Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 6
XA52/13	OPINION OF LORD ARMSTRONG in the Appeal under section 239 of the Town and Country Planning (Scotland) Act 1997 by SALLY CARROLL Appellant; against A decision of a Local Review Body of Scottish Borders Council, dated 21 March 2013 ________________

Appellant: Poole, QC; Francis Gill & Co

Respondent: Burnet; BTO

Interested Party: Martin, QC, van der Westhuizen; CMS Cameron McKenna

17 January 2014

Introduction

[1] This is an appeal to the Inner House of the Court of Session in terms of the Rules of the Court of Session, chapter 41 which, by interlocutor of the Inner House, dated 12 July 2013, was remitted to the Outer House for a hearing. The appeal is brought under the Town and Country Planning (Scotland) Act 1997, section 239, against a decision of a Local Review Body ("LRB") of Scottish Borders Council, in relation to a planning review.

[2] The appellant was an objector to the grant of planning permission under review and is aggrieved by the decision of the LRB. The respondents are Scottish Borders Council. They are the relevant planning authority. The interested party is the firm of S. R. Findlay. The decision of the LRB, dated 21 March 2013 ("the decision") which the appellant is now contesting granted planning permission to the interested party by reversing, after a review, the decision of an appointed person, dated 3 October 2012, to refuse planning permission for the erection of two wind turbines, each 110m high, and the installation of ancillary equipment on land lying southwest of Neuk Farm, Cockburnspath ("the site").

[3] I was informed at the outset that this was thought to be the first appeal to the Court of Session against a decision of an LRB. It was made plain that the appeal was not presented as a challenge to the legislative provisions which regulate the decision-making processes of LRBs. Rather, the challenge is made on grounds of failure to take into account material considerations, failure properly to interpret and apply relevant planning policies, irrationality, failure to consider proportionality, breach of natural justice and failure to give adequate reasons.

The site

[4] The site is in coastal farmland in the north eastern part of the Borders region. It is proximate to a coastal margin which is considered to be highly sensitive. It is within 2km of the Berwickshire Coast Special Landscape Area, 4km of the Lammermuir Hills Special Landscape Area, 1km of the Dunglass Historic Garden, 2km of the Southern Upland Way, and is close to the two conservation areas of Oldhamstocks and Cockburnspath and the Berwickshire Coastal path. The planning history of the site discloses three decisions to refuse planning permission for the erection of wind turbines, one dated 15 September 2010, a subsequent decision of another LRB dated 7 March 2011, and a third, being the decision of the appointed person, dated 3 October 2012 which led to the review in this case.

The statutory context
[5] By virtue of section 43A of the Town and Country Planning (Scotland) Act 1997, ("the 1997 Act"), introduced by the Planning etc. (Scotland) Act 2006, ("the 2006 Act"), provision is made for the grant of planning permission in relation to local developments to be determined by a person appointed (normally a planning officer) by the relevant planning authority. Section 43A(7) requires that such a determination includes a statement of the reasons for which it is taken and further provides for review of such a determination. The provisions of section 43A(2)(a) operate to the effect that, where there is a review, the determination of the appointed person is not treated as that of the planning authority. Section 43A(12) requires that, following a review, the necessary decision notice must include a statement of the reasons on which the planning authority based their decision.

[6] The Town and Country Planning (Schemes of Delegation and Local Review Procedures) (Scotland) Regulations 2008, ("the 2008 Regulations"), provide for the review of such a case by an LRB and confer discretion on LRBs to regulate their own procedure. In particular, by regulation 12, where an LRB considers that the review documents (as defined by regulation 2) provide sufficient information to enable the determination of the review, they may determine the review without further procedure. Regulation 13 provides that where the LRB does not determine the review without further procedure, it may determine the manner in which the review is to be conducted, which could include inter alia a requirement for written submissions or the holding of one or more hearing sessions. Regulation 16 confers on an LRB the power to make a site inspection. Regulation 21 sets out the requirements of the necessary decision notice. In particular, regulation 21(2)(a)(viii) provides that the decision notice must include details of the provisions of the development plan and any other material considerations to which the LRB had regard in determining the application.

Legal principles
[7] I was referred to a number of passages from authorities on which it would be expected that, in an appeal of this kind, reliance would be placed. These were, in relation to the role of the court: the 1997 Act, section 239; Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345, 347‑348; and Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 959, 780H; in relation to the relevance of "material considerations": Tesco Stores Ltd v Secretary of State for the Environment (supra), at 780; Bolton Metropolitan Borough Council v Secretary of State for the Environment [1991] 61 P&CR 343; and Simson v Aberdeenshire Council 2007 SC 366, 379; and in relation to adequacy of reasons: Re Poyser and Mills Arbitration [1964] 2 QB 467, 478; Wordie Property (supra) at 348; South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953, at paragraph 36; Save Britain's Heritage v No 1 Poultry Ltd [1991] 1 WLR 153, 167; Moray Council v Scottish Ministers 2006 SC 691, at paragraph 30; Uprichard v Scottish Ministers [2011] CSIH 59, at paragraph [26]; and Uprichard v Scottish Ministers [2013] UKSC 21, per Lord Reed, at paragraphs 44-48.

Submissions for the parties
[8] Counsel for each party provided written submissions, the detail of which I do not repeat here. The arguments set out in them are reflected in what follows. I have taken the written submissions presented to me, together with the submissions made by counsel at the bar, fully into account.

