Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2017] CSIH 28

P168/16

 

Lord Drummond Young

Lady Clark of Calton

Lord Malcolm

OPINION OF THE COURT

delivered by LORD DRUMMOND YOUNG

in the Petition

by

HELEN DOUGLAS

Petitioner and reclaimer

against

PERTH & KINROSS COUNCIL

Defenders and respondents

and

 

RDS ELEMENT POWER LIMITED

Interested party

for

Judicial review of a decision of Perth & Kinross Council to grant planning permission in connection with Tullymurdoch Wind Farm, Alyth

 

Petitioner and reclaimer:  Sir Crispin Agnew QC;  Campbell & McCartney, solicitors

Defenders and respondents:  Findlay QC;  Harper McLeod LLP

Interested party:  Mackay QC;  Eversheds

4 May 2017

[1]        The petitioner, who is resident at Kilry, near Blairgowrie, has raised proceedings for Judicial Review of two related grants of planning permission made by Perth and Kinross Council, the respondents.  Those grants of planning permission relate to a proposed wind farm at Tullymurdoch, near Alyth.  The developers of the wind farm are the interested party. The primary ground of challenge to the two grants of planning permission is that the Council failed to have proper regard to its obligations as planning authority in relation to the protection of osprey and wildcat, both of which are highly protected species under EC environmental law.

[2]        On 3 September 2014 a reporter appointed by Scottish Ministers granted planning permission (permission 12/01423/FLL) for the construction by the interested party of a wind farm of seven turbines at Tullymurdoch, together with an associated access track and ancillary works.  The interested party subsequently applied for a modification of that planning permission, to permit changes in the size of the turbines.  Planning permission for the modification was granted on 18 November 2015.  The interested party further applied for planning permission to lay 19 kilometres of underground electrical and fibre optic cable, with temporary ancillary infrastructure, to connect the proposed wind farm and another proposed wind farm to the primary electrical substation in Coupar Angus.  Planning permission for that development was granted on 9 December 2015.  In the present proceedings the petitioner challenges the granting of planning permission for the modifications to the wind farm and the laying of the underground cable.  The primary remedy sought is reduction of the two grants of planning permission.  The petitioner further seeks an order that the respondent should require further environmental information, advertise it, and make a full and proper environmental assessment of the impact of the application on the osprey and wildcat that reside within the locality of the proposed wind farm and cable route.

 

Protection of Osprey and Wildcat
[3]        It is convenient at this stage to note the provisions that apply to the protection of osprey and wildcat: first in the relevant legislation, and secondly in the documents that apply to the planning permission, namely the environmental statements and the grants of planning permission themselves.  The petitioner’s challenge to the respondents’ decision is based on the import of these provisions for the present case, and in particular the application in a case where further information about protected species has come to light after the original environmental statement prepared for the purposes of the planning application.

 

Legislation
[4]        In challenging the grants of planning permission for the modification of the turbines and the laying of the cable, the petitioner founds on the legislation governing the protection of osprey (Pandion haliaetus) and wildcat (Felis silvestris).  Both of those species enjoy highly protected status under conservation legislation.  In the case of the osprey, protection is accorded under section 1 of the Wildlife and Countryside Act 1981 and the Wild Birds Directive (Directive 2009/147/EC of the European Parliament and Council on the conservation of wild birds).  Article 4 of the Directive provides that the species mentioned in Annex I “shall be the subject of special conservation measures concerning their habitat in order to ensure their survival and reproduction in the area of distribution”.  Pandion haliaetus is one of the listed species.  Article 4 further provides that Member States should classify the most suitable territories in number and size as special protection areas for the conservation of these species. 

[5]        The wildcat is accorded highly protected status by the Habitats Directive (Council Directive 92/43/EEC).  Article 12 of the Directive provides that Member States “shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range”, prohibiting inter alia “deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration”, and also “deterioration or destruction of breeding sites or resting places”.  Annex IV includes the Felis sylvestris.

 

Protected Species in the Environmental Statements and Grants of Planning Permission
[6]        An environmental statement (ES) was produced in July 2012 for the original application for planning permission in respect of the wind farm.  In that document ornithology was considered in section 6 and ecology in section 7.  A field survey in respect of breeding raptors had been undertaken in 2010.  Two osprey flights had been recorded during the period of observation, and desk study records indicated that the species had bred within 5 kilometres of the site.  The potential environmental effects of the wind farm were assessed, including the effects on nesting birds of the construction phase.  Mitigation measures were proposed, which included checking for nests at the stage of construction.  In the ecology assessment in section 7 specific consideration was given to wildcat, which had been identified in the wider area.  It was recorded, however, that no evidence of wildcat had been recorded during the watching brief for that species.  That did not conclusively prove that wildcat were absent from the site, as wildcat can have a series of home ranges.  Consequently a precautionary approach was taken and it was assumed that the survey area was used to some extent by wildcat.

[7]        The decision of the reporter appointed by Scottish Ministers in respect of the original application for planning permission imposed a detailed condition, condition 17, relating to environmental management.  So far as material this was in the following terms

“17. Prior to the commencement of development a Construction and Environmental Management Plan will be submitted to and approved in writing by the planning authority, in consultation with SEPA [the Scottish Environmental Protection Agency] and SNH [Scottish Natural Heritage], at least one month prior to the commencement of development.

