and the respondents issued separate planning permissions on 16 May 2007 for the Edinbane wind farm and the two borrow pits. The decisions to grant those permissions are challenged in this judicial review.

(c) Other relevant facts

[28] In their various grounds of challenge the petitioners addressed the court on detailed factual matters which were specific to individual grounds. Rather than give an aggregated account of all the relevant facts which would be either too dense or too extensive, I set out the more detailed facts in my discussion of the individual challenges and refer back to the factual background above.

Discussion of grounds of challenge
[29] The petitioners advanced grounds of challenge under five headings and included several grounds of challenge under two of those headings. I consider each of the grounds under those five headings. It is important, before I do so, to recall the proper scope of the court's jurisdiction in applications for judicial review as some of the petitioners' submissions assumed that the court could accept as fact assertions which were contested by the respondents and which were not established by proof. For this purpose it is sufficient for me to refer to the opinion of Lord Nimmo Smith in World Wildlife Fund v The Scottish Ministers [1999] 1 CMLR 1021 in which at paragraph 6 he stated:

"At the outset I must emphasise that I am not concerned with the merits of any of these decisions. An important point, which was emphasised by the First Division in....West v Secretary of State for Scotland is that judicial review is available, not to provide machinery for an appeal, but to ensure that the decision-maker to whom a jurisdiction, power or authority has been delegated or entrusted by statute, agreement or any other instrument, does not exceed or abuse his powers or fail to perform the duty which has been delegated or entrusted to him. It is not competent for the Court to review the act or decision on its merits, nor may it substitute its own opinion for that of the person or body to whom the matter has been delegated or entrusted."

(i) The Environmental Impact Assessment
[30] The petitioners advanced four arguments under this heading. Before considering each of the arguments, it may be useful in order to set them in context to summarise the relevant law on environmental impact assessments in view of the many authorities to which I was referred.

[31] In the course of their submissions counsel referred to the following cases: Bund Naturschutz in Bayern v Freistaat Bayern (Case C-396/92) [1994] ECR I-3717, Aannemersbedrijf P.K.Kraaijeveld BV v Gedeputeerde Staten van Zuid-Holland (Case C-72/95) [1996] ECR I-5403, The Queen on the application of Wells v Secretary of State for Transport, Local Government and the Regions (Case C-201/02) [2004] ECR I-723, R v Swale Borough Council and Medway Ports Authority [1991] 1 PLR 6, R v Rochdale Metropolitan Council ex p Tew [2000] Env LR 1, R v North Yorkshire County Council ex p Brown [2000] 1 AC 452, R v Rochdale Metropolitan Council ex p Milne [2001] Env LR 22 (and the application for leave to appeal that decision which the Court of Appeal refused), R v Cornwall County Council ex p Hardy [2001] Env LR 25, British Telecommunications plc v Gloucester City Council [2001] EWHC Admin 1001, Berkeley v Secretary of State for the Environment [2001] 2 AC 603, R (on the application of Barker) v London Borough of Bromley [2002] Env LR 631 (CA), R (on the application of Lebus) v South Cambridgeshire DC [2003] 2 P & CR 5, Smith v Secretary of State for the Environment, Transport and the Regions [2003] Env LR 32 (CA), Gillespie v First Secretary of State [2003] Env LR 30, BAA plc v Secretary of State for Transport, Local Government and the Regions [2003] JPL 610, R (on the application of Burkett) v Hammersmith and Fulham London Borough Council [2004] Env LR 3, and R (on the application of Jones) v Mansfield Borough Council [2004] Env LR 21. In relation to an argument of substantial compliance Mrs Wolffe referred in addition to Commission v Germany (Case C-431/92) [1995] ECR I-2189, R (on the application of Prokopp) v London Underground Ltd [2004] Env LR 8, and Belize Alliance of Conservation Non-Governmental Organisations v The Department of the Environment [2004] Env LR 38 (PC).

[32] Mr Campbell referred to articles 174 and 175 of the European Community Treaty, Council Directives 85/337/EEC and 97/11/EEC on environmental assessments and 2003/35/EC on public participation. He accepted however that the European directives had been correctly transposed into domestic law by the Environmental Impact Assessment (Scotland) Regulations 1999 ("the 1999 Regulations"). It is necessary therefore to have regard to the European legislation only to assist the interpretation of the 1999 Regulations. In that context it may be helpful to quote the sixth recital of Council Directive 85/337/EEC which states:

"Whereas development consent for public and private projects which are likely to have significant effects on the environment should be granted only after prior assessment of the likely significant environmental effects of these projects have been carried out; whereas this assessment must be conducted on the basis of the appropriate information supplied by the developer, which may be supplemented by the authorities and by the people who may be concerned by the project in question".

[33] The environmental impact assessment ("EIA") is a procedure which was introduced to implement Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment. That Directive was subsequently amended by Council Directive 97/11/EC to improve the assessment procedure and by Directive 2003/35/EC of the European Parliament and of the Council to give effect to the obligations undertaken in the Århus Convention in relation to public participation in decision-making on environmental matters.

[34] In terms of article 4 and Annex II of Directive 85/337/EEC (as amended) wind farms are one of the categories of projects which may or may not require an EIA, depending upon whether the Member State considers that they are likely to have significant effects on the environment. This is reflected in the 1999 Regulations which define "EIA development" as being either a Schedule 1 development or a Schedule 2 development. Schedule 1 describes developments which must undergo an EIA. Schedule 2 describes developments which are to undergo an EIA if they are likely to have significant effects on the environment by virtue of factors such as their nature, size or location. Wind farms fall within Schedule 2.

[35] Where a development is, or is connected with, a Schedule 2 development, the developer under Regulation 5 can request the planning authority for a screening opinion which is a written statement of opinion as to whether a development is EIA development. This involves the planning authority in an assessment of whether the development is likely to have significant effects on the environment having regard to the criteria set out in Schedule 3. Case law in England and Wales has provided further guidance. The Regulation contemplates a relatively speedy decision on the basis of relatively limited information (Jones, para 49). In making that assessment the planning authority can take account of the use of well-established and tested remedial measures which can be required by planning condition (Gillespie, paras 36-38, 46 and 49, PPG 11 Ltd, para 52). But where it is clear that a development is likely to have significant effects on the environment, those effects and the efficacy of remedial measures should normally be the subject of an EIA because the 1999 Regulations require that other parties, including the public, have the opportunity to contribute to the environmental information which the planning authority should consider in reaching its decision (see citations from Gillespie and PPG 11 Ltd above and also Burkett at para 8).

[36] Where a development falling within Schedule 2 is assessed as being likely to have significant environmental effects and is thus EIA development, Regulation 3(2) prohibits the planning authority from granting planning permission unless they have first taken into consideration "the environmental information". It is in the Regulation 3(2) prohibition and in the definition of "environmental information" in Regulation 2(1) that the 1999 Regulations create the mechanism by which the planning authority has to consider the information which the Directives have laid down as necessary for the assessment of environmental impact before the authority grants planning permission for the development.

[37] In the United Kingdom planning systems where a developer seeks outline planning permission for a development which is likely to have significant environmental effects, the planning authority must have sufficient information on the development, its impact and the mitigation measures to consider the significant environmental effects of the development at the stage of determination of the outline application which establishes the principle of the development. See Alexander Russell Ltd v Secretary of State for Scotland 1984 SLT 81 and Smith (paragraphs 25-28). Consideration of significant environmental effects and mitigation measures at reserved matters stage would avoid the statutory requirements for consultation and publicity which provide what Lord Hoffmann in Berkeley described as the inclusive and democratic procedure required by the Directive. As a result the 1999 Regulations may make it difficult for a developer to obtain outline planning permission in some cases without committing himself to detailed design, as the planning authority cannot defer its decision on any matter that is likely to have a significant environmental effect. See, for example, Tew and Milne, and Smith (at paras 25-27).

[38] The environmental information as defined in Regulation 3(2) means (a) the environmental statement which the developer prepares and submits to the planning authority, (b) any further information which the planning authority in writing requires the developer to provide under Regulation 19 and any other information which becomes part of the environmental statement, (c) any representations made by the specified consultation bodies, such as SNH and SEPA, which have environmental responsibilities, and (d) any representations duly made by any other person about the environmental effects of the development. The inclusion of the latter representations within the definition of environmental information is designed to enable the public to contribute to the environmental assessment in accordance with the Århus Convention. Public contribution to the assessment is facilitiated by the placing on the register of, among other things, copies of the environmental statement, the further information required under Regulation 19 and any other information which comes to form part of the environmental statement (Regulation 20), and the requirement that the authority make such documentation available for inspection and publicise that availability (Regulations 38 and 37). The petitioners took no issue in this case with the availability of the information for inspection in accordance with the Regulations, although as mentioned in paragraph 70 below, they challenged the manner in which environmental information in relation to the borrow pits came into the public domain.

[39] The developer can ask the planning authority to give a written scoping opinion which specifies the information to be provided in the environmental statement (Regulation 10). The authority provides the scoping opinion after consulting the specified consultation bodies. Screening opinions and scoping opinions also are available for inspection on the register.

[40] Schedule 4 to the 1999 Regulations sets out the information to be included in the environmental statement. That statement must include at least the matters listed in Part 2 of Schedule 4. Part 2 requires the following:

"1. A description of the development comprising information on the site, design and size of the development.

2. A description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects.

3. The data required to identify and assess the main effects which the development is likely to have on the environment.

4. An outline of the main alternatives studied by the applicant or appellant and an indication of the main reasons for his choice, taking account of the environmental effects.

5. A non-technical summary of the information provided under paragraphs 1 to 4 of this Part."

Part 1 of the Schedule lists among other things more detailed descriptions of the development, of the aspects of the environment likely to be significantly affected by the development, of the significant effects of the development on the environment including cumulative effects and of mitigation measures. There is also included in the list a requirement for an outline of the main alternatives which is identical in its wording to paragraph 4 of Part 2 set out above. There is a similar requirement for a non-technical summary as in Part 2. The need to provide the information listed in Part 1 of the Schedule is not absolute. Regulation 2(1) in its definition of "environmental statement" provides that the statement includes such of the information referred to in Part 1 of the Schedule as (a) is reasonably required to assess the environmental effects of the development and (b) the applicant can reasonably be required to compile, having regard in particular to current knowledge and methods of assessment.