Submissions for the appellant

[9] The appeal was presented under a number of headings, as follows:

The technical guidance note

[10] Against the background of the Scottish Government's commitment to increasing the amount of electricity generated from renewable resources and the particular landscape character types of Berwickshire, a study was commissioned by the respondents which produced a report, identified as a technical guidance report, entitled "Landscape and visual guidance on single and small groups of wind turbine developments in Berwickshire, Scottish Borders", dated October 2012 ("the TGN"). It was produced after the decision of the appointed person, dated 3 October 2012, but before the decision dated 21 March 2013 against which this appeal is taken.

[11] In its introduction, the following was stated:

"...this study has been commissioned to inform a Technical Advice Note principally for internal use by planning officers to address these issues."

At page 10, the TGN included the following text:

"In terms of guidance, the study indicates that where a landscape character type is identified as being of High or High-Medium sensitivity rating overall for any typology, it is the opinion of the consultants that no scope for that typology can be accommodated in the landscape character type without significant adverse landscape and/or visual effects."

At page 75, the area of and around the site was designated as "Character Type 19A". In relation to that character type, it was stated at page 77 that:

"There would be a High sensitivity to the large and medium typologies (turbines above 50m) and a High-Medium sensitivity to the small-medium typology (turbines 35m-50m)";

and at page 78 it was stated:

"There is some scope for the small typology (turbines 20-35m)";

and:

"No scope for the large (80m+) and medium (50m-80m) typologies has been identified in this assessment."

[12] Under reference to an email dated 18 March 2013, it was apparent that the TGN had first appeared on the respondents' website on 10 December 2012. A further email, dated 18 April 2013, stated:

"The document in question was initially prepared as a Technical Guidance Note. This was really for the benefit of Development Management Officers for guidance when dealing with the many applications for single and small groups of turbines in Berwickshire. The guidance seemed to be working well in practice and it was eventually put on our web page (perhaps 3/4 months ago?) in order that other interested parties could also view it. Ultimately it was considered that it should have more elevated status than a Technical Guidance Note in order that it could become a formal material consideration in the decision making process.

In order to achieve this, it has been re-jigged and made into Supplementary Planning Guidance. It is currently out for a 12 week public consultation and all responses to it will be reported back to the Planning and Building Standards Committee in order that they can agree the document in some capacity and effectively adopt it."

The draft supplementary planning guidance ("SPG") had been published in April 2013. At pages 46 and 47 it adopted the designated character type of the site set out in the TGN together with the following statement:

"No scope for the large (80m+) and medium (50m-80m) typologies has been identified in this assessment."

At paragraphs 1.5 - 1.7 there was recognition of the facts that the TGN had proved to be useful to planning officers and had operated well in practice during its initial trial period.

[13] There was no reference to the TGN in the body of the decision and it was not listed in it as a document which had been taken into account by the LRB. Under reference to the case of Bova and Christie v The Highland Council and BDW East Scotland Ltd [2013] CSIH 41, paragraphs 56-57, and the need to demonstrate a real possibility that had a relevant consideration been taken into account, a different decision would have been reached, it was submitted that proper consideration of the TGN would have produced a different outcome. Any suggestion that the TGN was not taken into account because it did not comprise part of the review documents before the LRB carried no weight, since it necessarily involved reliance on the part of the respondents of their own failure in that regard. It was no answer to assert that other advisory documents had been taken into account in circumstances where the TGN provided specific guidance on the significance of the proposed type of development to the site.

Cumulative Impact
[14] It was submitted that by failing properly to apply and interpret the development plan in this respect, the LRB erred in law by failing to apply the correct statutory test. In that regard, sections 25 and 37 of the 1997 Act created a presumption in favour of the development plan and the requirement to have regard to its provisions. In doing so, the decision maker required to make a proper interpretation of them (City of Edinburgh Council v Secretary of State for Scotland 1998 SC 33, at 44G-H).

[15] Policy I20 of the current structure plan included the following terms:

"Wind Energy Development

Proposals for wind energy development will be assessed against the following criteria:

(i) impact on the landscape character of the area and neighbouring Structure Plan Areas as guided by Landscape Character Assessment...

(vi) any unacceptable cumulative impacts."

Although other policies, such as policy E16 of the structure plan and policy D4 of the local plan were referred to in the main body of the decision, there was no express reference to policy I20. Although the LRB may have considered policy I20(i) in the context of the application of policy D4 (Renewable Energy Development), there had been no consideration of policy I20(vi). There was no doubt that the two criteria were different. In contrast to what the LRB had done, the appointed person, in the decision dated 3 October 2012, had expressly considered the two criteria, separately, and in relation to "Landscape and Visual Impact (Cumulative)" had found that "the cumulative visual effects are particularly high and alarming" and that the proposal would exacerbate the potential overburdening of the landscape unacceptably. There was a need in assessing cumulative impact to consider whether the eventual limit of acceptable development had been reached. The terms of the respondents' adopted SPG: "Wind Energy", May 2011, ("SPG: May 2011"), at paragraph 7.15, included the following text:

"The assessment of cumulative impacts will therefore be particularly relevant to small scale wind energy developments..."

[16] Against that background, although the decision made reference to "cumulative visual impact", it was in the context of the appointed person's stated reasons for refusal of the application. There was nothing in the decision to suggest that the LRB had made any findings of their own in relation to cumulative impact and no basis to infer that they had. In circumstances where the appointed person had found the cumulative impact of the proposed development to be unacceptable, the LRB had given no explanation as to why, in that regard, a different view had been reached. A finding on cumulative impact was necessary as part of the balancing exercise required by policy D4.