 

The Construction and Environmental Management Plan will identify from the environmental statement appropriate mitigation strategies and consolidate these, clearly outlining what shall be implemented, when and by whom. It will incorporate:

…

• ecology protection measures, if any

….

And include…

j) details of bird surveys to be carried out before the commencement of development;

…

l) measures for the protection of or beneficial to European and other protected species, formation of any required protected species protection plans and implementation measures for any such plans;

….

 

All work shall be carried out in accordance with the approved Construction Environmental Management Plan and all mitigation measures proposed within the environmental statement shall be undertaken within the approved timescales, unless as otherwise agreed in writing with the planning authority”.

 

[8]        When the application for planning permission for the cable development was made, the respondents screened the proposal to determine whether a further environmental statement was required.  They decided that such a statement was not required, after taking cognizance of the Scottish Government’s and the European Commission’s screening checklist.  An ecological appraisal was carried out by consultants, however, and they reported in September 2015.  They considered the position of both wildcat and osprey, and concluded that no permanent effects were likely on the habitats of those two species. 

[9]        Scottish Natural Heritage reported on both the proposal for the modification of the wind turbines at the Tullymurdoch wind farm and the proposal for the installation of underground cables serving the wind farm; the former report was dated 9 October 2015 and the latter 15 October 2015.  In relation to the modification of the turbines, protected species were considered, and it was noted that there were recent records of breeding wildcat at certain locations.  It was requested that a species protection plan for wildcat should be submitted before any construction work began, such a plan to be included within the Construction and Environmental Management Plan and should be required for the discharge of one of the conditions, condition 17L, of the original consent for the wind farm.  It was further noted that there were records of protected breeding birds nesting within close proximity to the development site, notably an osprey nest at a particular location.  In this case it was requested that the presence of the birds should be taken into account in the discharge of condition 17.  Certain further recommendations were made: in particular, disturbance to wildcat and other protected species should be minimized during the construction and operation of the development.  To that end, species protection plans should be submitted prior to the commencement of works for comment by both SNH and the respondents, and should be implemented during construction.  They should include pre-construction surveys for legally protected species at an appropriate time of year, and a watching brief should then be implemented by the Ecological Clerk of Works during construction.  The measures that would be required in respect of wildcat were set out at some length, and it was indicated that other protected species should be subject to similar general principles.  For wildcat the measures included appropriately sized protection zones marked by the Ecological Clerk of Works, with a 200 metre radius protection zone around all wildcat dens.  Emergency procedures were to be provided if wildcat dens were encountered during works, and work would be restricted to minimize disturbance to wildcat.

[10]      In the case of the installation of underground cables, SNH proposed that measures should be put in place to minimize any potential impact on breeding wildcat.  The development would pass through areas known to be used by breeding wildcat, and as a result a species protection plan should be submitted prior to construction.  It was recommended that it should include a number of specific matters, including pre‑construction surveys for legally protected species during the six months preceding the start of construction, and that a watching brief should be implemented by the Ecological Clerk of Works during construction.  Wildcat and breeding birds were to be covered by the surveys.  Appropriate protection zones were to be marked on the ground, in broadly the same manner as with the proposal relating to the turbines.

[11]      On 20 October 2015 a letter of objection to the applications for modification of the wind turbines and the installation of underground cables was lodged by a local resident.  The writer of the letter stated that an osprey’s nest existed approximately 300 metres from the development site for the wind farm, and indicated that the larger blades posed an increased risk to the ospreys and other rare bird species.  The writer further noted that there had been signs of wildcats in the area and that full-blooded wildcats had been caught there.

[12]      The respondents’ decision of 18 November 2015 granting planning permission for modification of the turbines made provision for the protection of European and other protected species (conditions 16 and 17).  Prior to the commencement of development a Construction and Environmental Management Plan was to be submitted to and approved by the planning authority, in consultation with the Scottish Environmental Protection Agency and SNH, at least one month prior to the start of development.  The plan was required to identify mitigation strategies, and was to include a construction method statement.  It was also required to include details of bird surveys carried out before the start of development, and also measures for the protection of or beneficial to European and other protected species and the formation of any required protected species protection plans and implementation measures for any such plans.  Those requirements corresponded to the recommendations made in the decision of the reporter, as set out in paragraph [6] above.  The grant of planning permission also specified that an independent and suitably qualified ecologist should be appointed as the Ecological Clerk of Works for the site by the wind farm operator and at the operator’s expense.  That appointment was to be subject to the prior written approval of the planning authority.  If protected species were found on site, the Environmental Clerk of Works was to ensure that work was suspended and that a protected species protection plan was implemented.