[41] Once the planning authority has received the developer's environmental statement, including any further information which it requires under Regulation 19 or which the developer submits, it is a matter for the judgement of the planning authority whether the information provided gives it sufficient knowledge of the likely significant effects of the development on the environment. The 1999 Regulations do not require the planning authority to have available to it information on every detailed environmental effect. Environmental effects which are not significant can be dealt with later as reserved matters or assessed in compliance with a planning condition (Smith at para 28). What is required from the planning authority is that it makes its planning decision only after a proper assessment of what the significant environmental effects of the development are likely to be. See the sixth recital of the Directive (paragraph 32 above). The judgement whether the environmental information is sufficient for that assessment will be one of fact and degree in each case. That judgement by the planning authority is subject to review by the courts on the normal grounds of judicial review (Jones at paras 17 and 60, and Burkett at para 8). In several cases English judges refer to review by the courts on normal Wednesbury principles. I interpret that as a reference to all the grounds of judicial review of a discretionary decision and not just to irrationality or Wednesbury unreasonableness. See the judgment of Lord Greene in Wednesbury at pp.228-229 in which he listed the various grounds of judicial review and also R v Secretary of State for the Environment ex p Nottinghamshire County Council [1986] AC 240, in which Lord Scarman at p.249 explained that "normal Wednesbury principles" was "shorthand" for Lord Greene's classical review of the circumstances in which the court will intervene to quash as illegal an exercise of administrative discretion.

[42] The case law mentioned above gives useful guidance in relation to the quality of the information on environmental effects which the planning authority must have both in making a screening opinion and before it determines a planning application for development which is EIA development. It emphasises the procedures which must be complied with to ensure public participation in and contribution to the assembling of the relevant environmental information. It confirms the limits of the court's jurisdiction to review decisions of the planning authority. These points are relevant to consideration of the petitioners' arguments in relation to the environmental impact assessment which were as follows.

The form of the Environmental Statement

[43] First, the petitioners submitted that the respondents acted illegally in accepting from AMEC environmental information on a piecemeal basis. Mr Campbell submitted that the respondents were under a legal obligation not to determine the planning applications until they had received a comprehensive and comprehensible body of work which accurately described the environmental effects of the development in a manner which was reasonably digestible by members of the public. Further he submitted initially that this information should be available at the start of the process of assessment of the environmental information. He founded on Berkeley in which Lord Hoffmann stated at p.617:

"The point about the environmental statement contemplated by the Directive is that it constitutes a single and accessible compilation, produced by the applicant at the very start of the application process, of the relevant environmental information and the summary in non-technical language. It is true that article 6.3 gives Member States a discretion as to the places where the information can be consulted, the way in which the public may be informed and the manner in which the public is to be consulted. But I do not think it allows Member States to treat a disparate collection of documents produced by parties other than the developer and traceable only by a person with a good deal of energy and persistence as satisfying the requirement to make available to the public the Annex III information which should have been provided by the developer".

[44] Mr Campbell submitted that the respondents had acted illegally in allowing AMEC to submit a multiplicity of documents over time and by not insisting on a non-technical summary of the content of the aggregate of all of the documents. During discussion he amended his formulation of the submission and argued that the 1999 Regulations required an environmental statement to comprise a single and accessible compilation of documents produced by the applicant in the course of the application process.

[45] It is important to identify what are the documents which comprised the environmental statement. In summary, as a result of the environmental concerns which were raised and the changes which AMEC made to their proposal to address those issues, the initial environmental statement was superseded by the amended environmental statement of June 2002 and that in turn was supplemented by further documents. The respondents' position was that the environmental statement, which was available to the respondents and the public when the decision to grant the impugned planning permissions was made in March 2007, comprised (a) the amended statement of June 2002 (referred to in paragraph 12 above), (b) the further information dated April 2006 (referred to in paragraph 19 above), (c) the second amended proposal in August 2006 (referred to in paragraph 21 above) and (d) the further information of January 2007 (referred to in paragraph 24 above). I proceed on that basis which was not contested.

[46] The petitioners founded on the advice of the Scottish Executive in PAN 58, which (at paragraphs 72-79) included their advice on the presentation of the environmental statement. In paragraph 73 the advice was:

"The main report should give an account of all the environmental assessment work from project inception through to mitigation measures and monitoring arrangements. It should read as a single document and not merely be a compendium of separate reports on each environmental topic or impact. To help the reader, lengthy or detailed supporting studies should be confined to appendices, and accurately summarised in the main report and non-technical summary. The main body of the statement can thus be kept to manageable proportions."

[47] Paragraph 74 spoke of a "concise, comprehensive and objective report". There is no doubt that the environmental statement did not achieve that conciseness. Paragraph 78 discussed the non-technical summary, stating that its purpose was to ensure that the key points of the environmental statement could be more readily understood by non-experts and decision-makers.

[48] Mr Campbell also referred to correspondence between the respondents and AMEC in early October 2006 in which the respondents' development control team leader, Mr Mudie, recommended that AMEC should withdraw the application and lodge a fresh application because the environmental statement had become a complex multi-document submission which was then to be complicated by a further ornithological study to be undertaken. In so advising Mr Mudie reflected the view of SNH which in their letter of 2 October 2006 to the respondents had advised that the environmental statement had lost its cohesion and lacked transparency in a number of places, particularly the ornithological aspects. However, on receipt of the further information of January 2007, SNH changed their view and in their letter dated 16 February 2007 stated:

"We noted in our October 2006 letter that the Environmental Statement had lost its cohesion and lacked transparency, particularly in relation to the ornithological aspects. SNH are content that the recent golden eagle appraisal is transparent and we therefore feel able to reach a conclusion on this critical aspect of the case. The issue of cohesion and accessibility has not been addressed and while the approach taken by the developer is clearly not best practice and is likely to present difficulties to those not familiar with this case, there is sufficient information to inform SNH's response."

[49] While it is clear that the prolonged way in which the project changed and the environmental assessment expanded over time fell far short of the ideal, I am satisfied that the petitioner's challenge on this ground fails. It is important to see Lord Hoffmann's comments in Berkeley in their context. The "paper chase" which he described in that case would have required an interested member of the public to look at the applicant's statement of case for a public inquiry, and to cross-refer that to the planning officer's report to the planning sub-committee, and its background papers including letters from interested environmental bodies, and also the proofs of evidence made available at the inquiry in order to discover the necessary environmental assessment. In this case by contrast the four documents emanated from AMEC and were each made available to the public in accordance with the 1999 Regulations.

[50] In my opinion there is no legal requirement that all the environmental information which an applicant submits and which, by virtue of the definition of environmental statement in regulation 2(1), forms part of that statement should be in one document. Berkeley does not support the contrary view. The original environmental statement must emanate from the applicant and must attempt a sufficiently comprehensive assessment of the environmental effects of the development to allow the planning authority to make a judgement on the significant environmental effects of the development. But the Regulations envisage that the planning authority may require further information under Regulation 19 and that the applicant may submit further information, both of which become part of the environmental statement. The assessment may therefore develop over time in what Newman J described in Burkett as a "dynamic process".

[51] In this case the four documents to which I referred in paragraph 45 above each contained non-technical summaries or their equivalents. The amended statement of June 2002 (paragraph 12 above) included a seven-page executive summary which described the development and construction programme and listed the environmental effects, including terrestrial ecology, ornithology, landscape and visual assessment, archaeology, air traffic and radio communications, people and safety, noise, and tourism. The further information of April 2006 (paragraph 19 above), which concentrated on further ornithological studies and a peat slide risk assessment as well as considering the landscape and visual effects of the amended proposal for the reduced number of turbines, contained a four-page core document which summarised the contents of the three appendices. The appendices on the peat slide risk and the eagle studies also contained executive summaries. The additional supplementary environmental information which AMEC submitted with their second amended proposal (paragraph 21 above) amounted to several hundreds of pages. But again it contained a twenty-nine page document which on nineteen pages summarised the findings of the assessments and surveys contained in the fourteen appendices. Some of the assessments in the appendices were complex and lengthy but by use of the indices or otherwise it was relatively easy to find the conclusions which the assessors reached. Finally, the further environmental information which AMEC submitted in January 2007 (paragraph 24 above) contained a two-page summary of the results of Dr Haworth's eagle study which itself contained a one-page executive summary.

[52] In my opinion the material which AMEC produced would have been easier to assimilate if it had been aggregated, edited and re-presented in one document. Nonetheless the documents comprising the environmental statement were available for inspection by the public. They were presented in a way which allowed an interested member of the public not only to ascertain without much difficulty the conclusions which AMEC and its professional advisers had reached on the various environmental effects but also to study in more detail the methods used to reach those conclusions. While the documents which comprised AMEC's environmental statement fell far short of the ideal statement, I am satisfied that the respondents did not act illegally in accepting them as an environmental statement in this case.

[53] As I have reached the view that the environmental statement did not need to be contained within one document and that AMEC complied with the requirements of the 1999 Regulations in relation to its environmental statement, I do not need to consider Mrs Wolffe's alternative submission that there was in any event substantial compliance with the aims of the Regulations and the Directives. It is sufficient to record that in support of that submission she referred me to Commission v Germany, Berkeley, Prokopp and Belize Alliance and that, had it been necessary to decide the question, I would have concluded that there was substantial compliance.

The failure to consider alternatives

[54] Secondly, the petitioners submitted that the respondents had acted illegally in failing to take into account "alternative" sites for the wind farm which AMEC proposed at Edinbane. As mentioned in paragraph 40 above, Regulation 2(1) of the 1999 Regulations requires that an environmental statement contain at least the information listed in Part 2 of Schedule 4. Paragraph 4 of Part 2 refers to "an outline of the main alternatives studied by the applicant or appellant and an indication of the main reasons for his choice, taking account of the environmental effects". Mr Campbell submitted that AMEC had failed to include that essential information. He also submitted (a) that having regard to the proximity of the Cuillins SPA the respondents should have required AMEC to examine alternative sites in their environmental statement under Part 1 of Schedule 4 to the 1999 Regulations and (b) that whether there was an alterative site was a relevant planning consideration which the respondents failed to consider.

[55] The respondents' submission was that 1999 Regulations required a developer who had in fact considered alternative projects to provide details of those alternatives in the environmental statement, but they did not require him to study alternatives. In this case AMEC had not looked at alternative sites and had explained their position in the additional supplementary information which they submitted with their second amended proposal in August 2006 (paragraph 21 above). On page 26 of that document AMEC explained that there were no alternative developments open to them in the Highlands which they could take forward timeously to secure grid connection before 2016 because of constraints in the electricity transmission system. AMEC had negotiated a grid connection contract with a connection date of 2008 and could not gain support from landowners and crofters to develop another site and take an application through the EIA and planning process in time to meet that date.

[56] I am satisfied from the wording of paragraph 4 of Part 2 of Schedule 4 that what is required in any environmental statement is an outline of any alternatives which an applicant has in fact studied and the reasons for his choice where he has in fact made a choice. That is the ordinary and natural meaning of the words used. The same words are used in the Directive ("qui ont été examinées"). Accordingly AMEC have not breached the requirements of Part 2 of Schedule 4 to the 1999 Regulations.