Residential amenity
[17] Under reference to City of Edinburgh Council (supra), Di Ciaccia v Scottish Ministers 2003 SLT 1031 and Tesco Stores (supra), the LRB had erred in law, in this respect, by failing properly to interpret and take account of policy H2 of the local plan. Paragraph 190 of Scottish Planning Policy 2010 ("SPP 2010"), states:

"A separation distance of up to 2km between two areas of search and the edge of cities, towns and villages is recommended to guide developments to the most appropriate sites and to reduce visual impact..."

It was notable that, in contrast to the decision under appeal, the appointed person, in his decision dated 3 October 2012, had set out the relative distances referable to the site (the two proposed turbines would be respectively approximately 650m and 1200m from the southwest fringes of Cockburnspath Village). SPG: May 2011, at paragraph 6.4, states that among the points to be considered in relation to policy D4 is, under the heading "10 Communities and Residencies", the following:

"There would be an initial presumption against any turbine within this distance (2km) from any residence unless an applicant can confirm factors such as scale, location and intervening landform can allow support."

Although in the decision, policy H2 is listed as a determining issue in the review and SPP 2010 and SPG: May 2011 are listed as material key considerations taken into account, the LRB provided no reasons bearing on the issues of residential amenity and how the presumption against such development within 2km of any residence had been overcome. By failing properly to apply policy H2, the LRB had failed to take into account a material consideration.

Economic Benefits
[18] This issue concerned the application of policy D4 of the local plan. While it was accepted that there was room for a degree of planning judgment in the necessary balancing exercise required to assess whether the wider economic and environmental benefit which the development would contribute outweighed the potential damage to the environment, nevertheless it was submitted that the scope of such planning judgment should be narrow where there was a need for substantive review, involving an intense degree of scrutiny, of this aspect of the decision. Reference was made to article 11(1) of Directive 2011/92/EU and to the findings and recommendations of the Aarhus Convention Compliance Committee in the case of ClientEarth, ACCC/C/2008/33, at paragraph 125.

[19] In the second paragraph of page 3 of the decision it was stated that the LRB:

"did not fundamentally contradict the appointed officer's assertion that there would be adverse visual and landscape impact and that this may be significant."

However, there were no stated findings as to the level of adverse impact. In that regard, it may have been significant that despite a request for one, the LRB chose not to make a site inspection. In Moray Council v Scottish Ministers 2006 SC 694, at paragraph 36, the significance of a site inspection in providing a solid basis in fact for such judgments was recognised. In the subsequent paragraph of the decision, which dealt with a consideration of the wider economic benefit, the references to the businesses concerned, their possible development and their energy requirements were vague, apparently confused and provided no specification. The LRB had failed to identify the material factors to be assessed on each side of the necessary balancing exercise. The decision included no finding as to the actual energy requirements of the businesses concerned and made no reference to any consideration of economic disbenefit. There was evidence to suggest that the presence of the proposed wind turbines would have an adverse economic impact on the local housing market. The limited terms of the decision indicated that policy D4 had been applied on the basis of inadequate considerations. Since in such circumstances a proper balancing exercise could not be achieved, the decision was perverse.

Proportionality
[20] The sheer size of the proposed wind turbines, being 110m high to tip, placed them firmly in the category of large scale as defined by paragraph 7.5 of SPG:May 2011 and by paragraph 2.7 of the TGN. The planning permission granted would subsist for 25 years. In circumstances where it appeared to be the case that only six per cent of the power generated by the proposed wind turbines would be used by the applicant business, the LRB had given no consideration to the possibility of the use of small turbines for which, in terms of the TGN, there was acceptable scope. The issue of the disproportionate nature of the proposal had been raised in at least one objection letter. It was integral to the consideration of principle S1 (Environmental Impact) of the structure plan and policy H2 (Residential Amenity) of the local plan. A failure to interpret and apply the relevant provisions of the development plan rendered the decision open to challenge (City of Edinburgh Council (supra)).

[21] Further, since the respondents were a public authority, section 6 of the Human Rights Act 1998 applied to the extent that article 8 ECHR rights to a private, family and home life were engaged. In that regard the justification for interference required by article 8(2) necessarily imported the concept of proportionality and the least restrictive alternative principle: a measure was not necessary if its aim could be achieved by a less restrictive means. Reference was made to Powell and Raynor v The United Kingdom 12 EHRR 355 at paragraph 40; A Guide to Human Rights Law in Scotland, 2^nd ed, Reed and Murdoch at paragraph 6.21; and Fadeyeva v Russia [2005] ECHR 55723/00, at paragraph 128. The LRB had failed to consider whether there was article 8 interference, had failed, in the context of assessing whether it was justified, to demonstrate that the relevant test had been addressed, and in that regard had failed to apply due diligence.

Natural justice

[22] Although in terms of regulations 12 and 13 of the 2008 Regulations, the LRB had a discretion as to the procedure to be followed, that discretion was not to be examined in a vacuum, but rather in the context of article 6 ECHR rights and the requirements of natural justice. Reference was made to Pairc Crofters Ltd v The Scottish Ministers 2013 SLT 1031, paragraph 42. The requirements of natural justice were not fixed. There had been two separate procedural improprieties in that, first, the appellant had been denied the opportunity to be heard and, second, no site inspection had been made.

[23] In relation to the right to be heard, reference was made to R (Khatun) v London Borough of Newham [2005] QB 37, at paragraph 30; Pairc Crofters (supra), at paragraph 30; and Kanda v Government of Malaya [1962] AC 322, 337 in which Lord Denning stated:

"The rule against bias is one thing. The right to be heard is another. These two rules are the essential characteristics of what is called natural justice. They are the twin pillars supporting it."

