Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 37

XA113/14

Lord Menzies

Lord Bracadale

Lord Malcolm

OPINION OF THE COURT

delivered by LORD MALCOLM

in the appeal

by

LOCH HILL WINDFARM (SCOTLAND) LIMITED

Appellant;

Under the Town and Country Planning (Scotland) Act 1997, section 239

against a decision dated 4 July 2014 taken by a reporter of the Directorate of Planning and Environmental Appeals on behalf of the Scottish Ministers

Act:  J Campbell QC;  Wright Johnstone & Mackenzie

Alt:  J Mure, QC, D Byrne;  Scottish Government Legal Directorate

5 May 2015

[1]        This is an appeal by Loch Hill Windfarm (Scotland) Limited (Loch Hill) against a delegated decision taken by a planning reporter dated 4 July 2014.  Loch Hill’s application for planning permission for an eleven turbine windfarm and associated development at a location near Lochinvar, some four kilometres north east of St John’s town of Dalry, was refused by Dumfries and Galloway Council.  There were two reasons for refusal, the first being the landscape impact of the development.  The second was the cumulative visual impact, and specifically “visual confusion”, when viewed in combination with the adjacent Knockman Hill windfarm.  In this context it was said:

“The differences in turbine size, rotor blade diameter and speed would result in visual discordance, significant in local range views, and notable in medium range views from the west, and to a lesser degree from the south west”.

The reporter decided the matter on written submissions and site inspections and agreed with the second reason for refusal.  As a result Loch Hill’s appeal to the Scottish Ministers was refused.  The appeal to this court is resisted by the Scottish Ministers.

The reporter’s decision

[2]        The reporter noted that the development is adjacent to Knockman Hill windfarm site, which had been approved by the Council.  Policy S21 of the structure plan supports renewable energy developments provided that, amongst other things, there is no significant adverse impact on the amenity of the surrounding area.  An interim planning policy adopted by the Council in 2012 shows that the appeal site is located in an area with limited potential for large scale wind energy developments.  It sets out a range of considerations for assessing proposals, including cumulative impacts.  Having additional regard to national support for wind energy, the reporter concluded that there was no policy presumption in principle against the development, provided that its environmental and cumulative impacts were within acceptable bounds. 

[3]        The reporter noted that, from most angles, the Loch Hill windfarm would appear continuous with the Knockman Hill windfarm.  The turbines would be of different heights, rotor diameter and rotor speed.  The diameter of the Loch Hill rotors would be one-third wider than those of the adjacent development, with a swept area of almost twice the size.  The change in scale would be obvious at nearby viewpoints.  The perspective could then be confusing in some views.  Smaller turbines rotate faster than larger ones.  In the reporter’s opinion, the cumulative impact would be visually distracting.  The apparent overlapping of blades of two different designs and speeds of rotation (in some views) would increase the distracting irregularity, and clutter the view.  The likely visual effects would be “discordant, distracting and ultimately disturbing”.  In terms of visual confusion, the reporter disagreed with Scottish Natural Heritage’s opinion that the proposed turbines would integrate well with Knockman Hill. 

[4]        The reporter continued by noting that the immediate vicinity of the Loch Hill turbines includes farm buildings and field patterns on a small scale, with several houses adding to the intimacy of scale.  The greatest magnitude of change would be in this localised area.  The turbines would loom large across the water of Lochinvar.  They would have a significant effect on the experience of visiting the loch.  That said, the reporter reached the view that their scale, taken in isolation, would not be inappropriate at this location.  In addition, and despite the significant impact, the proposed turbines would not be so intrusive on amenity as to make the nearby houses unattractive places in which to live. 

[5]        The reporter was of the view that the visual harm caused by the Loch Hill windfarm on its own would be acceptable.  However, when taken in combination with the adjacent development, for the reasons explained earlier, there would be harm to visual amenity which would be contrary to policy S21 of the structure plan, as well as local and national guidance on the siting and design of windfarms.  In the reporter’s opinion, acceptability in other landscape and visual terms did not outweigh this detriment.  It can be seen that, in effect, the reporter rejected the Council’s first reason for refusal but upheld the second. 

[6]        The reporter then considered other issues, including the contribution which the development would make to government renewable energy targets.  However, the Loch Hill development did not respect the established form of its neighbouring windfarm, thereby creating unacceptable cumulative impacts.  In the view of the reporter, the energy generation benefits did not outweigh this environmental damage.  The overall conclusion was that the proposal did not accord with the relevant provisions in the development plan, and that there were no material considerations justifying the grant of planning permission.