[57] The same words are used in Part 1 of Schedule 4 and an issue arises as to whether they are to be given the same meaning in that context. In recital 11 of Directive 97/11/EC it is stated:

"Whereas it is appropriate to introduce a procedure in order to enable the developer to obtain an opinion from the competent authorities on the content and extent of the information to be elaborated and supplied for the assessment; whereas Member States, in the framework of this procedure, may require the developer to provide, inter alia, alternatives for the projects for which it intends to submit an application".

[58] Thereafter the Directive provides a re-worded Article 5(1) and a new Annex IV of Directive 85/337/EEC which requires a Member State to adopt necessary measures to ensure that the developer supplies the Annex IV information when the Member State considers the information to be relevant and that the developer could reasonably be required to supply the information. Annex IV in paragraph 2 contains a provision in substantially the same terms as paragraph 4 of Part 2 of Schedule 4 to the 1999 Regulations quoted above. The amended Article 5(3) contains an identical provision as the minimum information which a developer should provide in his environmental impact assessment.

[59] A requirement that a developer disclose alternatives which he has considered does not in itself meet the policy aim in recital 11 that a competent authority should be empowered to require a developer to provide alternatives. Nor does it make sense to include in the Directive and in the 1999 Regulations a requirement for the same information to be provided both as part of the minimum information to be included in an environmental statement (Article 5(3) of the Directive and paragraph 4 of Part 2 of Schedule 4 to the 1999 Regulations) and also as an optional item so far as it is relevant and may reasonably be required (Article 5(1) and Annex IV of the Directive and paragraph 2 of Part 1 of Schedule 4 to the 1999 Regulations). It appears to me that the words where the provision is optional are designed to deal with a different context from that of the same words where the provision is compulsory: I consider that the 1999 Regulations in Regulations 10 and 11 (scoping opinions) and Regulation 19 (the power to require a developer to provide further information) empower a planning authority to require a developer to look at alternative projects or alternative sites in an appropriate case. In many cases which the 1999 Regulations cover it may not be appropriate or sensible to impose on a developer an obligation to study alternatives, particularly if a developer does not have a realistic opportunity to develop another site. But where a planning authority requires a developer to look at alternatives, paragraph 2 of Part 1 of Schedule 4 enables it to request that the results of that study are included in the environmental statement.

[60] If that is correct, it is necessary to consider the merits of the petitioners' challenge to the respondents' scoping decision in relation to the environmental statement and their decision to be satisfied by the environmental statement which emerged by early 2007.

[61] As narrated in paragraph 9 above, AMEC asked SNH to comment on their scoping report of 17 August 2001 and SNH by letter dated 24 September 2001pointed out that one of the matters which AMEC had missed out of the proposed issues for consideration in the environmental statement was alternative sites. By letter dated 11 October 2001 Mr Turner, the respondents' area development control manager, stated that he was broadly in agreement with SNH's comments and that he strongly endorsed the comments that the environmental statement should examine access routes, excavation, power lines and any buildings. In the event, while the amended environmental statement of June 2002 (paragraph 12 above) discussed the process of site selection, AMEC's only comment on alternative sites was what they said in the August 2006 document and which is summarised in paragraph [55] above.

[62] Was that sufficient? It is clear from the English cases to which I have referred in paragraph 41 above that in the first instance it is for the planning authority to decide whether an environmental statement is sufficient and that that planning judgement is subject to challenge in the courts only on the normal grounds for judicial review. In my opinion the respondents could be criticised for not requiring AMEC to look at alternative sites and submit an outline of such alternatives in two circumstances. The first would be if the respondents had concluded that the Edinbane wind farm would adversely affect the integrity of the Cuillins SPA and an issue of alternative solutions had arisen under Regulation 49 of the Conservation (Natural Habitats, etc) Regulations 1994. I am not persuaded that the presence of Annex 1 birds on the Edinbane site was sufficient of itself to make alternative sites a material consideration. The second circumstance would be if they had reached the view that it was appropriate to apply the strategic policy in HRES, discussed in paragraph 7 above. In either event, it could have been argued that the respondents had failed to take account of alternatives as a material consideration in making their planning judgement. But they did not reach that conclusion about the effect of the development on the SPA nor did they take that view about HRES. I am not persuaded that in the circumstances which eventuated the respondents were under any legal duty to require the study of alternative sites or that in failing to examine such sites they failed to take account of a relevant consideration. Mr Campbell also presented this challenge on the basis of irrationality. For the same reasons I am satisfied that the respondents did not act unreasonably in not instructing AMEC to consider alternatives. Accordingly this ground of challenge fails.

[63] In his submission in response to Mrs Wolffe on the ninth day of the hearing, Mr Campbell expanded his argument by suggesting that in fact AMEC had identified an alternative site for development on land at Beinn Roishader belonging to a Major MacDonald and accordingly had failed to comply with the 1999 Regulations. He referred me to a memorandum dated 11 October 2001 from the respondents' area planning control manager to their area roads manager which revealed that AMEC had an interest in that potential site. Mrs Wolffe submitted that AMEC had initially presented Beinn Roishader as a site to be developed in addition to Edinbane in pre-application discussions over the Edinbane site but that in the event AMEC did not proceed with the former site. Accordingly it had never been treated as an alternative site. I see no reason to doubt Mrs Wolffe's presentation of the facts. It is supported by SNH's letter of 11 October 2001 which suggests that the cumulative effect of the two sites should be considered. I am satisfied that the respondents were entitled to accept AMEC's environmental statement although it did not discuss alternative sites.

The failure to assess flooding risk before granting planning permission

[64] Thirdly, the petitioners asserted that the respondents had acted illegally and irrationally in granting the planning permissions without having first received sufficient information in the environmental statement about the risk of flooding beyond the development site. In their petition the petitioners averred that flooding was a likely significant effect because of the nature, size and location of the development on the Edinbane site which was on the blanket peat watershed of two rivers and in a high rainfall area. One of the rivers ran through the settlements of Blackhill and Edinbane. Mr Campbell submitted that the environmental statement was defective because it did not address that significant environmental effect. Furthermore, the respondents had acted illegally and irrationally in seeking to deal with the assessment and mitigation of flood risk by a planning condition, instead of requiring the relevant information to be included in the environmental statement. By failing to obtain the relevant data the respondents deprived themselves of the ability to assess the risk of flooding beyond the development site before they determined the applications. In the course of argument I was referred to the following cases: Hardy, British Telecommunications plc, Lebus and Wells (paragraph 31 above). I was also referred to advice on the importance of assessing flood risk in the government guidance, NPPG 7 and SPP 7.

[65] AMEC in their initial environmental statement of February 2002 presented the development as having a minor and not significant impact on pre-development hydrological conditions of the surrounding catchments. SEPA in their letter of 9 May 2002 did not object to the application but recommended that there should be a planning condition postponing commencement of the development until the respondents in consultation with among others SEPA had approved a construction method statement. After Mr Hodgson, a member of the petitioners, and Dr Jeremy Carter had made representations to them about the risk of flooding outside the development site, SEPA wrote to the respondents on 13 November 2002. SEPA requested pre- and post-development runoff calculations and, if those calculations demonstrated a significant increase in runoff, a re-design of the surface water drainage system so that, so far as practicable, the post-development runoff would be no greater than the pre-development runoff.

[66] In their second amended proposal in August 2006 AMEC provided a flood risk assessment by SLR Consulting Limited which comprised Appendix G to the submission. The assessment discussed appropriate site design and mitigation measures such as cut off drains, sustainable drainage systems and the use of granular material on the construction of site roads. It identified the only potential risk of flood as overland flow. It assessed the risk of flooding as medium without mitigation measures and low if mitigation measures were introduced. It concluded that, with such suitable design and mitigation measures, the potential impact of the development would be limited and localised. In a consultation response dated 4 October 2006 SEPA confirmed that it did not object to the development and re-iterated its request for pre- and post-development runoff calculations and a design of the surface water drainage system to avoid any material increase of the flood risk elsewhere.

[67] Finally, on 8 March 2007 SEPA wrote to the respondents stating that they were willing to accept planning conditions requiring the prior approval of a construction method statement including surface water drainage arrangements which were to comply with "Sustainable Urban Drainage Systems" ("SUDS") principles and the provision of pre- and post-development runoff calculations. SEPA wrote to the petitioners' solicitors on the same day, informing them of the stance which they had taken. In that letter, when commenting on an assertion by the petitioners that there had been a failure to consider significant environmental effects of the project, Ms Haslam stated:

"SEPA has not suggested that conditions be imposed in the planning permission to require the provision of information which is fundamental to assessing the environmental impacts of the proposed development. It has however suggested conditions which, in its opinion, should be attached to the planning permission (if granted). Those conditions relate to the detailed specification of the mitigation measures which have already been specified in the ES as being envisaged to avoid, reduce and possibly remedy significant adverse effects."

[68] In relation to off-site flood risk she stated: "This can be addressed by a planning condition requiring that a scheme be submitted to ensure the post-development runoff is equivalent to the pre-development runoff ...".

[69] In the correspondence summarised above SEPA did not treat off-site flood risk as a significant environmental effect. The mitigation measures referred to in SLR Consulting Limited's flood risk assessment do not appear to be sophisticated or unusual. Contrary to SEPA's assertion in the last-mentioned letter, that assessment did address, albeit briefly, off-site flood risk as it considered the possible increase of peak flows in local water courses. The respondents treated the risk of off-site flooding as a matter which could be dealt with by planning condition as recommended by SEPA. Having regard to the nature of the development comprising eighteen turbines on concrete foundations and site roads linking those turbines which were to be spread over a large area it is not obviously apparent that any increase in runoff would be likely to be material and that offsite flooding would be likely to be a significant environmental effect. There was no evidence before me, other than the petitioners' assertions in correspondence, to support their averments that such flooding was likely to be a significant environmental effect. Accordingly the English cases referred to in paragraph 64 above may be distinguished from the circumstances of this case. Mitigation of non-significant effects can be addressed in the fulfilment of planning conditions. See the cases referred to in paragraph 35 above. There is no basis within the grounds of judicial review for challenging the respondents' decision on this matter.

The exclusion of the borrow pits from the Environmental Statement

[70] Fourthly, the petitioners contended that the respondents had acted illegally and irrationally in granting permission for the borrow pits in the absence of an environmental statement which addressed their environmental impact. The borrow pits were an integral part of the wind farm development and the environmental statement should have assessed the cumulative environmental effects of the wind farm and the borrow pits. There had been no non-technical summary relating to the borrow pits and the procedures for publicity and public consultation in the 1999 Regulations had not been followed. The splitting of an EIA development into multiple applications with the effect that some parts were below the threshold for an EIA defeated the object of the 1999 Regulations. In this regard Mr Campbell referred to Swale Borough Council and BAA plc.