Regulation 10 of the 2008 Regulations sets out certain requirements of notice to interested parties following notification of a review and regulation 10(3), in particular, stipulates the content of such notice. In the review which is the subject of this appeal, the notice which was sent to interested parties, a letter dated 8 January 2013, included the following terms:

"The meeting will be held in public and any person can attend and listen to the review. However, there is no right to be heard at this meeting.

The Local Review will be considered on the basis of the information and documentation submitted with the Notice of Review. There is no opportunity to raise matters or submit further documents unless the review hearing requests further written evidence, or information is requested as part of a hearing session..."

Intimation that there is no right to be heard and no opportunity to raise matters or submit further documentation does not form part of the content of the notice as stipulated by Regulation 10 of the 2008 Regulations or by paragraph 32 of Scottish Planning Series Circular 7/2009: "Schemes of delegation and local review". In the event, the LRB did not request further information. However two new important matters had arisen since the decision of the appointed person: first, the position in relation to noise, one of the original grounds of refusal, had changed in the intervening period, as had been indicated on the respondents' website; and second, the TGN had emerged and was being used by planning officers. In these circumstances, the LRB erred in failing to allow a right to make further representations.

[24] The power to make a site inspection is conferred by regulation 16 of the 2008 Regulations and recognised by paragraph 40 of Planning Circular 7/2009. The LRB had in fact received a request to make a site inspection but had refused to do so. The decision did not include any reasons for that. Given the recognised benefits of a site inspection (Moray Council (supra), at paragraph 36) ( an earlier LRB in determining a previous application in respect of the site - Local Review Reference 10/00042/RREF, decision dated 7 March 2011 - had expressly confirmed the benefit derived from making one) and the importance of the application of policy D4 to the review decision, the failure on the part of the LRB to make use of the relevant power conferred on it in that regard amounted to a breach of natural justice.

Reasons
[25] It was incumbent on the LRB to give proper reasons and to set out the material considerations which had been taken into account (section 43A(12) of the 1997 Act; regulation 21(2)(a)(viii) of the 2008 Regulations; Wordie Property (supra), at 348). The extent of the duty to give proper reasons was influenced by context. Here, on an important and controversial planning matter, the reasons given were minimal, extending in effect only to four substantive paragraphs, failed to deal with the issues raised in the submissions set out above, and left the reader in substantial doubt as to what matters had been taken into account.

Prejudice
[26] It was submitted that if, notwithstanding the failure to meet the requirements set out in Wordie Property (supra), there was a need for the appellant to demonstrate resulting prejudice, then, in all the circumstances of the case, the first and third causes set out in South Bucks District Council and another v Porter (No 2) [2004] 1 WLR 22, per Lord Bridge at paragraph 30, were applicable.

Materiality
[27] It was submitted that the failures on the part of the LRB to take into account the TGN, cumulative impact and proportionality, properly to apply policies H2 and D4, and to allow further representation, were of such a degree of magnitude that, had they not been made, there was a real possibility that a different decision would have been reached.

Submissions for the respondent
[28] At the outset it was important to note that the intention behind the changes introduced by the 2006 Act, resulting in section 43A of the 1997 Act, was to simplify and expedite planning decisions in relation to small scale local developments. The purpose of section 43B of the 1997 Act was to limit consideration of new matters not raised before the appointed person. Planning Circular 7/2009 set out the scheme of review. Reference was made to paragraphs 23, 24-27, 28, 31-33, 35, 38 and 40 of the circular. The 2008 Regulations set out the powers of an LRB. In that regard, specific reference was made to regulations 7, 9, 10, 12, 13, 16 and 21. In particular, regulation 12 allows an LRB, where they consider that the review documents provide sufficient information to enable determination of the review, to determine the review without further procedure. The term "review documents" is defined by regulation 2. In the decision, under the heading "Preliminary Matters", the LRB had listed the documentation examined by them. In the event, the LRB had considered all relevant documents and had determined the review in accordance with regulation 12. The decision specifically listed the policies, including those referred to on behalf of the appellant, which had been taken into account. The LRB had complied with sections 25 and 37(2) of the 1997 Act by having regard to all material considerations.

The TGN
[29] It was accepted that the LRB made no reference in the decision to the TGN and that it had not been taken into account. Annex A of Planning Circular 4/2009 set out guidance on material considerations. At the time of the decision, the content of the TGN was not a material consideration. It was not guidance of the type to which reference was made as the sixth example of paragraph 5 of Annex A to the circular. The draft SPG derived from the TGN was not supplementary guidance for the purposes of section 22 of the 1997 Act. Once adopted, the draft SPG would have the status of a material consideration because it would then comprise part of adopted council policy but until then, and as at the date of the decision, it was simply a TGN which was trialled in December 2012. Although as a TGN, it was said to have been used by planning officers and to have proved useful, it was necessary to recognise that the limit of its use at that time was for the purpose of its trial.

[30] In any event, the thrust of the TGN in relation to the site was that it was an area of high sensitivity in which the erection of large wind turbines would have an adverse impact. That was apparent from other documentation before the LRB comprising part of the review documents, in particular the Borders Landscape Assessment, 1998, by ASH Consulting Group at pages 136 and 137, and SPG: May 2011. The LRB was therefore aware of the position. Further, the LRB explicitly recognised in the decision the strong views on the matter held by the appointed person, as set out in his decision dated 3 October 2012, when refusing the application for that reason. That being the case, the content of the TGN would have added nothing to what the LRB already knew as the result of the documentation which was before them and, accordingly, it could not be said that reference to it would have introduced the real possibility of a different conclusion being reached. For authority on the proposition that a decision is not challengeable in circumstances where a matter not taken into account would make no difference to the determination, I was referred to Bolton Metropolitan Borough Council (supra) at 343, and Bova and Christie (supra) at paragraphs 50, 53, 56 and 57.

