Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 20

XA65/15

Lady Dorrian

Lord Bracadale

Lord Drummond Young

OPINION OF THE COURT

delivered by LADY DORRIAN

in the Appeal

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

by

DAVID JOHNSTON

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Act:  Party

Alt:  Burnet;  Scottish Government Legal Directorate

18 March 2016

Background
[1]        This is an appeal under section 239 of the Town and Country Planning (Scotland) Act 1997 against a decision of the Scottish Ministers dated 29 April 2015 which granted permission for the erection of two wind turbines on Carrach Hill, Angus.  An earlier application by the same developers (The Carrach Wind Farm LLP) for permission to develop nine wind turbines at the site had been refused by the local authority, and again by the respondents on appeal.  The current application was refused by the local authority in September 2014, but granted by the respondents on appeal.  The appellant is a party litigant, and an application for lay assistance was granted on 2 December 2015.  The lay assistant is Mrs Susan Smith. The appellant is the proprietor of Balintore Castle, near Kirriemuir, Angus. He is concerned that the proposed development will impinge adversely on the visual impact of, and from, the castle.

[2]        Section 239 of the 1997 Act  provides that a person aggrieved by any action of the Secretary of State to which the section applies, and who wishes to question the validity of that action on the grounds that it is not within the powers of the Act, or that any relevant requirements have not been complied with, may make an application to the Court of Session.  The Court of Session, if satisfied that the action is outwith the powers of the Act, or that the applicant’s interests have been substantially prejudiced by any failure to comply with relevant requirements, may quash the relevant action.  For procedural purposes an application of this type is processed as an appeal (RC 41.1).

[3]        The actions of the Secretary of State to which the section applies include any decision of the Secretary of State to refuse an application for planning permission or to grant it subject to conditions (sections 239(4);  237(3)(b) and 47(1)(a) of the Act).

[4]        The applicant is thus entitled to appeal on the basis either that the planning appeal in this case was not conducted in conformity with the powers under the Act or that his interests have been prejudiced substantially by a failure to comply with relevant requirements. 

[5]        The grounds of appeal pose the question:

“Was the site visit made by the government reporter …, to make his decision, negligent in neither gathering nor therefore considering all appropriate and relevant evidence for the case?”

Submissions
[6]        The appellant did not assert that the decision was not in conformity with the powers under the Act.  Nor did he argue that there was a requirement to carry out a site inspection of his property, as one affected by the planning application.  He recognised that there was in fact no “requirement” that had not been complied with, and rested his case on an assertion that there was a reasonable expectation that the property would be visited.  The castle is an historically and internationally important grade A building, designed by the celebrated 19^th century architect William Burn. In purporting to take account of the visual impact which the development might have on the property it was unreasonable not to visit the castle itself.  The reporter in the prior application had done so, and had refused the application.  Public funding has been expended in its restoration yet the effect on the property has been ignored. 

[7]        Counsel for the respondent took us through numerous documents which were before the reporter, showing that one of the key viewpoints selected was adjacent to the castle, and that visualisations included a wireline drawing manipulated to 20m above ground level, to reflect the viewing platform from the castle.  It was a matter for the reporter’s planning judgement whether to make a site visit.  The question posed in the grounds of appeal is not relevant. 

The reporter’s decision
[8]        The appeal was at the instance of the developer.  The reporter records making two site visits, dated 28 November 2014 and 8 April 2015.  In his decision, he notes (tab 9, para 5) that the issue in dispute was

“whether the two turbines would result in unacceptable landscape and visual impacts, including impacts on nearby dwellings and cumulative impacts.”

[9]        On the basis of the information available to him, the reporter considered the landscape impact of the proposed development, before concluding (para 13)

“Based on my site visits and assessment of the material before me, I find the conclusions of the appellant’s landscape and visual impact to be fair.  It seems to me that these conclusions are consistent with the three landscape capacity studies.  Overall, the three landscape capacity studies do not support the assertion that two turbines of a maximum height of 47 metres would be out of scale with the landscape character type Tay 5 – Highland foothills.”

[10]      In relation to the visual impact, the reporter referred to two landscape figures which had been prepared and which showed the extent of theoretical visibility.  In practice this was “a worst case”.  The effect of topography meant that actual visibility would be less.  He noted that the area of most visibility was to the South side.  Thirteen representative viewpoints had been assessed in the environmental report, and at only one of them was the change in view considered to be significant.  The main public viewpoints would be from the local road network, and thus of short duration.  The cumulative effect would not be unacceptable, standing the distance between this and other turbine sites and the modest height of the proposal.

[11]      The reporter concluded that the development complied with the provisions of the local development plan.  Turning to other material considerations, the reporter first considered the previous appeal decision, which related to nine turbines with a maximum height of 84 metres.  The scale and extent of the overall landscape and visual impact of that proposal was altogether different.  The reporter specifically considered the effect on the property of the present appellant.  He agreed with the reporter in the earlier appeal that, at a distance of 2.8 kilometres, the issue is not the impact of the turbines on the setting of the property, but the visual impact viewed from the property itself, which had been designed to maximise the views to East and South.  His conclusion was that:

“However, unlike the scheme before my colleague, only two blade tips would be visible.  In the context of such expansive views, I cannot agree that the visibility of two blade tips would amount to a significant visual disturbance.  I cannot therefore see any reasonable basis for concluding that two turbines, less than 50 metres in height, partially screened by intervening topography and 2.8 kilometres away should undermine the renovation project or the future use of an A listed building”

His overall conclusion was therefore that there were no material considerations of sufficient weight that would justify the refusal of planning permission. 

Analysis and decision
[12]      The Town and Country Planning (Appeals) (Scotland) Regulations 2013 provide that a reporter may chose (a) whether or not to inspect an appeal site, and (b) whether the inspection will be accompanied or unaccompanied.  The Directorate for Planning and Environmental Appeals guidance provides that it is for the reporter to decide on a case by case basis whether a site inspection is required.  This is a decision which rests on the planning judgement of the reporter (Simson v Aberdeenshire Council 2007 SC 366).  The reporter carried out an assessment and site visit which complied with the requirement of the Act.  He did not attempt to visit the property but he nevertheless had regard to all the relevant materials before him in relation to the potential visual impact from the property.  He took account of the thirteen viewpoints considered in the environmental report, which included one adjacent to the castle.  He took into account that the castle had been designed to maximise the views to the East and South. The decision which he took was open to him on the information available.   The visual impact was not one of the grounds upon which the council had refused the application in the first place, their view being that there would be no significant visual impact.

[13]      The decision in this case was both within the powers of the Act and complied with the relevant requirements of the Act.  In particular, the reporter took into account the potential visual impact upon the property, and the views therefrom.  He had due regard to the prior decision, but reasonably concluded that he was dealing with an entirely different application.  There is no basis for considering that the approach of the reporter is one which no reasonable reporter would have taken.  In all the circumstances the appeal must therefore fail.