[71] It will be recalled that in 2001 SNH advised that the excavation of material should be discussed in an environmental assessment and the respondents strongly endorsed that view (paragraph 9 above). The initial wind farm application had included within its scope proposals to excavate stone but AMEC in the initial environmental statement of February 2002 had made no decision on the source of material for the construction of site roads (paragraph 10 above). By letter dated 9 May 2002 SEPA advised the respondents that they considered the proposals for sourcing stone for the site roads to be integral to the impact of the wind farm development. In the event, the respondents resolved to grant planning permission for the wind farm in November 2002 and included in the proposed permission a planning condition (No 22) which required the developer before the development commenced to submit detailed proposals for sourcing aggregate including any necessary planning applications (paragraph 12 above). Thereafter AMEC in December 2002 lodged two separate planning applications for the borrow pits and asked for a screening opinion on whether the applications for the borrow pits would require an environmental impact assessment. On 7 January 2003 the respondents opined that such an assessment would not be required (paragraph 13 above). No challenge has been made to that screening opinion. Neither SNH nor SEPA objected to the planning application for the borrow pits. The petitioners, Dr Jeremy Carter and others objected, arguing among other things that it was unlawful to separate the borrow pits from the assessment of the environmental effects of the wind farm. On 14 April 2003 the respondents resolved to grant planning permission for the two borrow pits subject to the prior issue of a permission for the wind farm and the inclusion of further planning conditions (paragraph 14 above).

[72] In August 2006 AMEC included within their second amended proposal (in appendices H-N) an assessment of the cumulative impact of the wind farm and the borrow pits. The borrow pits applications were for the extraction of roadstone from two pits which were to be located within established commercial forestry plantations in close proximity to the wind farm site. There were accordingly no issues of visual intrusion. The assessment proposed the use of ditches and settlement lagoons to prevent pollution of watercourses from surface runoff and the protection of local ecology by not operating the borrow pits in the breeding season of the bird species which frequented the sites. Site restoration works were to be agreed with the respondents and SNH. On pages 16-21 of the core document of the second amended proposal AMEC summarised the cumulative impacts of the wind farm and the borrow pits and concluded by stating that they had not identified any likely significant cumulative environmental effects over and above the assessed environmental effects of the wind farm.

[73] The petitioners did not challenge that conclusion. Their criticism of the respondents was that they allowed the borrow pits to be separated from the wind farm assessment and that when the cumulative assessment was made available to the public in August 2006 interested parties might have been misled as the respondents had already resolved to grant permission to the borrow pits. This course of action was illegal because the public had been deprived of an opportunity to comment on an environmental assessment of the borrow pit proposals contrary to Regulation 13(5) of the 1999 Regulations. The issues therefore are whether the public had such a right under the 1999 Regulations and whether the public were deprived of an opportunity to comment on the environmental assessment in relation to the borrow pits.

[74] I am satisfied that there has not been any breach of regulation 13 of the 1999 Regulations in relation to the borrow pits. As Mrs Wolffe submitted, Regulation 13(5), which requires publication in a local newspaper and in the Edinburgh Gazette of a notice of the availability of an environmental statement, applies only in an EIA application. Because of the screening opinion, the borrow pits applications were not EIA applications.

[75] It may have been unwise of the respondents to have allowed the borrow pits applications to be separated from the wind farm application and to have proceeded in 2003 without the inclusion of their environmental effects in an assessment covering both the wind farm and the borrow pits. The separation of the borrow pits applications from the application for the wind farm appears to have created some confusion which can be seen in the report of the director of planning and development of 27 February 2007 in which he proposed that planning conditions relating to the borrow pits applications be imposed in the wind farm permission. But that does not make the decision illegal.

[76] It is undisputed that the borrow pits formed an integral part of the wind farm development and Swale Borough Council and BAA plc support the view that a part of a development in such circumstances should not normally be considered in isolation. But I am not satisfied that it was illegal to separate the borrow pits from the assessment of the wind farm. The initial assessment in 2002 and the August 2006 assessment did not identify any significant environmental effects of the borrow pits whether considered alone or cumulatively with the wind farm. It is consistent with Advocate General Gulmann's approach in Bund Naturschutz that the court should look at the particular circumstances of each case in deciding whether a cumulative assessment is needed to fulfil the purposes of the Directive. While, as Mr Campbell argued, the cumulative effects of the wind farm and the borrow pits are commutative, I see no practical reason for an environmental impact assessment of the borrow pits other than in the context of the wind farm application.

[77] In any event the problem, if such it was, was remedied. Having received legal advice and reconsidered the matter, the respondents appear to have encouraged AMEC to present a cumulative assessment in the second amended proposal. AMEC presented that assessment. The respondents were able thereby to consider the cumulative impact of the wind farm and the borrow pits before they granted planning permission to the wind farm.

[78] AMEC's second amended proposal, which included the cumulative assessment, received the publicity required by the 1999 Regulations in relation to the wind farm development. I am not persuaded that interested parties would have been misled into believing that they could not comment on the cumulative assessment so far as it related to the borrow pits because the respondents had resolved to grant them conditional planning permission in 2003. This is so particularly as the borrow pits were subsidiary developments and the permissions were conditional upon the grant of permission to the wind farm. Parties who had an interest in the environmental effects of the wind farm proposal would have seen from the contents, introduction and text of the core document of the second amended proposal that it addressed cumulative impact and that the relevant reports were in appendices H-N. If interested parties had wished to raise issues in relation to the environmental effects of the borrow pits in the context of a consideration of the wind farm application and its cumulative impact, there was nothing to stop them from doing so. Comments on cumulative impact and on the planning conditions which were proposed in the 27 February report in relation to the borrow pits would have been relevant to the determination of the wind farm application. I am not persuaded that parties who wished to comment on cumulative impact would have been deterred from making any pertinent comments by the way in which that impact came to be assessed.

[79] The 1999 Regulations are concerned with achieving a proper environmental assessment in which the public have the opportunity to participate. In this case, in contrast with the circumstances in BAA plc, the unchallenged conclusion of the cumulative impact assessment was that the borrow pits would not give rise to any significant environmental effects beyond those identified in the assessment of the wind farm. I am not satisfied that there has been any failure to assess cumulative environmental effects or that democratic participation in the assessment has been thwarted in any way. The challenge appears to be a technical one rather than one with substantive content and I am not persuaded that the technical challenge is justified. The 1999 Regulations are not designed to create an obstacle course for a developer or a planning authority. This ground of challenge fails.

[80] For the sake of completeness I record that, in a submission addressing the hypothesis that the borrow pits were EIA development and arguing that there had been substantive compliance with the requirements of the 1999 Regulations, Mrs Wolffe referred me to Burkett, Smith, Brown and Prokopp (paragraph 31 above) and to R (Barker) v Bromley London Borough Council [2007] 1 AC 470. I do not need to consider that submission in detail. I observe only that if the borrow pits had been EIA development, there would have been a failure to publicise an environmental statement in relation to the borrow pits applications under the 1999 Regulations but I consider for the reasons set out above that there would have been substantive compliance with the obligation to publicise.

[81] It follows that the four arguments which the petitioners have advanced in relation to the environmental impact assessment fail. I therefore turn to the petitioners' second heading of their grounds of challenge.

(ii) The Legality of Planning Conditions

[82] Under the second heading, the petitioners submitted that two of the planning conditions in the wind farm permission and one condition in each of the permissions for the borrow pits were void for uncertainty. They also submitted that the respondents acted irrationally in imposing those conditions.

[83] In support of their submission the petitioners referred to government guidance in Circular 15/1999 paras 4 and 124 and in PAN 58 para 96. They also referred to the following cases: Fawcett Properties Ltd v Buckingham County Council [1961] AC 636, Hall & Co v Shoreham Urban District Council [1964] 1 WLR 240 and Eastwood District Council v McTaggart & Mickel Ltd 1992 SCLR 656. In relation to the consequences of a planning condition being held to be ultra vires the petitioners referred to British Airports Authority v Secretary of State for Scotland 1979 SC 200 and North East Fife District Council v Secretary of State 1992 SLT 373. They submitted that unless the ultra vires condition was unimportant or trivial, the planning permission had to be quashed because it could not be affirmed that the planning authority would have granted permission without the condition. The respondents referred to Caledonian Terminal Investments Ltd v Edinburgh Corporation 1970 SC 271, R on the application of Mid Suffolk District Council v The First Secretary of State [2005] EWHC 2634 (Admin) (on the use of extrinsic evidence in interpreting an ambiguous planning condition), and Inverclyde District Council v Inverkip Building Co Ltd 1983 SC 81 (on severability).

[84] The first condition which the petitioners challenged was in the planning permission for the wind farm and the relevant part of the condition was in the following terms. "Except as otherwise provided for and amended by the terms of this approval, the operator shall construct and operate the development in accordance with the provisions of the application, the submitted plans, and the Environmental Statement (as revised by the Addenda and Supplementary Information to the Environmental Statement)". The condition went on to state that the permission was for a maximum of eighteen turbines and one anemometer mast to be sited as shown in a specified revised layout drawing. The condition also provided that any resiting of the turbines or the access roads more than fifty metres from an approved location would require the written consent of the planning authority in consultation with SNH and SEPA.

[85] The grounds of challenge were that the condition was void for uncertainty and that the respondents had acted unreasonably in imposing such a condition which would require an informed professional to read all of the extensive environmental documents which AMEC had produced to understand the meaning of the condition. The petitioners accepted that the meaning of the condition was capable of being ascertained but, they submitted, it would involve an enormous amount of reading and as a result the meaning of the condition was not reasonably ascertainable. They referred to paragraph 124 of Circular 15/1999 which stated:

"Conditions attached to a planning permission may include mitigation measures. However, a condition requiring the development to be "in accordance with the Environmental Statement" is unlikely to be valid unless the ES was exceptional in the precision with which it specified the mitigation measures to be undertaken. Even then, the condition would need to refer to the specific part of the ES rather than the whole document".

[86] I am satisfied that while the condition is contrary to the practice which is recommended in Circular 15/1999 and in PAN 58, it is a valid condition. Reasonable ascertainability is not the test for the validity of a condition where it is asserted the condition is void for uncertainty. There is no support for a reasonable ascertainability test in Fawcett Properties, Hall & Co and Eastwood District Council. In those cases the judges speak of a definite and ascertainable meaning or of a sensible and ascertainable meaning or of language being capable of a reasonable construction. While I do not exclude the possibility that the imposition of a condition might be attacked as unreasonable in the Wednesbury sense if the task of giving it meaning were so herculean as to be unrealistic, I do not consider that to be so in this case.