[13]      The respondent’s decision dated 9 December 2015 granting planning permission for the underground cables requires that the development should be carried out in accordance with approved drawings and documents and that prior to commencement of the development a site‑specific Construction Method Statement should be submitted for the written agreement of the planning authority, in consultation with the Scottish Environmental Protection Agency and SNH.  As with the planning permission for modification of the turbines, it was specified that prior to the start of development an independent and qualified ecologist should be appointed as the Ecological Clerk of Works for the site (condition 4).  The Environmental Clerk of Works was to have responsibility for a range of matters, including monitoring compliance with the mitigation works related to the development as set out in the Construction Environment Management Plan, advising the developer on adequate protection if anything had an adverse impact on the natural heritage of the site, advising on the micro-siting of the cable if any protected species were found on site, and ensuring that the protected species protection plan should be implemented; the Environmental Clerk of Works had power to suspend work if necessary (condition 5).  As with the modification of the turbines, prior to construction measures for the protection of European and other protected species, including species protection plans and implementation measures, were to be submitted for the written approval of the planning authority in consultation with SNH (condition 7).  Specific power was given to vary the position of the cable by up to 15 metres on either side under the supervision of the Ecological Clerk of Works, if that were necessary in the interests of nature conservation (condition 11).

[14]      It is apparent from the steps leading to the grant of planning permission for the turbine modification and the laying of the cable and from the planning permission granted for each of those matters that the detailed protection of wildlife, including osprey and wildcat, was left to be decided as the works proceeded.  The Ecological Clerk of Works was appointed in order to achieve that result.  We would observe at this stage that the reasons for delaying detailed measures in this way are fairly obvious.  Wildcat, in particular, are an elusive species, and a wildcat den, or other evidence of wildcat activity, might be discovered as construction proceeded.  Osprey are perhaps more obvious than wildcat; they can be seen in flight, and their nests are relatively large.  Nevertheless the precise location of osprey nests and osprey activities might clearly come to light as works proceed.  For that reason it appears to us entirely sensible that detailed mitigation strategies should be developed as the works proceed.  The appointment of the Ecological Clerk of Works was designed specifically to ensure that proper measures were taken.

 

Grounds of Challenge
[15]      In the petition for judicial review three grounds are advanced for challenging the respondent’s decision.  First, it is said that the respondent did not have sufficient environmental information before it to make a proper assessment of the effects of the proposed modification to the turbines and the laying of the cable upon a pair of osprey nesting within 300 metres of the wind farm and upon wildcat that live in the vicinity of the wind farm and the cable route.  For that reason it is said that the respondent could not make a proper assessment of the effects of the two developments and therefore acted unlawfully in granting planning permission in each case.  Information about the pair of osprey and the wildcat only became available after the environmental statement had been prepared for the original wind farm application, and after it had been decided, in a screening decision, that the cable application did not require an environmental statement.  It is said that the respondent ought to have required additional environmental information from the interested party to deal with the new information.

[16]      Secondly, it is contended that in the circumstances the respondent acted unlawfully in granting planning permission subject to conditions designed to protect osprey and wildcat (condition 16 of the permission for modification of the turbines and condition 7 of the cable permission: see paragraphs [12] and [13] above).  It is said that at the time of the grant the respondent did not have sufficient environmental information to make a proper assessment of the effects of the two proposals on osprey and wildcat in the manner required by Regulation 23(2)(b) of the Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2011 (SSI 2011/139) (“the EIA Regulations”).  Leaving open the protection of osprey and wildcat in this way was contrary to the Regulations;  what should have happened was a request for information advertised under Regulation 24 of the EIA Regulations.  Had that procedure been followed, a request for information would have to be advertised under Regulation 24, and members of the public, including the petitioner, could have made representations on both the supplementary environmental information and the mitigation measures that were proposed.  Thus the petitioner and other members of the public were not given early and effective opportunities to participate in the environmental decision-making process as required by Article 6 of Directive 2011/92/EU, on the assessment of the effects of certain public and private projects on the environment.  Thirdly, it is submitted that the respondent gave inadequate reasons for its decisions.

 

Lord Ordinary’s Decision
[17]      The Lord Ordinary rejected the petitioner’s contentions, holding that the respondent had acted lawfully and that the prayer of the petition should be refused.  He accepted that both osprey and wildcat are highly protected species.  He nevertheless held that any decision as to whether further environmental information was required under the EIA Regulations is a planning decision and is accordingly subject to challenge on Wednesbury grounds only (Associated Provincial Picture Houses Ltd v Wednesbury Corporation, [1948] 1 KB 223).  The fact that information became available only after the production of an environmental statement did not necessarily mean that a request for further environmental information needed to be made, nor did it mean that the original environmental statement was deficient: R (Blewett) v Derbyshire CC, [2004] Env LR 29;  R (Edwards) v Environment Agency (No 2), [2013] 1 WLR 2914;  Skye Windfarm Action Group Ltd v Highland Council, [2008] CSOH 19.  The respondent as planning authority was entitled to have regard to reasonable mitigation proposals: Smith v Secretary of State for the Environment, Transport and the Regions, [2003] EWCA Civ 262.  It was also entitled to place considerable weight on the advice of a body such as Scottish Natural Heritage, which had been consulted in the present case.  Furthermore, the focus of an environmental statement should be on the identification of “likely significant effects” and the mitigation of those effects, as required by Regulation 23(2)(b) of the EIA Regulations.  That accorded a certain discretion to the planning authority.  Information was not required on every matter of detail:  Skye Windfarm Action Group Ltd v Highland Council, supra.  In the present case, neither the environmental statement nor the subsequent supplementary environmental information prepared for the modification application identified a likely significant effect upon either osprey or wildcat.  A precautionary approach has been taken, however, and a commitment had been made to carry out pre‑construction checks and to agree mitigation with SNH.  On that basis, it could not be said that the decision to grant planning permission without first requesting further information could be described as unreasonable in the Wednesbury sense.  The first ground of challenge therefore failed.