Cumulative impact
[31] It was accepted that the visual and landscape impact, on the one hand, and cumulative impact, on the other, identified in Policy I20, were different and separate criteria. However, the LRB had taken both into account. The decision made express reference to the policy and to SPP 2010, paragraphs 182-195, as matters taken into account, and the second paragraph of page 3 of the decision made reference to the two criteria separately. The LRB had accepted the appointed person's findings on adverse impact. That being so, in circumstances where his decision comprised part of the review documents, as the Report on Handling, there was no requirement to duplicate what he had already set out.

Residential impact
[32] The presumption against wind farm development within 2km of cities, towns and villages emerged from two policy documents: SPP 2010, paragraph 190 and SPG: May 2011, at pages 32 and 37. The general guidance set out in SPP 2010, referable to the issue of renewable energy, did not constitute a blanket restriction on such development. The guidance set up an initial presumption, not a prohibition. The same was true of SPG: May 2011. The guidance was designed for application in the process of identifying, in the development plan, areas that might be suitable for wind farm development, but any one individual application still required to be assessed on its own merits. The matter did constitute a relevant material consideration and, in the express terms of the decision, had been taken into account. The LRB had the benefit of, as part of the review documents, the decision of the appointed person which explicitly highlighted the issue of proximity, and the facts relating to it, at pages 2 and 4.

Economic benefit
[33] Paragraph 2 of Policy D4 includes the following:

"...If there are judged to be significant adverse impacts that cannot be mitigated, the development will only be approved if the Council is satisfied that the contribution to wider economic and environmental benefits outweighs the potential damage to the environment or to tourism and recreation."

Since the LRB had gone about the process of assessing whether economic benefits outweighed damage to the environment, it followed that it had accepted that there would be significant adverse impacts. Although the language used was loose in some respects ("energy requirements" should be interpreted as "energy consumption", and "the quarry" should be interpreted as "the operators of the quarry"), the LRB had recorded its approach to the matter in the third and fourth paragraphs of page 3 of the decision. The context of the need for the necessary balancing exercise was the background of government policy and stated targets in relation to renewable energy, as set out at pages 5 - 7 of the Environmental Statement which had been before the LRB. The benefit of the proposed development was set out at section 3.7 of the Notice of Review and in the Environmental Statement (vol. 2, ch. 3). The reference in the decision to "expansion of ... extraction operations" was a reference to the previous approval for the construction of a connecting access track between two quarries, referred to by the appointed person in his decision, under "Planning History: 09/00125/MIN", and would have been clear to the informed reader. In the application of policy D4, the decision was clear, took account of all relevant material considerations and contained no error of law.

Proportionality
[34] Insofar as it was suggested that the scope of judgment in relation to such an application might be narrowed, it was important to recognise that the concept of proportionality was inherent in the planning system and did not require consideration as a separate criterion. Within the planning system there was always conflict between development and private interest, but no one interest was to be regarded as paramount and, as set out at paragraph 6 of Planning Circular 4/2009, the question was what would best serve a long term public interest not whether occupiers of neighbouring properties would experience financial or other loss. Private interest, itself, was not a material consideration.

[35] As to the relevance of article 8 rights in the planning process, reference was made to Lough and others v First Secretary of State [2004] 1 WLR 2557, at paragraphs 45, 46 and 49-52. Where the appropriate balancing exercise was carried out correctly in accordance with procedure, then the requirements of article 8 were met. The planning system included the concept. There was no need for separate consideration of human rights and no need for an LRB to state explicitly in a decision that they had been taken into account. In this context, a loss of property value does not in itself constitute a breach of article 8. Further, it was not a requirement of the planning system that before any development could be permitted, it must be demonstrated that its objectives could not be achieved in some other way.

Natural justice

[36] As to whether there had been a procedural impropriety in relation to the curtailing of the right to be heard and the decision not to make a site inspection, it was necessary to recognise the content of sections 43A and 43B of the 1997 Act. Against the background of the statutory intention to streamline planning procedure, the plain effect of section 43B was that an LRB should consider only those matters which were before the appointed person unless a relevant new matter has arisen. In this case there had been no significant new matters arising. A cumulative noise impact report, not taken into account by the appointed person, had been included in the Notice of Review but was not material to this appeal. The suggestion that the TGN constituted a relevant new matter was rebutted. In accordance with the submission for the respondent on the point, the TGN was not a material consideration.

[37] The reference in the letter of 8 January 2013 to there being "no right to be heard at this meeting" was simply a reflection of the decision taken by the LRB under regulation 12 of the 2008 Regulations. Practice suggested that in most cases LRBs would decide to proceed in that way. The fourth paragraph of the letter set out the circumstances in which new matters could be raised, all in accordance with section 43B.

[38] The decision not to make a site inspection was not a procedural error. It was clear from the terms of regulation 16 that it was a matter for the LRB. The note of the meeting of the LRB confirmed that visual representations, in the form of a slideshow, were presented. It was of interest that the request for a site inspection had come from the interested party. As was plain from the terms of the decision, the LRB agreed with the appointed person that there would be a significant adverse impact. In these circumstances, it could not be said that the decision not to make a site inspection was unreasonable or that if a site inspection had been made it would have altered the outcome of the review.