[87] It is important to see the condition in the context of the other conditions imposed in the permission. There were conditions regulating light pollution and visual amenity, the type of turbine which could be used, noise limits, the periods during which construction work could take place, road safety, ornithological monitoring, and site restoration. There was a requirement for a peat slide mitigation statement, and prohibitions from working in a specified area in the spring months to protect wildlife and from working in another area to protect bats. The condition which required the prior approval by the planning authority of a construction method statement was stated to include measures to protect watercourses, to control surface water runoff to prevent off-site flooding, to protect private water supplies, to control waste, to regulate fuel storage and to protect otters and their feeding habitats. The authors of the environmental statement had envisaged that the construction method statement would adopt and expand upon the mitigation strategy for on-site works which they had set out. Separate planning conditions were imposed in relation to the borrow pits.

[88] In this context the principal purpose of the impugned condition appears to have been to regulate the location of the turbines and roads which was set out in Appendix A of the second amended proposal. It is not the case that the respondents sought to impose all of the needed mitigation measures by means of the impugned condition. It was not suggested that any significant mitigation measure was imposed by this condition alone. In my opinion the respondents were not Wednesbury unreasonable in imposing the condition.

[89] The second condition which was challenged was a sub-paragraph of the condition requiring the prior approval of a construction method statement and was adopted on the recommendation of SEPA in their letter of 8 March 2007. Unfortunately the respondents omitted the phrase in italics and square brackets when placing the condition in planning permission for the wind farm. The relevant part of the condition is as follows: "Prior to the commencement of development, the applicants shall submit a construction method statement for the prior approval of the Planning Authority in consultation with Scottish Natural Heritage and the Scottish Environment Protection Agency. This statement shall detail contractor arrangements for the following ... (xviii) surface water drainage arrangements, to comply with "Sustainable Urban Drainage Systems" (SUDS) principles, including the provision of calculations of pre and post development runoff [with appropriate design storm figures, measures to reduce post development runoff] to equivalent of predevelopment runoff, and sensitivity testing of the effect of large return period rainfall events."

[90] In seeking to uphold the sub-paragraph of the condition the respondents submitted, first, that the condition had a tolerably clear meaning and, secondly, in any event regard could be had to SEPA's letter of 8 March 2007 to give the correct meaning to the condition: Mid Suffolk District Council. Mrs Wolffe submitted that if she were wrong in the first two submissions the words in the sub-paragraph after "SUDS principles" could be excised and the residue would be valid and have the same effect.

[91] I am satisfied that the condition on its face is incorrectly worded and that any informed person reading it would be aware that an error had occurred. The court has made it clear on a number of occasions that in dealing with defective conditions each case turns on its own facts. In this case it is important that the part of the condition which is challenged is a sub-paragraph of a condition which requires the developer to submit a construction method statement for the approval of the respondents in consultation with SNH and SEPA. Among the matters for which AMEC had to obtain the respondents' approval were the contractor arrangements for surface water drainage which the condition stated had to comply with SUDS principles. The reference to SUDS principles is not sufficient of itself to give notice of the requirement contained in the missing words as PAN 61 (Planning and Sustainable Urban Drainage Systems) does not prohibit an increase in run-off. The important point however is that the surface water drainage arrangements were subject to the approval of the respondents.

[92] In framing their proposals for contractor arrangements for such approval, AMEC would be aware that the condition was incomplete and would not be in a position to object if the respondents, in consultation with SEPA, were to insist on a design which included measures to avoid any material increase in runoff as a result of the development. The sub-paragraph of the condition as drafted gives the respondents the same control over the surface water arrangements as the sub-paragraph which SEPA proposed in their letter. SEPA sought greater specification of what was required than the respondents had originally proposed. But the extent of the respondents' control is not affected by the error. In these circumstances the omission of the words does not vitiate the sub-paragraph or the wider planning condition. Accordingly while I consider the planning condition, in which the sub-paragraph appears, to be an important one in the context of the permission and thus not severable, no question arises from this error as to the validity of the planning permission.

[93] In any event AMEC or an interested member of the public could ask the respondents for clarification of the apparent omission and the respondents could refer to the SEPA letter to show more precisely what this sub-paragraph was intended to achieve. Further, Mrs Wolffe explained that the SEPA letter was included as a response by a statutory consultee in the respondents' application file which would be open for inspection by the public for about one year after the grant of the planning permission. Thus AMEC and members of the public without asking for clarification could ascertain what the required surface water arrangements were to achieve. While it would not have been straightforward for an uninformed member of the public to track down the SEPA letter in the application file as the source of the proposed condition, an interested party who was familiar with the planning process would know that SEPA would have been the likely source.

[94] The challenge to the validity of this condition accordingly fails.

[95] Finally, the petitioners submitted that a condition which appeared in each of the two planning permissions for the borrow pits was void for uncertainty. The condition so far as relevant stated: "The development shall be carried out in accordance with ... the provisions of the Environmental Statement entitled "Edinbane Wind Farm - Second Amended Proposal, Appendix H-N dated August 2006". The argument was essentially the same as that advanced against the first condition mentioned above.

[96] I am satisfied that this submission fails essentially for the same legal and factual reasons as the challenge to the first condition fails. In relation to the facts, it is important to recall that the planning authority had come to the view that the environmental effects of the borrow pits themselves were not significant and that the petitioners did not suggest otherwise. We are therefore not dealing with EIA development in considering these conditions. Appendices H-N comprised a fourteen-page report covering the proposed working methods to be used in, and perceived environmental impacts of, the borrow pits together with plans and diagrams, and six specialist reports on particular environmental effects. It is relatively easy to see how AMEC proposed to work the borrow pits and the mitigation measures recommended when reading the general report and the specialist reports. AMEC, the respondents and interested statutory bodies such as SNH and SEPA would not have difficulty in identifying what AMEC was proposing to do in those documents.

[97] Again it is important to see the impugned condition in its context as the borrow pit permissions also had planning conditions governing among other things (i) site restoration, (ii) seasonal working to protect merlins, (iii) the approval of drainage arrangements, (iv) the fencing of the sites and the storage of explosives, (v) the handling of controlled waste (including peat, soils and rock), (vi) the suspension of excavation in specified areas in the wettest periods of the year, (vii) the preparation and approval of a peat slide mitigation statement, (viii) the protection of archaeological sites and (ix) the regulation of working hours and blasting to control noise and ground vibration. There were no planning conditions addressing dust control, fire hazard, fuel storage or the protection of otters, each of which were mentioned in the Appendices. But the specialist dust control report advised that the risk of dust impact at sensitive receptors would be very low even without the dust suppression techniques which it proposed and the report on otters identified no serious effects but was concerned principally with protecting the water quality in nearby watercourses used by otters. In Appendix H the fire hazard precautions were simply fire risk warnings and notices and the presence of fire extinguishers and it was proposed that the storage and use of fuel on the sites would be in accordance with SEPA's requirements. Where the main environmental impacts of the proposals have been addressed in specific planning conditions, I do not consider that the absence of detailed conditions on these few environmental matters makes the imposition of the impugned general conditions unreasonable.

[98] Accordingly the challenge to the three planning permissions on the ground that each contains an invalid condition fails.

(iii) The consideration of the separate planning applications for the borrow pits

[99] The petitioners challenged the respondents' acquiescence in AMEC's separation of the two applications for permission to develop the borrow pits from the application for the wind farm. They submitted that the separation was illegal for three reasons. First, it was illegal because the planning committee which in March 2007 approved further planning conditions relating to the borrow pits had failed to consider relevant information which had been available to the earlier committee which approved in principle the borrow pits applications in 2003. Secondly, the respondents in so acting had acted irrationally. Thirdly the way in which the respondents acted had involved procedural unfairness. In support of his submissions on the alleged failure to take relevant considerations into account Mr Campbell referred to John G. Russell (Transport) Ltd v Strathkelvin District Council 1991 SLT 1001 and City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33.

[100] The factual background to these challenges is set out in paragraph 71 above and in the earlier paragraphs to which it refers.

[101] Mr Campbell founded on Professor Rowan Robinson's opinion dated April 2005 (paragraph 17 above) and in particular his advice, in the context of the wind farm application, that where the planning committee which was considering a planning application after a change of circumstances had a different membership from the committee which had earlier resolved to grant the application, the planning officer in his report to committee should deal with all of the issues relevant to the planning application. Mr Campbell submitted that the director of planning and development had failed to do so in relation to the borrow pits in his report of 27 February 2007. In particular the planning committee on 9 March 2007 did not have (i) the papers which were before the committee in 2003, (ii) the representations from the public in relation to the borrow pits in 2003 and (iii) any advice on the relevant mineral extraction policies of the respondents which were current in 2007.

[102] In relation to the challenge that the planning committee in March 2007 failed to take account of material considerations, it is important to understand the scope of Lord Cullen's decision in John G Russell (Transport) Ltd. In that case the court held that a planning authority could depart from an earlier decision to grant planning permission subject to the conclusion of a section 50 agreement (now a section 75 agreement) where there had been delays in reaching that agreement and in the meantime there had been material changes of circumstances. Those changes involved both physical changes near the site and also the production of new evidence to the planning authority which suggested that the development had a greater noise impact on nearby houses than they had understood when they took the original decision. Lord Cullen held that the duty on the planning authority was to have regard to all relevant information which was known to them before the point at which they exercised their statutory powers of granting or refusing planning permission. Where relevant information caused them to change their view, they were not bound by their earlier decision.

[103] The question which arises is whether there was a material change of circumstances in relation to the borrow pits proposals which required the planning committee to review all of the considerations which its predecessor had considered in 2003. In my opinion there was not. There was nothing in Appendices H-N of the second amended proposal which called into question the principle of the development of the borrow pits as proposed in the planning applications. There was no change in development plan policies in relation to mineral extraction between 2003 and 2007. New matters since 2003 were (a) the expanded assessment of the environmental impact of the borrow pits in Appendices H-N of the second amended proposal and (b) the proposed additional planning conditions which related to the borrow pits.

[104] The respondents in resolving to grant conditional planning permission to the borrow pits in 2003 had envisaged that additional planning conditions might be imposed to meet the views of the environmental health department and SNH. Mrs Wolffe informed me that the condition relating to noise and ground vibration from blasting was included at the instance of the former and that conditions in relation to restoration (an expansion of the condition proposed in 2003) and the prohibition of work during the merlins' breeding season were requested by the latter. See SNH's letter of 2 October 2006. The other conditions recommended in the report of 27 February 2007 which found their way into the permissions for the borrow pits were two conditions to protect archaeological sites in the vicinity of the borrow pits which had been reported in Appendix N to the second amended proposal.