[19]      The second ground of challenge was that by attaching conditions to the grant of the modification permission the respondent had left open the assessment of likely significant effects on protected species and had thereby failed to comply with its obligations under the EIA Regulations.  The Lord Ordinary held that once again the challenge failed.  An ecological and ornithological survey had been carried out, which included a full survey for osprey and a watching brief for wildcat.  Mitigation measures were recommended in the environmental statement, and any effects thereafter were assessed as not being significant.  Nevertheless, condition 16 applicable to the modification decision required pre-construction breeding bird surveys and other measures for the protection of protected species, which were to form part of the construction and environmental management plan.  The planning authority was entitled to leave the detailed implementation of mitigation measures to management plans imposed by condition: Smith v Secretary of State for the Environment, Transport and the Regions, [2003] 2 P & CR 11.  Furthermore, they were entitled to rely on the advice of a statutory advisory body such as SNH:  Jenkins v Gloucestershire County Council [2012] EWHC 292 (Admin).  The conditions in the present case were of a standard nature and met the expectations of SNH.  Species protection plans will be prepared as part of the construction and environmental management plan.  Thus the permissions did not “leave over” the assessment of likely significant effects on protected species in breach of obligations under the EIA Regulations.

[20]      In relation to the cable permission, the Lord Ordinary held that an environmental statement was not required because of the screening decision that had been made by the respondent;  that decision was not itself challenged, and the result was that the EIA Regulations have no application to the cable permission.  In relation to the third ground of challenge, going to the adequacy of the reasons, the Lord Ordinary held that the reasons given were adequate, in particular having regard to the report of the planning officer which had preceded the making of the decision.  Finally, the Lord Ordinary held that, even if there were a legal defect in the decision reached, he would have refused the remedy sought by the petitioner in the exercise of judicial discretion.  The petitioner had not suffered substantial prejudice, and the same applied to members of the public.  Conditions of a standard nature had been imposed to deal with the position of protected species.  Furthermore, there was no real possibility that a different decision might be reached, especially in view of the existence of the original planning permission for the wind farm. 

 

Grounds of Appeal
[21]      The petitioner has appealed against the decision of the Lord Ordinary on four grounds.

1. In dealing with highly protected species the Lord Ordinary erred in holding that whether or not to call for further environmental information was a matter of planning judgment challengeable on Wednesbury grounds only.Article 12(1) of the Habitats Directive and Article 4 of the Birds Directive imposed strict protection requirements, and consequently their application involved a matter of law, not planning judgment.Thus supplementary environmental information ought to have been required by the respondent to assess whether the proposed developments (the turbine modification and the cable) were likely to create a deliberate disturbance of protected species or a deterioration or destruction of breeding sites or resting places.Such a procedure was necessary to determine whether the proposals complied with Article 12 and Article 5.The Lord Ordinary had, moreover, been in error in holding that neither the environmental statement nor the subsequent supplementary environmental information identified a likely significant impact upon either osprey or wildcat and that SNH had not identified such effects.In so holding he had not applied the correct legal test; the correct approach was rather that the planning authority had to be satisfied under Article 12 that there was in place a system of strict protection which prohibited deliberate disturbance and/or deterioration or destruction of breeding sites for resting places, and under Article 5 that there should be measures to establish a general system of protection.
2. The Lord Ordinary erred in considering whether or not the environmental statement was adequate because this was a case where the relevant information, that osprey and wildcat were in the vicinity of the development site and the proposed route of the cables, came to light after the environmental statement had been prepared.The planning authority ought in those circumstances to have required supplementary environmental information including proposed species protection plans in order that it could make a proper judgment as to whether the proposals complied with the strict protection requirements of Article 12(1) of the Habitats Directive and Article 5 of the Birds Directive.On this and the preceding ground, reference was made to R (Morge) v Hampshire County Council, [2011] 1 WLR 268.
3. The Lord Ordinary erred in rejecting the argument that, in cases where strict protection of species was required, it was not lawful to leave over the assessment to a stage after the grant of planning permission by imposing conditions that required a species protection plan to be prepared.If a proper decision were to be made, it was necessary to allow the public early and effective opportunities to participate in the decision-making procedures.Reference was made to R v Cornwall County Council, ex p Hardy, [2001] Env LR 25; and Smith v Secretary of State for the Environment, Transport and the Regions, [2003] 2 P & CR 11.
4. The Lord Ordinary erred in upholding a submission that, even if there are had been an error, the court should exercise its discretion to refuse a remedy.A significant breach of EU law had been identified in the first three grounds of appeal, and accordingly it was not open to the Lord Ordinary to refuse a remedy on discretionary grounds: R (Champion) v North Norfolk District Council, [2015] UKSC 52.

We will deal with each of those arguments in turn, although the first three are in large measure related.