Reasons
[39] In considering the adequacy of the reasons set out in the decision, it was necessary to have regard to the context of the new statutory procedures and how they impact on the requirements for stated reasoning. Here, in reversing the decision of the appointed person, the LRB had made a different decision, based on planning judgment, when weighing the economic benefits against significant adverse impact. In doing so, as set out in the decision, they had regard to the terms of the Report on Handling, the Notice of Review, the Environmental Statement, and the SPP of 2010, all of which formed part of the review documents.

Submissions for the interested party
[40] Counsel for the interested party adopted the submissions for the respondent and in doing so, characterised the appeal as, in essence, a reasons based challenge. On that basis, the general principles applied. The decision should not be construed as though it was a conveyancing document. It was to be read through the eyes of an informed reader who was aware of the relevant circumstances and background facts. The important matter was whether it could be said that an objector would be prejudiced by a lack of stated reasoning such that he would be unable to understand why the decision had been taken. The context of the decision in Wordie Property had been consideration of a report and a decision by the minister referable to a reporter's decision. Since 2009, a different system, involving LRBs, had been introduced with its own regulatory requirements. The principles set down in Wordie Property had to be applied with that new context in mind. Where, as here, the decision was based on a planning judgment, it was difficult for a decision maker to do more than state the decision, make it plain that the decision involved a different planning judgment from what had gone before, and provide sufficient information to allow the informed reader to be aware of the considerations taken into account when the balance was struck. Although, under the review procedure, reasons must be produced, where the previous decision was reversed all that was required of an LRB was confirmation of how their decision differed from what had gone before. The reasons for the decision were to be found not just in the decision itself but in the Report on Handling and the other documents statutorily identified as forming part of the review process.

The TGN
[41] The status of the TGN at the relevant time was as submitted on behalf of the respondents. In any event, in circumstances where it was accepted by the LRB that the site was one of high sensitivity, the content of the TGN would have added nothing to what was taken into account. The landscape character type of the site and its high sensitivity was set out in the ASH Consulting Group report of 1998 and in the Report on Handling. Accordingly, it could not be said that the LRB had failed to take that into account.

Economic benefits
[42] In conducting the necessary balancing exercise and reaching a decision different from that of the appointed person, the LRB had regard to the Report on Handling, the Environmental Statement and the Notice of Review. In particular, the facts relevant to economic and environmental benefits were set out in the Environmental Statement (Vol. 2) at paragraph 2.5.27 (the benefit to the national grid of the energy generated); paragraph 3.6.11 (security of energy supply); paragraphs 3.7.1-7 (future sustainability and socio-economic benefits); paragraph 5.3.43 (application of policy D4 where significant adverse impact); and in the Notice of Review at paragraph 3.7.5 (additional advantages of wind generation). All of these matters were specifically drawn to the attention of the LRB which had carried out a balancing exercise such that no informed reader could be left in doubt (Save Britain's Heritage (supra) at 167G-H). The decision expressly stated that the LRB determined that it had sufficient information to determine the review.

Natural justice
[43] The letter dated 8 January 2013 was appropriate in its terms. The reference to making representations was to be interpreted as a reference to representations in writing, which was consistent with the fact that notice was being given in relation to a "meeting", rather than a "hearing" where oral submissions would be heard. The references in the letter restricting the raising of matters were entirely consistent with the terms of section 43B(1). In circumstances where the LRB found that the site would be subject to significant adverse impact, no additional benefit would have been obtained by a site inspection.

Discussion
[44] The changes introduced by the 2006 Act, by inserting section 43A and section 43B into the 1997 Act, created a new planning procedure in relation to local development. In the new structure, the initial decision of the appointed person, normally a planning officer, is deemed to be a decision of the planning authority and must include a statement of reasons. By section 43A(8) a disappointed applicant has a right of review, to be conducted by an LRB which in turn must issue, in terms of section 43A(12), a notice which must include inter alia (i) the terms in which the planning authority has decided the case reviewed, and (ii) the reasons on which the authority based that decision. It is significant that what is to be carried out is a review and not an appeal. In contrast to an appeal to the Scottish Ministers under section 47, there is no provision to the effect that the application is to be dealt with by the LRB as if it had been made in the first instance. The original determination by the appointed person comprises part of the review process, as the Report on Handling. There is no provision to the effect that the appointed person's reasons are not to be taken into account in the review, or that they cannot form part of the reasons on which the LRB base their decision. The review documents, as defined in regulation 2 of the 2008 Regulations, are the original decision notice, the Report on Handling and any documents to which reference is made in it, the Notice of Review and all documents, materials and evidence on which the applicant intends to rely, and all representations by interested parties. Regulation 21(a)(viii) stipulates that following the decision by an LRB, a decision notice must "include details of the provisions of the development plan and any other material considerations to which the local review body had regard in determining the application."

[45] The reasons of the appointed person in this case, set out in the Report on Handling, comprise a comprehensive document which lists the relevant planning considerations, policies and guidance, and set out in some detail a full description of the site, including reference to the proximity of the proposed turbines and the relevant distances, the fact that the site was within a category 19 area, the height of the turbines, the planning history, the sensitivity of the landscape and concerns in relation to amenity. It includes identification and a thorough assessment of the likely impact of the proposed development, conclusions and a recommendation to refuse planning permission.