The grounds of appeal

[7]        The appeal to this court proceeds upon the basis that the reporter did not properly apply the statutory requirement that his determination be made in accordance with the development plan unless material considerations indicate otherwise.  It follows that the decision was ultra vires and should be quashed.  It is suggested that had the reporter applied policy S21 properly, he would have allowed the appeal.  The policy provides that developments of this kind “will be considered positively provided that they do not have a significant adverse impact on …(5) the amenity of the surrounding area”.  The reporter focused on whether the environmental and cumulative impacts were within acceptable bounds, however this test does not appear in either policy S21 or the Council’s interim guidance.  The sole reason for refusal was cumulative harm to visual amenity, but there was no assessment as to the degree or extent of this harm.

[8]        The nub of the grounds of appeal is to be found in paragraphs 16 and 17.  It is said that the reporter failed to analyse the relevant development plan policy and to weigh the extent of compliance or otherwise.  The reporter “failed to identify and give weight to the existence of any material considerations which might indicate why a development plan assessment pointing to grant or refusal might be decided otherwise”.  He ignored the policy upon which he relied for his determination.  There being no finding of significant adverse impact against any of the criteria listed in policy S21, and no finding of a contravention of any test set out in the interim policy, the reporter’s conclusions of non-compliance with the development plan and the absence of contra-indicating material considerations were “unintelligible” and cannot be sustained.  None of the findings of visual discordance, distraction, confusion and disturbance were assessed as either significant or adverse.  In the circumstances the development plan had not been contravened.

[9]        The court is asked to affirm that, having regard to the terms of section 239 of the Town and Country Planning (Scotland) Act 1997, the decision was not within the powers of the Scottish Ministers, and separately, that the relevant requirements of the Act were not met.

The appellant’s note of argument

[10]      In Mr Campbell QC’s note of argument it is submitted that, given the positive findings made by the reporter in respect of landscape impacts, and having regard to the decisions as to the scale and visual harm of the Loch Hill turbines when taken on their own, it was “illogical” to find that the proposal in combination with its neighbour would cause harm to visual amenity and therefore be contrary to policy S21.  There was no finding as to the significance of the purported harm nor any finding of adversity in terms of the test set out in policy S21.  The decision is said to be irrational.  The reporter’s reference to “the relevant provisions of the development plan” in the final paragraph of the decision letter was “a lazy shorthand for the purported application of a policy to a set of conclusions about individual factors in the case which are internally inconsistent and therefore incoherent”. 

Counsel’s oral submissions
[11]      In his oral submissions to the court, Mr Campbell emphasised the absence of any finding that the adverse cumulative impact was significant, something which is required by policy S21 if the presumption in favour of the development is to be overcome.  There was no explanation as to how policy S21 had been applied.  Visual confusion alone could not be enough.  The court was told that neither Mr Campbell nor his clients could understand how the reporter had reached the view that the development was not in compliance with policy S21.  Visual harm and visual effect on amenity are different things.  In the reporter’s mind everything appeared to turn upon rotor size, but without any assessment of significant adverse impact.  Policy S21 says nothing about visual confusion.  The reporter conflated visual confusion with visual amenity. 

Answers to the grounds of appeal and the submissions on behalf of the Scottish Ministers

[12]      On behalf of the Scottish Ministers it is stated that the decision had regard to relevant considerations, and, when read fairly, and as a whole, had proper regard to structure plan policy S21 and to the Council’s interim planning policy, which specifically identifies cumulative impact on visual amenity as a relevant consideration – see section 7.15.  The reporter understood the legal test and the relevant policies.  He applied them correctly, and provided adequate reasons for his decision.  In particular, at paragraphs 8-11 and 17 he explained why, when viewed alongside the adjacent Knockman Hill development, there would be harm to visual amenity contrary to the criteria within both policy S21 and the interim planning policy.  The reporter set out his views on landscape impact, residential amenity and non-cumulative visual impact in paragraphs 13-16.  The reasonable informed reader would be left in no doubt as to why the appeal was refused. 