[105] In my opinion neither the environmental assessment of the borrow pits nor the new conditions which the director of planning recommended in his report of 27 February 2007 amounted to a material change of circumstances such as would have required the respondents' planning committee in 2007 to re-visit the decision to grant conditional planning permission to the temporary development of the borrow pits. It was envisaged in 2003 that further conditions might be imposed before issuing planning permission, which was in each case conditional on the grant of permission to the wind farm development.

[106] I am satisfied that the respondents did not act irrationally or in a way which was procedurally unfair. While different views may be taken of the merits of the screening opinion which initially had the effect of excluding the borrow pits from the environmental assessment of the wind farm proposal, I have held in paragraphs 70 - 79 above that that exclusion was legal. As the borrow pits were not EIA development, the public had no right under the 1999 Regulations to comment on their environmental effects. In any event I am not persuaded that persons interested in the wind farm development, and in particular objectors to the development, were deprived of any opportunity to comment on the environmental effects of the borrow pits or the conditions in relation to them which the director of planning and development proposed in his report of 27 February 2007.

[107] In domestic planning law the public's right of participation in the planning decision ended in April 2003 when the respondents resolved to approve the grant of temporary planning permission to the borrow pits. Nonetheless, it is likely that the respondents would have considered representations from the public on the proposed conditions as well as any representations on cumulative impact in relation to the wind farm application as cumulative impact was relevant to the wind farm application. The petitioners were aware of Appendices H-N of the second amended proposal well before the March 2007 meeting of the planning committee as they responded to the second amended proposal (paragraph 21 above) in September 2006. Further, in response to questioning from the court, Mr Campbell acknowledged on behalf of the petitioners that Appendices H-N were a satisfactory assessment of the impact of the borrow pits. The petitioners will also have been aware of the report of 27 February 2007 which contained the proposed conditions and Mr Hodgson attended and addressed the meeting on 9 March 2007 as their representative. There was no evidence before me which suggested that any other interested party had been excluded from commenting on the impact of the borrow pits in advance of the March 2007 meeting as a result of the way in which Appendices H-N came to be part of the environmental information in relation to the wind farm proposal.

[108] These challenges therefore fail.

(iv) The failure to consider HRES

[109] Under this fourth heading the petitioners submitted that the respondents had acted unreasonably in the Wednesbury sense in failing to consider policy E 7 of HRES when deciding to grant planning permission for the wind farm. The petitioners also submitted that the respondents in reaching their decision had taken account of an irrelevant consideration, namely that the application had pre-dated the publication of HRES. Reference was again made to John G. Russell (Transport) Ltd v Strathkelvin District Council 1991 SLT 1001 in support of the contention that the adoption of HRES was a change of circumstances of which the respondents required to take account.

[110] HRES is a strategy document which aims to provide guidance and direction for the respondents' decisions and for developers' plans. The formulation of that strategy was informed by the respondents' Renewable Energy Resource Assessment which was undertaken in 2004 to provide an objective estimate of the potential in the Highland area for renewable energy. That assessment examined the Highland area and coastal waters in 40,000 grid squares of one square kilometre each to estimate the capacity for renewable energy resources. In that assessment the respondents looked not only at planning and environmental constraints but also to such factors as energy productivity, cost and proximity to the national grid. For national and major onshore wind projects (which HRES defines as involving power capacity in excess of 100 MW and between 5 and 100 MW respectively) the respondents identified three preferred development areas where it was thought possible to locate clusters of larger projects. In the three preferred zones policy E 5 of HRES created a presumption in favour of onshore wind projects. Smaller sites were identified as possible sites and policy E 6 in HRES required that proposals in those areas be judged on their merits but the developer would have to show that there was no scope for alternative development within preferred development areas. Policy E 7, which is quoted in paragraph 7 above, was applied to the vast majority of the Highland area.

[111] It is clear from the report of the director of planning and development dated 27 February 2007 that the attention of the planning committee was drawn to HRES as a relevant consideration when they reached the decision to grant the impugned permissions. In the summary at the front of the report the director listed among the key considerations the degree to which the proposal complied with development plan strategy and HRES. Thereafter in paragraphs 8.7 - 8.10 of his report the director explained among other things that while HRES created a presumption against development at the Edinbane site, the strategy was not intended to be a site specific planning tool and was a starting point for the assessment of a proposal. He stated (in paragraph 8.9) that the constraints on the site which were identified in the Renewable Energy Resource Assessment model were Annex 1 bird species, visibility from dwellings, moorland, remoteness, telecommunications and the 1 km dwellings buffer. He stated that if those constraints were overcome through a more rigorous assessment of the site in the environmental statement, the precautionary approach could be set aside and the site could be considered appropriate for wind farm development. In substance the director's recommendation was that if the respondents accepted the more detailed examination of the site in the environmental statement they could approve the application, notwithstanding the strategic policy in E7 of HRES, as AMEC would have overcome the presumption against development by demonstrating that the site was not as constrained as the assessment model had suggested.

[112] At the committee meeting on 9 March 2007, Mr Mudie, the development management team leader, stated that one of the key considerations was the degree to which the proposal complied with the development plan and HRES, and informed the planning committee that under HRES there was a presumption against wind farm development at the Edinbane site. A representative of the petitioners who addressed the committee also drew their attention to the presumption and asserted that the developer ought to have demonstrated that there were no alternative viable sites and have taken a precautionary approach. After the objectors and the applicants had addressed the committee, Mr Mudie again addressed the committee, repeating the planning considerations which the committee should take into account in determining the application.

[113] Having regard to this evidence, I see no basis for the assertion that the respondents failed to take account of HRES. That they may have followed the suggestion of the director of planning and development to set aside the presumption for the reason which he suggested in his report does not amount to any error of law or involve any irrationality.

[114] The submission that the respondents had taken account of an irrelevant consideration was based on one sentence in the minute of the planning committee meeting which recorded the summing up by Mr Mudie. After stating that the main impacts for the application, cumulatively with the Ben Aketil development, related to landscape and visual amenity and ornithology, in particular the golden eagle population, Mr Mudie is recorded as saying the following: "Although the Council's Renewable Energy Strategy [HRES] identified the site as a "Red" area [i.e. an area in which the presumption against wind farm development applied], the submission pre-dated the strategy and was based on the Highland Council guidelines of 1995, which had identified the area as acceptable." He then discussed visual amenity and the conflicting views of SNH and the RSPB as to the likely effects of the development on the golden eagle population.

[115] The petitioners submitted that the passage quoted above occurred in the committee's deliberations and demonstrated that the committee had taken account of an irrelevant consideration. That is incorrect on two grounds. First, the passage quoted is a summary of part of Mr Mudie's summing up. Secondly, in context the comment appears to be no more than an explanation of how AMEC had come to apply for permission for the development on the Edinbane site. Having regard to the repeated advice to the committee that the degree to which the proposal complied with the development plan and with HRES was a key consideration, I cannot interpret this comment as advice or encouragement that the respondents should disregard HRES. Nor have I any basis in evidence for concluding that the respondents did so.

[116] This ground of challenge therefore fails.

(v) The failure to comply with the Conservation (Natural Habitats etc) Regulations 1994

[117] The petitioners under this heading advanced three distinct challenges to the legality of the respondents' decisions on the basis that they failed to meet the requirements of the Conservation (Natural Habitats Etc) Regulations 1994 ("the 1994 Regulations").

The context of the challenges

[118] The 1994 Regulations, which implemented in the United Kingdom Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora ("the Habitats Directive"), provide the mechanism by which European Natura 2000 sites are to be protected against development which might threaten their integrity. These sites are required to protect wild species and natural habitats which are seriously threatened (recital 4 of the Habitats Directive). The Cuillins SPA was created in implementation of the obligation on Member States under Article 4(1) of the Birds Directive to classify the most suitable territories in number and size for the conservation of the Annex 1 species, the golden eagle.

[119] The 1994 Regulations provide for an assessment of the impact of proposed land use projects on such European sites. In particular Regulation 48 requires that where a plan or project is not directly connected with or necessary to the management of such a site and is likely to have a significant effect on the site, the competent authority (in this case the respondents) must undertake an appropriate assessment of its implications for the site before undertaking or authorising the plan or project. In deciding whether a plan or project is likely to have a significant effect on the site the competent authority must consider the effect of the project in combination with other plans and projects if there is a risk that there would be a cumulative effect which would be significant. If the competent authority concludes that the plan or project either alone or in combination with other plans or projects is likely to have a significant effect on a site, it must carry out an appropriate assessment to ascertain whether the plan or project would adversely affect the integrity of the site. In carrying out that assessment the competent authority must consult the appropriate nature conservation body (in this case SNH) and have regard to their representations. Under Regulation 3(2) SNH are required to exercise their functions under enactments relating to nature conservation (including the 1994 Regulations) to secure compliance with the Habitats Directive. The competent authority may also, if they consider it appropriate, take the opinion of the general public.

[120] In short, the competent authority must first form a view as to whether the plan or project either alone or in combination is likely to have a significant effect on the site ("the significant effect test"). If it decides that there is likely to be a significant effect, it must carry out an appropriate assessment to decide whether the plan or project would adversely affect the integrity of the site ("the integrity test").

[121] Regulation 48(5) prohibits the competent authority from agreeing to the plan or project unless it has ascertained that it will not adversely affect the integrity of the site. The only exception to that prohibition is contained in Regulation 49 which provides that the competent authority may agree to a plan or project which fails the integrity test only if it is satisfied (a) that there are no alternative solutions and (b) the plan or project must be carried out for imperative reasons of overriding public interest. There is no question of a regulation 49 exception in this case.

Failure to conduct a proper assessment of the effect of the proposal on the Cuillins SPA

[122] The petitioners' first submission was that the respondents had failed to conduct an appropriate assessment as required by Regulation 48 of the 1994 Regulations. There were several strands to this submission. It was contended that the respondents had erred in accepting uncritically the advice of SNH when SNH had correctly advised them that they could carry out their own appraisal. The respondents had failed to assess critically the views of SNH and the evidence on which those views were based. By doing so the respondents had failed to take the precautionary approach required by European case law. This was so particularly when, as the respondents knew, other ornithologists such as those in the RSPB, Crane and Nellist and Mr McMillan were very critical of SNH's methodology and their conclusions on the integrity test. Having regard to the accepted uncertainties about the future trends of the golden eagle population in Skye, the respondents had failed to estimate the margin of error in SNH's calculations. The estimated impact of the combination of the Edinbane and Ben Aketil developments on golden eagle mortality per year was so close to the threshold which SNH had set of one death per year that there was very little room for error in the integrity test. In this context the respondents' failure to consider and evaluate the views of those who disagreed with SNH's assessment meant that they had not carried out an appropriate assessment. Had the respondents made this assessment they would not have been able to conclude that the integrity test was met as they could not be satisfied that there was no reasonable scientific doubt about that conclusion.