[46] Although the reasons stated in the decision of the LRB are relatively brief, I consider that it is not appropriate to compare it in that regard with the decision of the appointed person. While it is tempting to approach the question of the adequacy of the reasons of the decision of the LRB as one might approach, in other appeals against planning decisions, the decision of a reporter, something to which the decision of the appointed person is more akin, the decision of the LRB must be assessed in its own context within the statutory structure of which it forms part. The combined effect of regulations 10, 12 and 21 of the 2008 Regulations is that notice is given of how the review documents may be inspected, confirmation may be given, as in this case, expressly in terms of the decision, that no other information formed part of the review, and the provisions of the development plan and any other material considerations, taken into account by the LRB, are listed in the decision. These arrangements are clearly designed to ensure that the extent of the matters taken into account and their content is transparent and easily confirmed. These matters may be included in the decision by reference but nevertheless they form part of it. Taking account of the significance of the review documents in that context, I accept that the content of the reasons of the decision may be found not just in the decision itself but in the Report on Handling and the other documents statutorily identified as forming part of the review process. Where an LRB reaches a decision different from that of an appointed person, there will inevitably be aspects of the case in respect of which similar views are reached as between the first and second decisions, and others where differing views are reached. In such circumstances, having regard to the effect of the statutory context by which the previous decision and the matters taken into account are easily accessible, it would be pedantic to require the LRB to restate these aspects of the appointed person's decision which are accepted. I consider that all that is necessary, within the statutory structure of review specifically set up for local developments of this kind, is that the decision of the LRB should make plain what are the reasons for reaching a different decision. Such an approach is consistent with the views expressed in Uprichard v Scottish Ministers 2011 CSIH 59, per the Lord Justice Clerk (Carloway) at paragraph [26]:

"[26] In a case where the adequacy of reasons is challenged, the court should consider whether the informed reader would understand the basis for the decision complained of. Reasons must be intelligible and must deal with the substantive points that have been raised; but in my opinion it is important to begin by considering the nature of the decision complained against and the context in which it has been made. In a case of this kind it is also important to assess the adequacy of the reasons on the basis that they are addressed to persons who are familiar with the background and the issues.",

and in the same case, in the decision of the Supreme Court, [2013] UKSC 21, per Lord Reed, at paragraphs 44 and 48:

"44. In considering the adequacy of the reasons given for a decision, it is necessary to take account of a number of matters, including the nature of the decision in question, the context in which it has been made, the purpose for which the reasons are provided and the context in which they are given."

"48. It is in addition important to maintain a sense of proportion when considering the duty to give reasons, and not to impose on decision-makers a burden which is unreasonable having regard to the purpose intended to be served."

[47] As regards the issue as to whether the decision is ultra vires by reason of a failure to take into account a material consideration (Di Ciacca v Scottish Ministers (supra), at paragraph 29; sections 37(2) and 43B(2) of the 1997 Act; regulation 21(2)(a)(viii) of the 2008 Regulations) in the shape of the TGN, the status of the document was at the heart of the issue between the parties. I accept that at the time of the decision, notwithstanding the intention that it should be given the elevated status of SPG, the draft SPG had not yet been published for public consultation and, accordingly, that status had not yet been achieved. I accept that for the respondents' purposes, therefore, the TGN was not a policy document at that time. It had not been produced at the time of the decision of the appointed person and so, unsurprisingly, no reference to it is made in that document, but it was not submitted to the review by the appellant or any other interested party and it did not form part of the review documents. I accept that although it had been used by planning officers and had been found to be useful, that was as part of a trial process prior to publication of the draft SPG. In these circumstances, where the TGN was not a policy document, I do not find the decision to be ultra vires by reason of it, per se, not being taken into account. I also accept, however, that the landscape character of the site, its sensitivity, and the indicated adverse landscape impact, consistent with the content of the TGN, were material considerations. In that regard, it appears to me that those matters were taken into account. The same information was available to the LRB from other sources available to them, namely the Borders Landscape Assessment, 1998, SPG: May 2011 and the Report on Handling with which, on these issues, the LRB agreed. In that regard, it is significant that both the Borders Landscape Assessment and SPG: May 2011 were taken into account by the appointed person. On that basis, I do not agree that it can be said that these relevant material considerations were not taken into account. Similarly, in these circumstances, I do not find that if the TGN had been taken into account, a different outcome would have resulted. In the event, a different outcome resulted because, unlike the appointed person, the LRB took the view that the economic benefits were such as to outweigh the adverse impact on the environment. On a fair reading of the decision, it is clear that the LRB were fully aware of the adverse effect which was of concern to the appointed person. That being so I find that the content of the TGN, even if taken into account, would have added nothing new to the matters under the consideration.

[48] As regards the application of policy I20 in relation to cumulative impact, it is to be noted that the decision lists that policy and SPP10, paragraphs 182-195, as matters taken into account. The Report on Handling included an assessment of cumulative impact in some detail. On the approach to the assessment of the adequacy of the reasons of the decision which I consider to be the appropriate one, as set out above, I find that the asserted error in law, by failing to apply the correct test in that regard, is not made out. The matter was set out in the Report on Handling and, since the LRB agreed with the ultimate findings of the appointed person in relation to adverse impact, it was, in my view, unnecessary for the LRB, in that regard, to make separate findings of its own.