 

Grounds of Challenge to the Local Authority’s Planning Decision in Dealing with Highly Protected Species
[22]      The first contention for the appellant is that, in applying the legislation that implements the European directives governing highly protected species, the standard of review by the courts is stricter than the Wednesbury standard that normally applies to planning decisions.  In the present case the relevant legislation is found in section 1 of the Wildlife and Countryside Act 1981 (as amended), which implements  the Wild Birds Directive (Directive 2009/147/EC), and the Conservation (Natural Habitats, etc) Regulations 1994, which implement the Habitats Directive (Council Directive 92/43/EEC).  The Lord Ordinary applied that legislation using the Wednesbury standard of review, and it is said that he was in error in doing so.  In our opinion this contention must be rejected.

[23]      It is a central feature of planning legislation in the United Kingdom that its application is generally entrusted to local planning authorities, or in some cases the relevant government ministers.  The Wednesbury standard of review recognizes this fundamental feature: it recognizes that the planning authority, whether in local or central government, has a large element of discretion in reaching a decision on the merits, and interference by the courts in such a decision is only justified when the authority acts outside a well recognized set of legal norms, which are stated by Lord Greene MR in Wednesbury, at [1948] 1 KB 223, at 228.  In Scotland, an equivalent statement is found in the opinion of LP Emslie in Wordie Property Co Ltd v Secretary of State for Scotland, 1984 SLT 345, at 347-348: the court may interfere with the decision if it discloses a material error of law going to the root of the question for determination, or if irrelevant considerations are taken into account, or if relevant considerations are not taken into account, or if there is no proper factual basis to support the decision, or if the decision is so unreasonable that no reasonable planning authority could have reached it.  These grounds of review are flexible, and may shade into one another, but they recognize the fundamental principle that the planning decision has been entrusted by Parliament to a particular authority, whether a local planning authority or Scottish Ministers.

[24]      That principle applies in our opinion to decisions made under the legislation implementing European directives governing highly protected species in exactly the same way as other planning legislation.  It is plain that, so far as any planning decision is affected by that legislation, the relevant planning authority is still the decision‑maker.  In that situation the court’s ability to interfere must be limited.  There are good reasons for this: it is the planning authority that has the expertise necessary to make a proper decision.  Furthermore, it is the planning authority that has the powers necessary to ensure that the measures taken to protect highly protected species are based on adequate information, are properly directed and are proportionate.  The court, in short, is not well qualified to make planning decisions, including those about highly protected species; it can only interfere if the planning authority’s decision is legally defective in the manner set out in the leading cases, including Wednesbury.

[25]      The foregoing approach has been laid down in a large number of decided cases.  Wordie Property is a planning case.  The English and Welsh legislation protecting highly protected species was considered by the Court of Appeal in Smyth v Secretary of State for Communities and Local Government, [2015] EWCA Civ 174, a case concerning, on this topic, Article 6(3) of the Habitats Directive.  Sales LJ, who delivered the opinion of the court, observed (at paragraph 78) that the legal test under that Article is a demanding one, requiring a strict precautionary approach, but that it also clearly required evaluative judgments to be made having regard to many varied factors and considerations.  Realistically, absolute certainty that there would be no adverse effects was impossible.  It was argued for the objectors to development that under the Habitats Directive the national court was required to apply a more intensive standard of review than the ordinary Wednesbury standard.  That would mean in effect that the court should make its own assessment afresh as a primary decision maker.  That argument was rejected (paragraph 80).  The relevant standard was the Wednesbury standard, which was “substantially the same” as the standard of review of “manifest error of assessment” applied by the Court of Justice of the European Union in equivalent contexts.  The key feature was the “multi‑factorial and technical nature of the assessment called for”. 

[26]      We agree entirely with that approach.  We would emphasize that the assessment that must be made is of a technical nature.  If the court were required to go beyond the Wednesbury standard of review and in effect remake the decision itself, it would be compelled to make a technical decision in an area where it lacks expertise.  Evidence, including substantial amounts of both factual and expert evidence, would be necessary.  We cannot accept that, when the European directives were incorporated into United Kingdom legislation, it was intended that a special procedure should be followed involving the leading of expert evidence in cases where decisions made under the legislation are challenged in the courts.  We can see no useful purpose in such a procedure; it is better that technical planning decisions, which necessarily involve the balancing of a range of factors, should be made by a body that has, or has ready access to, the necessary expertise.

[27]      In the present case the Lord Ordinary proceeded on the basis that the standard of review was the ordinary Wednesbury standard.  In our opinion he was correct to do so.

[28]      In relation to the first ground of appeal, it was further submitted for the petitioner that, before the planning authority could grant planning permission, it had to be satisfied under Article 12(1) of the Habitats Directive that for wildcat there was in place a system of strict protection which satisfied the requirements of that Article, and likewise that for osprey there were adequate measures in place to establish a general system of protection under Article 5 of the Birds Directive.  The Lord Ordinary held that neither the environmental statement nor the subsequent supplementary environmental information identified a likely significant impact upon either osprey or wildcat, and he had been in error in doing so.  For the respondent, it was submitted that this point had not been relied on before the Lord Ordinary, and in any event, so far as the merits of the argument were concerned, there was a strict system of regulation in place.