[123] In support of his submissions Mr Campbell relied principally on Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging tot Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en Visserij (Case -127/02) [2004] ECR I-7405 ("Waddenzee"). In this submission he relied on the ruling by the Court of Justice of the European Communities (i) that the appropriate assessment had to identify, in the light of the best scientific knowledge in the field, all aspects of the plan or project which by themselves or in combination with other plans and projects could affect the site's conservation objectives, and (ii) that in carrying out the integrity test the competent authority could authorise a plan or project only if they had made certain that it would not affect the integrity of the site. That test required that no reasonable scientific doubt remained as to the absence of such adverse effects (judgment at para 61).

[124] In response to this challenge, which in relation to the no reasonable scientific doubt test initially appeared to me to be the most formidable of the petitioners' challenges, Mrs Wolffe submitted that the petitioners had not established any error by the respondents. The respondents were entitled to rely on the advice of SNH; they were the appropriate nature conservation body and had the necessary expertise to advise the respondents on the integrity test. SNH had considered all of the criticisms of their approach which the ornithologists had made before giving their final advice. She demonstrated by reference to the correspondence lodged in process that the issues raised by the objecting ornithologists had been raised with SNH and considered by them before they sent their letter of 16 February 2007, in which they concluded that there would be no adverse effect on the integrity of the Cuillins SPA and withdrew their objection. She submitted that SNH had applied the correct test in knowledge of the relevant legal authorities.

[125] In discussing these issues I deal first with the evidence. It is clear that there is considerable uncertainty as to the future trends of the population of golden eagles in Skye. Environmental changes, loss of prey and potential competition from other species, including the white-tailed eagle, have been identified as relevant factors which could affect productivity and survival. SNH in their analysis recognised that on these issues they were dealing with probabilities rather than scientific certainty.

[126] The context in which the cumulative effect of the Edinbane and Ben Aketil wind farms was being assessed was that there were breeding pairs of golden eagles within the SPA which were not directly affected by the wind farm developments but there were sub-adult birds which flew in the vicinity of the proposed wind farm sites and which were available to replenish the breeding birds within the SPA when some of the latter ceased to breed or died.

[127] As narrated in paragraphs 16, 19, 21, 23 and 24 above, AMEC instructed several studies of the flight activity of sub-adult golden eagles in the vicinity of the Edinbane site in response to the concerns which SNH expressed, and reduced the size and number of turbines.

[128] In their letter of 2 October 2006 SNH recognised that the productivity of the Skye golden eagle population had declined in recent years and that they required to use up to date population parameters in the golden eagle population model which had been used to assess the cumulative impact of the Edinbane and Ben Aketil wind farms on the Skye golden eagle population. In order to reach a robust conclusion on the effect of the two wind farms on the Cuillins SPA they advised the respondents that they would be able to consider the proposal if they received a stand-alone document containing the information which they specified. That resulted in the Haworth report referred to in paragraph 24 above.

[129] In that report Dr Haworth analysed the loss of sub-adult habitat from the development of the two wind farms to be very small and unlikely to have a significant impact on the local golden eagle population. He reviewed the available data of golden eagle activity at Edinbane site and, having analysed the data collected between January and July 2002, between February and August 2005 and between August and December 2005, employed them to assess collision mortality. He then used the latest population data to model the future of the Skye population. He stated (in para 6.4) that, having modelled a range of scenarios, it was possible to state with some certainty, that the golden eagle populations of Skye and the Western Seaboard Natural Heritage Zone were currently secure and reasonably well buffered against some moderate increases in mortality, even if their annual productivity were to decline. Finally he concluded:

"The Cuillins golden eagle SPA is not a closed population and therefore adverse impacts are not anticipated if mortality of sub-adult eagles is below one per year. The future of the Skye population could be compromised if additional sub-adult mortality rises much above 1.0 per year. This agrees with the previous precautionary figure of 0.6 suggested by SNH (2004) for the Edinbane wind farm. It is important to note that this previous figure is still acceptable, even if productivity has declined".

[130] In response to Dr Haworth's report Crane and Nellist by letter dated 30 January 2007 repeated their previously expressed concerns about collision risk modelling and stated that the modelling did not reflect the situation on the ground. Mr MacMillan by letter dated 31 January repeated similar complaints in relation to the validity of the data and the SNH collision risk model and the 0.6 collision risk threshold which he had communicated previously to SNH and the respondents. He pointed out that the combined collision risk of Ben Aketil and Edinbane was 0.9 per year and the highest for any wind farm site in Scotland. The RSPB made the same point in their letter of 21 February 2007 and repeated their concerns about the uncertainties over the potential impact of the developments on the golden eagle population.

[131] In their letter of 16 February 2007 SNH advised the respondents that they were required to undertake an appropriate assessment of the implications of the proposal for the Cuillins SPA and that the assessment could be based on the EIA and informed by SNH's appraisal. SNH also stated that the respondents could if they wished carry out further appraisal as part of the appropriate assessment. In their appraisal SNH confirmed that the wind farm would not have a direct impact on the eight resident pairs of golden eagles or the habitat in the SPA. The integrity of the site might be affected adversely if there were insufficient young eagles in the Skye population to replace any breeding adults in the SPA which ceased to breed or died naturally. The issue therefore was whether the numbers of sub-adult golden eagles in the Skye population would decline to the extent that recruitment into the SPA breeding population would be affected. SNH went on to analyse the loss of habitat and the collision risk modelling. They confirmed that the risk from Ben Aketil was between 0.21 and 0.34 deaths per year and the risk from Edinbane was 0.57, giving a combined range of between 0.78 and 0.91 per year.

[132] SNH then considered the effect of this potential mortality on the Skye golden eagle population. Aware of criticisms of their model, they explained that the modellers had used a different and more recent model than they had previously used which had been peer reviewed and was in the public domain. SNH considered the outputs of the model to be robust. They opined that the conclusions of Dr Haworth's report were sufficiently robust to have a high degree of confidence in them. Their advice was that if the proposal was undertaken in accordance with a condition which specified the type of turbine to be used in the wind farm, it would not adversely affect the integrity of the Cuillins SPA. In section 4 of their letter, which is quoted in paragraph 26 above, they repeated their conclusion that the environmental statement and their appraisal of it demonstrated that there would be no adverse effect on the integrity of the SPA.

[133] In the report of 27 February 2007 the director of planning and development referred to the assessments of collision risk and the criticisms of those assessments by the objectors. He included the SNH appraisal as an annex to his report in view of its importance to the decision which the respondents had to make. In his discussion of appropriate assessment in the report he informed the planning committee that that assessment could be based on the environmental statement and SNH's appraisal. On the basis of SNH's appraisal he concluded that the proposal would not adversely affect the integrity of the SPA. At the planning committee meeting on 9 March 2007 Dr A MacLennan spoke to the RSPB's criticisms of the assessment and in summing up Mr Mudie referred to SNH's view that the proposal met the integrity test. He stated that RSPB disagreed but that SNH were the respondents' statutory adviser.

[134] Turning to the petitioners' challenges I am not satisfied that in the circumstances the respondents were obliged to conduct a further evaluation of SNH's advice. The respondents were aware of the criticisms which had been levelled against both the methodology and the conclusions of the studies which SNH had requested. They were also aware that SNH had had discussions and written correspondence with their critics and knew about the criticisms when they produced their final advice in their letter of 16 February 2007. The objectors continued to make submissions to the respondents after SNH submitted their final advice. But, as Mrs Wolffe demonstrated, the objectors were raising matters which SNH had already considered when tendering their advice to the respondents. Regulation 48(3) of the 1994 Regulations required the respondents to have regard to SNH's views. SNH had the needed expertise and were under a statutory duty to secure compliance with the Habitats Directive. While the respondents were entitled to challenge SNH's views if they so wished, I am not persuaded that in the circumstances they were under an obligation to do so.

[135] During the debate I expressed concern as to how the court could be satisfied that SNH in giving their final advice had had regard to the "no reasonable scientific doubt" test set out in the Waddenzee judgment. On the final day of the hearing Mrs Wolffe lodged in process a letter from SNH dated 15 November 2007 which clarified SNH's approach. It confirmed that SNH had incorporated the interpretation of Articles 6(3) and 6(4) of the Habitats Directive into their staff guidance shortly after the Waddenzee judgment was delivered and that they had used the "no reasonable scientific doubt" test in their appraisal of Dr Haworth's report. They stated:

"It is important to stress that the appraisal focuses on the numbers of young eagles as part of the "floating" non-breeders in the Skye population. These are the birds that may eventually occupy breeding ranges in the SPA if and when a vacancy arises. A change in the number of such floaters on Skye does not directly affect the SPA but may influence the degree to which the breeding population in the SPA is buffered against change. We consider that there is no reasonable scientific doubt that the predicted loss of less than one eagle per year from this floating population, due to the combined effect of the Skye windfarms, would not adversely affect the integrity of the Cuillins SPA. We were and are confident that this predicted loss not only guarantees the integrity of the site in line with the obligations of Article 6(3) as clarified by the Waddenzee judgement, but also ensures adequate buffering against changes in the Skye eagle population due to other likely influences."

[136] I see no basis on the evidence before me for going behind this statement. The combined collision risk of the two wind farms (0.78-0.91 deaths per year) is close at its upper level to the threshold of one per year. That might suggest that there was not much room for error, as the petitioners submit. But that does not mean that there is reasonable scientific doubt about the conclusion which Dr Haworth and SNH reached in the integrity test. In their covering letter dated 3 January 2007 which accompanied the Haworth report AMEC stated that the assumptions used in the collision risk model, including the avoidance rate approved by SNH and the assumption that the eagles would not alter their flight patterns, were conservative. This, they suggested, meant that the model presented a very pessimistic view of the collision rate. It may be that SNH's threshold of one eagle per year was also a conservative figure, taking account of the uncertainties as to the future of the Skye golden eagle population; no evidence was led on this issue. If the assumptions or the threshold were conservative, I see no reason why SNH should not have been entitled to their high degree of confidence in Dr Haworth's assessment, which was appraised by their own experts. It has not been demonstrated to me that it is not so.

[137] I am satisfied that SNH in giving their advice and the director of planning and development in advising the planning committee applied the correct legal test. I am not persuaded that there was no factual basis for SNH's conclusion on the integrity test or that the respondents acted illegally in not carrying out further appraisals of SNH's views. In these circumstances this challenge fails.