[49] Similarly, policy H2, concerning the protection of residential amenity, is listed in the decision as a matter taken into account and reference was made to it in more detail in the Report on Handling. It was accepted that the presumption against development within 2km of residential settlement was a material consideration. Again, on the approach to the decision which I have adopted, I do not find that in this regard the LRB have fallen into error. The appointed person dealt fully with the issue by taking into account the nature of the site, the issue of proximity and the size of the proposed turbines. The acceptance by the LRB of his conclusions as to adverse impact must be interpreted as being informed by his assessment of these factors. In such circumstances, it was unnecessary for the LRB to make findings of their own or to restate his findings. In any event, to the extent that the principal issues are referred to, it is not incumbent on such a decision maker to refer in its reasons to every material consideration (South Bucks (supra) at paragraph 36).

[50] The LRB dealt with policy D4 and the weighing of economic benefits against adverse impact on the environment at the third and fourth paragraphs of page 3 of the decision. The policy is listed in the decision as one taken into account. The LRB agreed with the findings of the appointed person as stated in the Report on Handling that there would be an adverse impact in what is an area of high sensitivity. The economic factors which were relevant and constituted the other side of the balance were set out in the review documents, all as described at paragraph [42] (supra). It was said for the appellant that the decision in this respect was perverse because of inadequate consideration of the relevant material factors on each side of the balancing exercise and that the LRB erred in law by failing properly to interpret and apply policy D4. I disagree with that proposition. Having regard to the structure of the review process, I consider that an informed reader would recognise that the LRB, in determining that the economic benefits were such as to outweigh adverse impact on the environment, had been persuaded of the value of these economic benefits as set out in the review documents. In that context, since the LRB agreed with the appointed person on the issue of adverse impact, I am not persuaded that the decision not to make a site inspection amounted to an error on their part in this regard. Given the clear and emphatic assessment of the position as stated in the Report on Handling, I consider that a site inspection would not have added anything to what ultimately was an exercise of planning judgment. In the light of the statutory scheme, it was unnecessary for the LRB to make its own findings as to adverse impact. Reading the decision as a plain statement rather than with the acute eye of a conveyancer, I consider that the language used, though no doubt open to criticism in some respects, is nevertheless not so abstruse as to compromise meaning for the informed reader. The references to energy "requirements", "the quarry" and "expansion" are not such, assessed in that way, as to demonstrate errors of fact on the part of the LRB.

[51] As regards the issue of proportionality, I recognise that the concept is inherent within the planning system and that, in any planning decision, the interests of any one party, consistent with paragraph 6 of Planning Circular 4/2009, can never be more than one of a number of considerations to be weighed in the assessment of each case on its own merits. As regards the size of the proposed turbines and the amount of energy to be generated by them relative to the energy consumption of the operators of the quarry, I consider that the issue of any benefit to the national grid was a matter which the LRB were entitled to take into account in assessing the wider economic and environmental benefits against the background of the general policy to promote renewable energy development. Consideration of these matters was part of the planning judgement undertaken by the LRB in that regard. As regards the relevance of article 8 rights in the planning process, the position is settled, as stated in the case of Lough (supra), at paragraphs 45, 46 and 49-52. Where the relevant balancing exercise is carried out correctly in accordance with procedure, then the requirements of article 8 will be met. Since, in the present case, I find that the LRB has acted appropriately, I find that no issue in that regard arises.

[52] I find that the LRB did not act unfairly or breach natural justice by failing to allow further representations or by failing to hold a site inspection. As regards the former, the advice given in the letter dated 8 January 2013 was entirely consistent with the statutory provisions of section 43B of the 1997 Act and regulation 12 of the 2008 Regulations and, in any event, no significant new matters arose. The issue which related to the noise report, as assessed by the environmental health officer, was a matter not germane to this appeal, and for the reasons which I have stated, I consider that the TGN was not something which the LRB were required to take into account. That being so, to allow further representations would have been contrary to the provisions of the statutory scheme. As regards the latter, it was entirely a matter within the discretion of the LRB as to whether a site inspection was appropriate. For the reasons I have stated, I do not consider that by opting not to conduct one, the LRB fell into error. Nor do I consider that in either regard, the LRB acted unfairly.

[53] As I have stated, in considering the adequacy of the reasons in the decision, it is necessary to have regard to the new statutory context in which an LRB operates. Notwithstanding that, the well-known tests remain applicable, but should be applied with that context in mind. Within that context, the recognised principles apply. Thus, the setting out of the reasons by which a decision is reached does not require an elaborate philosophical exercise or consideration of every issue raised by the parties, and so long as the reasons are intelligible and adequate, they can be expressed concisely and be confined to the determining issues. (Moray Council (supra) at paragraph 30). As expressed in South Bucks (supra) at paragraph 36:

"Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced."

On that approach, applied to what is an innovative statutory structure, I find that the LRB did not fail to take into account a material consideration, did not err in law by failing properly to interpret and apply policies, did not base their decision on errors of fact and did not breach natural justice. I do not consider the decision to be perverse. In the statutory context in which it is to be assessed, I find that the reasons for the decision are proper, adequate and intelligible and not such as to leave an informed reader in real or substantial doubt as to what the reasons for the decision were and what were the material considerations taken into account in reaching it.

Decision

[54] Whilst I have some sympathy for the appellant who clearly feels strongly about the decision and its effect on her local community, it should be recognised, given my decision, that the matter was ultimately one of planning judgment. The role of the court is not to deal with the merits of the decision, in that sense, but rather to determine the legality of the decision-making process. In that regard, for the reasons I have stated, I am not persuaded by the arguments presented on behalf of the appellant. I am satisfied that the decision was within the powers of the 1997 Act. Accordingly, I refuse the appeal.

[55] In light of the Protective Expenses Order which is in place, I reserve all questions of expenses, meantime.