[29]      The leading case on this area of law is R (Morge) v Hampshire County Council, supra.  In that case the issue was the application of Article 12(1) of the Habitats Directive to an area inhabited by bats that was to be developed from an overgrown state into a bus route route.  It was held that there was no contravention of Article 12(1).  Lord Brown of Eaton‑under-Heywood, who delivered the leading opinion in the UK Supreme Court, held (at paragraphs 26 et seq) that the United Kingdom had chosen to implement the Directive by national legislation, the Conservation (Natural Habitats, etc) Regulations 1994, as amended, and these placed only a limited responsibility on the planning committee.  In the version of the regulations considered in Morge breach of the Regulations was made a criminal offence, and in England it was a statutory body, Natural England, that was responsible for instigating prosecution and thus enforcing the obligations of the United Kingdom under the Directive.  In relation to the responsibilities of the local planning authority, Lord Brown stated (at paragraph 29):

“[The planning committee’s] only obligation under [the Regulations] is… to ‘have regard to the requirements of the Habitats Directive so far as [those requirements] may be affected by’ their decision whether or not to grant planning permission.  Obviously, in the days when the implementation of such permission provided a defence to the… offence of acting contrary to article 12(1), the planning committee, before granting a permission, would have needed to be satisfied either that the development in question would not offend article 12(1) or that a derogation from that Article would be permitted and the licence granted.  Now, however, I cannot see why a planning permission (and, indeed, a full planning permission save only as to conditions necessary to secure any required mitigating measures) should not ordinarily be granted save only in cases where the planning committee conclude that the proposed development would both (a) be likely to offend article 12(1) and (b) be unlikely to be licensed pursuance to the derogation powers”.

 

Furthermore, where Natural England expressed themselves satisfied that the proposed development would comply with Article 12, the planning authority was entitled to presume that that was so.  Consequently the planning committee was not obliged to consider and decide for itself whether the development might occasion such disturbance to bats as to constitute in fact and in law a violation of Article 12(1) (paragraph 30).

[30]      In our opinion the reasoning in Morge applies directly to cases such as the present.  Under the Conservation (Natural Habitats, etc) Regulations 1994, the duty of securing compliance with the Directives is imposed by Regulation 3(1), but that regulation, except in relation to the Scottish Marine area, imposes the duty on Scottish Ministers and the appropriate nature conservation body; it does not impose a duty on local authorities such as the respondent to secure compliance.  Regulation 3(3) provides that a competent authority, in exercising their functions, must have regard to the requirements of the Directives so far as they may be affected by the exercise of those functions.  That obligation, however, is directly comparable to the obligation on the local authority in Morge, and it does not impose any duty to ensure that the Habitats Directive is implemented.

[31]      The duties of a local authority in relation to highly protected species have been considered in further English decisions at first instance.  In R (Prideaux) v Buckinghamshire County Council, [2013] Env LR 32, Lindblom J stated (at paragraphs 96-97):

“As the final decision in Morge makes clear, [the relevant regulation] does not require a planning authority to carry out the assessment that Natural England has to make when deciding whether there would be a breach of art. 12 of the Habitats Directive or whether a derogation from that provision should be permitted and a licence granted.  If proposed development is found acceptable when judged on its planning merits, planning permission for it should normally be given unless in the planning authority’s view the proposed development would be likely to offend art. 12(1) and unlikely to be licensed under the derogation powers….  The majority of the Supreme Court rejected the kind of assessment favoured by the Court of Appeal, which would require a more penetrating enquiry into the prospects of a licence being granted”.

 

Furthermore (at paragraph 117):

“It was not necessary for Natural England to have said that the derogations were going to be licensed, or were likely to be.  Like the authority in Morge, the County Council was entitled to assume that Natural England was satisfied that the requirements of the Habitats Directive and the regulations were being complied with”.

 

In Cheshire East Council v Secretary of State for Communities and Local Government, [2014] EWHC (Admin) 3536, Lindblom J’s formulations were expressly approved and followed at paragraph 55.

[31]      In Scotland, a generally similar approach was adopted by Lord Malcolm in the petition of William Grant & Sons Distillers Ltd, [2012] CSOH 98, a case involving a proposed wind farm where the petitioners objected inter alia on the ground that the reporter had failed to consider the implications of the Conservation (Natural Habitats, etc) Regulations 1994 adequately.  Lord Malcolm observed (at paragraph [38]) that Scottish Natural Heritage, the enforcement agency for the Habitats Directive and the 1994 Regulations, had no objection with regard to the impact of the wind farm on European protected species, and a chartered biologist had explained that there was no need for licensing for European protected species for the proposed wind farm.  That was reflected in the report.  That was sufficient to satisfy the regulations, at least at the stage of granting planning permission, which was what was in issue in that case.

[32]      We are of opinion that the approach taken consistently in the foregoing cases should be followed.  We accordingly hold that there was no obligation on the respondent, in considering the proposals for the turbine modification and the laying of the cable, to go beyond the planning merits of the application unless it appeared that the proposed development would be likely to contravene Article 12(1) of the Directive and was unlikely to be licensed under the applicable derogation powers.  It is clear at that the latter condition does not apply, with the result that the respondent need only be concerned with the planning merits of the application.