Failure to take account of the cumulative effect of the proposal and HRES in that assessment

[138] The second challenge under the 1994 Regulations was that the respondents had erred in law in failing to consider the cumulative effect of (a) the proposed wind farms at Ben Aketil and Edinbane and (b) HRES in the significant effect test and in making an appropriate assessment. I discussed HRES in paragraph 7 above. The petitioners submitted that HRES was a "plan" in terms of Regulation 48 of the 1994 Regulations and that by providing for possible development of major or national-scale wind farms in Skye it would prima facie have a significant effect on the Cuillins SPA in combination with the Ben Aketil and Edinbane wind farms. Mr Campbell stated, correctly, that "plan" was not defined in the 1994 Regulations and submitted that it should be given a broad interpretation.

[139] He accepted that HRES was not a "land use plan" in terms of the Conservation (Natural Habitats & c.) Amendment (Scotland) Regulations 2007. The Scottish Ministers made those Regulations in order to give effect to the decision of the Court of Justice of the European Communities in Commission v United Kingdom (Case C-6/04) which held that the United Kingdom had failed to transpose Articles 6(3) and 6(4) of the Habitats Directive sufficiently clearly and precisely by failing to provide that statutory development plans were subject to appropriate assessment. Nonetheless, he submitted that HRES was a non-statutory strategy document which was intended to provide guidance and direction to the respondents' decisions and to developers' plans, and it zoned areas for renewable energy projects. It resembled a land use plan by identifying areas with a presumption in favour of development and areas with the opposite presumption. He submitted that it was evident that HRES was a plan which impacted on European sites as it was designed to steer developers of renewable energy projects in the direction of preferred areas. HRES had the potential to affect the Cuillins SPA because it did not have a presumption against the development of the possible areas for development in Skye.

[140] Mrs Wolffe submitted that before there required to be a cumulative assessment of a project and a plan, there had to be a likelihood of a significant effect on a European site. HRES lacked the site-specificity and predictability needed for it to have an significant effect or to contribute in combination with a project or another plan to such an effect. While she accepted, on the authority of Commission v United Kingdom, that an authority might require to assess a structure plan as well as a more site-specific local plan, she said that HRES was simply an aspirational strategy document. If, contrary to her submission, the court concluded that HRES was a plan for the purposes of Regulation 48 which was likely to affect the Cuillins SPA, she accepted that the respondents had not carried out an assessment of the cumulative impact of the developments and HRES on the SPA.

[141] In Commission v United Kingdom the Court attached significance to the statutory provision (in Scotland section 25 of the Town and Country Planning (Scotland) Act 1997) which provides that a determination is to be made in accordance with the development plan unless material considerations indicate otherwise. This presumption that the development plan is to govern the decision on an application for permission may enhance the potential of a plan to have a significant effect on a European site. But "plan" in Regulation 48 of the 1994 Regulations is not necessarily confined to statutory development plans. The European Commission in their publication, "Managing Natura 2000 Sites" give guidance on Article 6 of the Habitats Directive. In that publication they suggest that "plan" includes not only land use plans but also sectoral plans such as transport network plans and waste management plans. Thus the HRES although non-statutory could arguably be a plan within Regulation 48 if it had the potential to have significant effects on a European site.

[142] It is clear from the judgment in Commission v United Kingdom that a plan may have to be assessed for its effect or cumulative effect although a project envisaged by the plan would have to undergo a further assessment and approval before development could be undertaken. But a question arises as to the degree to which a plan promotes potential development before it is capable of having a significant effect. In that case, Advocate General Kokott opined that plans could have a significant effect where they coordinated individual proposals and thereby determined the implementation of those proposals. Thus if a plan proposed a housing development and a bypass, the implementation of the housing proposal could block alternative routes for the bypass. Similarly if it were proposed to built a highway or a railway in sections, the implementation of the first stages of the plan would often determine the realisation of the later stages. In such a context it is possible to see how a structure plan as well as a more specific local plan might, either by itself or in combination with a development proposal, have a significant effect on a European site.

[143] The question therefore is whether HRES is a plan which by itself or in combination with other plans or projects could have a significant effect on the Cuillins SPA. In Waddenzee the Court of Justice of the European Communities held (in paragraph 67 of their judgment) that a risk existed if it could not be excluded on the basis of objective information that the plan or project would have significant effects on the site. Can that risk be so excluded in relation to HRES?

[144] HRES states (at paragraph 6.2.2):

"Three levels of zoning have been adopted which describe areas of more likely, less likely and least likely development potential. The establishment of such areas does not, however, obviate the need for and importance of strict planning controls; and the zones do not dictate total development potential. It may still be possible for an inappropriate project to be proposed in a preferred development area and, conversely, for an acceptable project to be approved elsewhere."

[145] HRES designates most of Skye as being subject to a presumption against development under policy E 7. There are no preferred areas in Skye which enjoy a presumption in favour of development. Policy E 6 of HRES, which applies to several grid squares in Skye, including some adjacent to the Edinbane site, is in the following terms:

"Possible development areas have been identified in places where, although constraints are relatively light, their limited extent makes them less suitable than preferred development areas for national scale schemes. In these locations developments will be judged on their merits and will need to show that there is no scope for alternative development within preferred development areas."

[146] There is no statutory presumption in favour of HRES. It is simply a relevant consideration to be taken into account along with other such considerations in determining a planning application. It contains no presumption in favour of any areas in Skye and in my opinion does not block alternatives in the way Advocate General Kokott discussed in Commission v United Kingdom. Having regard to the status of HRES and, separately, the nature of its policies which apply in Skye I am satisfied that there is not a risk that it, either by itself or in combination with the wind farm developments at Ben Aketil and Edinbane, would have significant effects on the Cuillins site. Moreover, having regard solely to the HRES policies which apply in Skye, I am satisfied that there was no obligation on the respondents in carrying out the significant effect test and in making the appropriate assessment to attempt to quantify the effect of HRES either on its own or in combination with the two proposed wind farm developments.

[147] I am strengthened in this view by the difficulty in assessing cumulative effects in this context. Mr Campbell sought to address that concern by suggesting that one possible way of assessing such effects was as follows. HRES envisaged that by 2050 Skye might have developments producing 100 megawatts of electricity. The generating capacities of Ben Aketil and Edinbane were known. One could compute a mean golden eagle collision rate per megawatt for those two developments and then multiply that mean rate by the result of 100 megawatts minus the capacities of the two developments to arrive at an estimate of the likely effect of HRES on the Cuillins SPA. That exercise would in my opinion be unsound for three reasons. First, it uses as its starting point an indication of long term foreseeable developments at a date long after the expected lifespan of the Edinbane development. Secondly, it takes no account of the possible locations within Skye of the other capacity and the possibility that development at such locations might have little if any effect on the golden eagle population of Skye. Thirdly, and most importantly, it overlooks the point that the relevant policy in HRES (E 6) does not block or restrict alternatives nor does it make it more likely that a further wind farm which has an effect on the Cuillins SPA will receive permission.

[148] This ground of challenge therefore fails.

Failure to protect the white-tailed eagle (the sea eagle) : Regulation 3(4) of the 1994 Regulations and Article 4(4) of the Birds Directive

[149] The third submission rested on the presence in Skye of the white-tailed eagle and the terms of Regulation 3(4) of the 1994 Regulations and Articles 4(1) and 4(4) of the Birds Directive. As the petitioners eventually departed from this submission, I simply record it in outline.

[150] Regulation 3(4) provides: "Without prejudice to the preceding provisions, every competent authority in the exercise of any of their functions shall have regard to the requirements of the Habitats Directive so far as they may be affected by the exercise of those functions". The Petitioners submitted that by referring only to the Habitats Directive in that Regulation the United Kingdom authorities had failed to transpose the relevant provisions of the Birds Directive in breach of their duty under Article 249 of the European Community Treaty.

[151] Article 4(1) of the Birds Directive provides: " Member States shall classify in particular the most suitable territories in number and size as special protection areas for the conservation of these species, taking into account their protection requirements in the geographical sea and land area where this Directive applies". The white-tailed eagle is an Annex 1 species in the Birds Directive. The Petitioners submitted that evidence of the presence of white-tailed eagles on Skye imposed an obligation on the United Kingdom to create an SPA for them in the most suitable territory. Article 4(4) of the Birds Directive provides among other things: "In respect of the protection areas referred to in paragraphs 1 and 2 above, Member States shall take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting the birds, in so far as these would be significant having regard to the objectives of this Article ....". European case law on this latter provision formed the legal basis of the petitioners' submission.

[152] The factual basis of that submission was evidence of the existence of a substantial number of white-tailed eagles in Skye which the petitioners contended comprised one quarter of the United Kingdom population of that species. This was said to give rise to a prima facie case that the United Kingdom should have created an SPA for them in Skye. It was submitted that in view of that failure, the respondents were under a duty to protect an area or areas in Skye which should have been but were not classified as an SPA for the white-tailed eagle and should have assessed the impact of the Edinbane wind farm proposal on those areas. In so submitting the petitioners relied on the direct effect of Article 4(4) of the Birds Directive in the event of a failure by the United Kingdom to transpose it into domestic law and case law of the Court of Justice of the European Communities.

[153] In support of the submission Mr Campbell referred to Commission v Netherlands [1998] ECR I -3031, Commission v France [2000] ECR I - 10799, Commission v Ireland Case C-418/04 (the opinion of Advocate General Kokott), Commission v Austria [2006] ECR I - 2755, Commission v Italy Case C-388/05 and Kraaijeveld (paragraph 31 above).

[154] The petitioners' submission depended on establishing as a matter of fact that there was a most suitable territory in Skye which the United Kingdom ought to have classified as an SPA for the white-tailed eagle. The respondents did not accept that there was such an area or that there had been a failure by the United Kingdom to classify an SPA. Mrs Wolffe referred to Humber Sea Terminals v Secretary of State for Transport [2006] Env LR 4. SNH had not suggested that there was any obligation to classify an SPA. Their advice to the respondents was that the population of white-tailed eagles was unlikely to be affected by the wind farm. The court did not have a proper factual basis for adjudicating between the views of SNH on the one hand and RSPB and other objectors on the other. The court did not have jurisdiction to form its own view on this issue by assessing the limited ornithological evidence which was before it. Mr Campbell, recognising the absence of an uncontested factual basis for his submission, departed from the submission on the final day of the hearing.

Conclusion and disposal

[155] The petitioners have not succeeded in any of their various challenges to the respondents' decisions. I therefore sustain the third, fourth and fifth pleas-in-law for the respondents and dismiss the petition.