[13]      In a note of argument it is stressed that the development required to be assessed, not simply on its own terms, but in combination with the adjacent development.  How Loch Hill would relate to Knockman Hill was a relevant consideration.  The court cannot interfere with the planning judgment of the decision-maker:  Tesco Stores v The Secretary of State for the Environment [1995] 1 WLR 759 at 780.  There is no basis for assuming that the reporter misunderstood or misapplied the terms of policy S21 and the Council’s interim guidance.  It is clear that he concluded that the cumulative effect would amount to a significant adverse impact on visual amenity, and thus the proposal was contrary to both policy S21 and the interim guidance.  It is noted that at paragraph 7.25 the interim policy highlights that variations in turbine design are more noticeable when one is close enough for direct comparison.  Reference is made to the appellant’s environmental statement which assessed cumulative impacts.  The reporter was entitled to exercise his own planning judgment on that matter and disagree with the conclusions of the author of the environmental statement. 

[14]      In his oral submissions Mr Mure QC discussed case law which explains the limited jurisdiction of the court in appeals under section 239 of the Act, and the respect which is to be afforded to the decision-maker on matters of planning judgment.  In so far as Mr Campbell had criticised the adequacy of the reasons given for refusal, it was submitted that the terms of the decision are clear, coherent and intelligible.  The reporter agreed with the Council’s second reason for refusal, and found no counter-balancing considerations which would justify granting planning permission despite a breach of a key development plan policy.

Discussion and decision
[15]      At the conclusion of the oral submissions, and after a short adjournment for reflection, the court intimated its refusal of the appeal.  We now explain our reasons, which are largely coincident with the representations made on behalf of the Scottish Ministers. 

[16]      At the outset it is appropriate to mention some of the basic principles applicable to appeals of this kind.  They are conveniently set out in Lord Gill’s opinion in Moray Council v  The Scottish Ministers 2006 SC 691 (Second Division).  In particular, decision letters are to be read in a straightforward manner recognising that they are addressed to parties well aware of the issues involved and the arguments advanced.  In our view it is obvious that the reporter agreed with the Council’s second reason for refusal, and that he concluded that this amounted to significant adverse impact upon the amenity of the surrounding area, hence his finding of non-compliance with structure plan policy S21. 

[17]      In Moray Council Lord Gill stressed that issues such as the acceptability or otherwise of landscape or visual impacts of a windfarm are “pure questions of planning judgment” which are necessarily subjective to some extent, but informed by the reporter’s professional expertise (paragraphs 34 and 36).  It is trite law that the court cannot interfere with such decisions.  The court is concerned only with the legality of the process.  It is for the decision-maker to assess the facts and weigh the relevant considerations – see the speech of Lord Clyde in City of Edinburgh Council v The Secretary of State for Scotland 1998 SC (HL) 33 at pages 44/5.   It is plain that, for all the reasons given in paragraphs 8-11 of the decision letter, the reporter concluded that the cumulative visual impacts were unacceptable, and that the benefits of the development, notably renewable energy generation, did not outweigh that detriment.  No detailed analysis or quantification of impact was required – see Lord Gill in Moray Council at paragraph 37.  It was more than enough for the reporter to explain that in his view there was non-compliance with policy S21.   

[18]      We have to accept the statement that neither Mr Campbell nor his clients can understand why the appeal was lost.  For ourselves, we have no such difficulty.  Echoing Lord Gill’s comment on the reporter’s decision in the case before him, we consider this decision letter to be a “well-constructed document in which the reporter’s reasoning is lucid and well expressed”.  We reject the criticisms that the decision was irrational, illogical and incoherent – and that any “lazy shorthand” was used.  It is not necessary to pray in aid the many decisions which emphasise that it is sufficient if the reasonable informed reader can understand the reasoning and the nature of the material considerations taken into account in respect of the determining issues.   

[19]      In the present case there is no question of any illegality or procedural impropriety such as would justify quashing the decision.  The relevant policies were addressed.  The material considerations, both for and against, were identified and weighed against each other.  Nothing of importance has been overlooked.  A reasoned decision was compiled and forwarded to the parties.  The statutory requirement to determine the appeal in accordance with the development plan unless material considerations indicate otherwise was applied.  The reporter was fully entitled to conclude that the cumulative impact on visual amenity was sufficient to render the proposal contrary to the development plan, and that, in itself, this justified refusal of planning permission.  In short, we can detect nothing which would even suggest that the reporter’s decision is susceptible to a successful legal challenge, hence the appeal was refused.