 

Treatment of Information Received after Planning Decision
[33]      The petitioner’s second ground of appeal relates to the time at which information about osprey and wildcat said to be in the vicinity of the proposed development became available.  The petitioner states that such information came to light after the environmental statement had been prepared, with the result that the respondent should not have proceeded further without supplementary environmental information that included proposed species protection plans.

[34]      For the reasons stated at paragraph [30] above, we are of opinion that the respondent’s duties under the Conservation (Natural Habitats, etc) Regulations 1994 are limited.  The respondent is obliged to have regard to the requirements of the Directives so far as those may be affected by the exercise of its planning functions, but it is not charged with the duty of securing compliance with the Directives.  In our opinion what was done by the respondent was sufficient to satisfy the requirements of Regulation 3(3) of the 1994 Regulations.  Moreover, the existence of osprey and wildcat in the vicinity of the proposed development was considered in the environmental statement and the supplementary environmental statement obtained prior to the granting of planning permission.  Those documents focused on the identification of “likely significant effects” and the mitigation of those effects, as described at paragraphs [6] - [13] above.  They included detailed comments from Scottish Natural Heritage.  Furthermore, conditions were inserted into the planning permission regarding the appointment of an Ecological Clerk of Works and for detailed investigation measures, and if necessary mitigation measures, as the works proceeded.  That meant that, if further information relating to the presence of osprey or wildcat in the vicinity of the development were discovered as works proceeded, appropriate mitigation measures would be determined and implemented.  We consider that the environmental statement and supplementary environmental statement, taken together with the measures required during construction, were clearly sufficient to comply with the respondent’s obligations under the 1994 Regulations and the Directives.

 

Competency of Imposing Conditions Requiring Subsequent Assessment of Highly Protected Species
[35]      The third ground of appeal is an argument that, where strict protection of species is required, it is not lawful to leave over the assessment of what is required to a stage after the grant of planning permission by the use of conditions that require species protection plans to be prepared.  The thrust of this challenge appears to be that, if conditions are used to secure protection, the public are denied the right to participate in the decision-making process.

[36]      In our opinion the use of conditions that require assessment of the treatment of highly protected species at a stage after the granting of consent is competent.  Indeed, in many cases, of which the present is an example, it may be an obviously advantageous way to proceed.  In the present case, as we have observed at paragraphs [12] - [14] above, the conditions attached to the grants of planning permission require, before development begins, the submission and approval of a Construction and Environmental Management Plan, which is to identify mitigation strategies.  It is also to include details of protected species in the vicinity of the development.  An Ecological Clerk of Works is to be appointed, and if protected species are found he is charged with ensuring that protected species protection plans are implemented.  If necessary he can suspend works.  Thus it is contemplated that the detailed steps to protect wildlife will be determined at a later stage, as the works on the wind farm and the cable are executed. 

[37]      That appears to us to have clear advantages.  Highly protected species, and certainly osprey and wildcat, are not common, and wildcat, in particular, are not easily observed.  For that reason, however meticulous the work carried out, it cannot be said with certainty that the presence of such species can be fully ascertained before planning permission is granted.  Moreover, the presence of species such as osprey and wildcat in the locality is likely to change over time; that appears to be what the petitioner says has happened in the present case.  As work proceeds, more detailed information and information about new developments may well come to light.  Against that background, the use of properly drafted conditions, taken with the appointment of an ecological clerk of works, is in our opinion more likely to provide more effective protection for species such as osprey and wildcat than an attempt to deal with all protection measures ab ante, at the stage of planning permission and before works proceed.  We would also emphasize that the appointment of an ecological clerk of works is obviously advantageous; the fundamental purpose of such an appointment is to ensure that the general ecology of the area around the development, including protected species, is properly dealt with.  It must, moreover, be assumed that any ecological clerk of works will act in good faith and perform his or her duties properly.

[38]      Counsel for the petitioner attached importance to the right of the public to participate in the decision-making process in relation to highly protected species.  That right is clearly significant, but public comments were invited at the stage of the initial environmental statement and supplementary environmental information.  Moreover, members of the public, including the petitioner, have been able to provide further information about wildlife in the area, including the osprey nest and the presence of wildcat in the vicinity of the proposed development.  If further information is provided to the local planning authority in a case such as the present where the planning permission relies on conditions requiring the subsequent assessment of protected species, it must in our view be assumed that the authority will act in good faith and pass the information on to the developer and the ecological clerk of works.  In addition, Scottish Natural Heritage has been able to provide detailed comments on protected species in the vicinity of the present developments.  Once again, it must in our opinion be assumed that they will continue to act in good faith and will pass on any information that they acquire to the developer and the ecological clerk of works.  Through these routes continued public participation is likely to be achieved, on the assumption that there are members of the public who are interested in the protection of wildlife in the vicinity of the development.  Consequently we cannot regard the right of the public to take part in formal decision-making procedures as decisive.  This is a case where formal consultation took place at the stage of the original environmental statement and supplementary environmental information, and in the light of that exercise a decision was made to impose detailed conditions requiring further investigation of protected species, including osprey and wildcat.  It is obvious that the information disclosed in the environmental statement and supplementary environmental information was not sufficient to conclude that protected species could not be adequately dealt with, and the further investigation was designed to ascertain the detailed and up-to-date position.  In such an exercise, against the background of the earlier public consultation, we are of opinion that informal public participation may in practice be just as effective as formal consultation.

 

Case Law on Conditions
[39]      We were referred to a number of cases which dealt with the competency of using conditions in relation to protected species.  In some of these stress was placed on the need for public participation.  An example is R v Cornwall County Council, ex p Hardy, [2001] Env LR 25, which involved a planning application to extend a landfill site.  The environmental statement raised conservation issues about various species, including lesser horseshoe bats, which were protected species under the Habitats Directive.  The local planning authority granted planning permission for the extension subject to a series of conditions, one of which required further nature conservation surveys and the preparation of appropriate mitigation measures.  In that way, it was contended, the authority would have adequate powers at the reserved matters stage to ensure the protection of the bats.  It was held by Harrison J (at paragraph 62; see also paragraph 41) that this procedure was inadequate.  The bats and their roosts were subject to strict protection, and there was evidence in an ecological report that they might be found in mine shafts on the development site if surveys were carried out.  Strong advice was received from, inter alios, English Nature that such surveys should be carried out.  Harrison J commented (paragraph 62)

“Having decided that those surveys should be carried out, the Planning Committee simply were not in a position to conclude that there were no significant nature conservation issues until they had the results of the surveys.  These surveys may (sic) have revealed significant adverse effects on the bats or the resting places in which case measures to deal with those effects would have had to be included in the environmental statement.  They could not be left to the reserved matters stage when the same requirements for publicity and consultation do not apply.  Having decided that the survey should be carried out, it was, in my view, incumbent on the respondent to await the results of the surveys before deciding whether to grant planning permission so as to ensure that they have the full environmental information before them before deciding whether or not planning permission should be granted”.

 

[40]      In our opinion the present case is readily distinguishable from Hardy.  First, that case concerned the extension of a landfill site in such a way as to excavate or cover over old mine shafts in which bats were said to roost.  That would obviously be a more extreme form of interference than in the present case, which would of itself require more meticulous examination.  Secondly, in Hardy only preliminary surveys had been carried out, and recommendations had been received that further surveys of the mine shafts were necessary to ensure that the bats would be protected.  In the present case, by contrast, a full ornithological survey was carried out for osprey.  A watching brief for wildcat was also carried out at the survey stage.  The respondents nevertheless decided to adopt a precautionary approach and imposed the detailed conditions that we have already described.  It is thus clear that in the present case a much more careful approach has been taken to determining the possible existence of protected species.  Thirdly, the presence of bats roosting in a mine shaft is, it seems to us, a matter that is more readily discovered than the presence of elusive species such as wildcat.  It is in the case of the more elusive species that the use of conditions is most obviously advantageous.  In Hardy, by contrast, the existence or otherwise of roosting bats could readily have been determined by a straightforward survey of the mine shafts prior to the grant of planning permission.  For these reasons we cannot regard the reasoning in Hardy as applicable to the present case.

[41]      The use of conditions was also considered in Smith v Secretary of State for the Environment, Transport and the Regions, [2003] EWCA Civ 262;  [2003] 2 P & CR 11, a case that concerned a landscaping scheme for the restoration of a quarry site after quarrying and subsequent landfill operations ceased.  In the Court of Appeal the importance of public consultation was emphasized (paragraph 22) under reference to earlier cases in the House of Lords.  In one of those cases, Berkeley v North Yorkshire County Council, ex p Brown, [2001] 2 AC 603, Lord Hoffmann had referred to the relevant European environmental Directive (Council Directive 85/337/EEC) and had stated (at 615):

“The directly enforceable right of the citizens which is accorded by the Directive is not merely a right to a fully informed decision on the substantive issue.  It must have been adopted on an appropriate basis and that requires the inclusive and democratic procedure prescribed by the Directive in which the public, however misguided or wrongheaded its use may be, is given an opportunity to express its opinion on the environmental issues”.

 

We observe that the emphasis in that statement is on the substance of public participation.  Provided that members of the public are able to comment effectively, that satisfies the purpose of the requirements in the Directive.  It is not said to be essential that a particular form of consultation should take place.

[42]      In Smith, Waller LJ, who delivered the leading opinion, made a number of observations governing the assessment of environmental impact (paragraphs 25 et seq).  At the stage of granting outline planning permission, the planning authority must have sufficient details of the proposed development and its environmental impact to comply with its obligation under the United Kingdom legislation to take environmental information into consideration in a proper manner.  The reason for this is that, once outline planning consent has been given, it is impossible to go back without at least the payment of compensation.  On this basis, it was suggested that a planning authority would have failed to comply with the United Kingdom legislation if it attempted to “leave over questions which relate to the significance of the impact on the environment, and the effectiveness of any mitigation”.  Hardy were cited in support of this view.  Nevertheless, it was possible to leave the final details of, for example, a landscaping scheme to be clarified through the medium of reserved matters or by using a condition where full planning consent is granted.   On these observations, we agree that the planning authority must have adequate information at the stage of outline planning permission to take the impact on the environment properly into account.  Nevertheless, the significant point is in our opinion the last, namely that it is competent to proceed by way of reserved matters or conditions to deal with matters such as landscaping.  Furthermore, we are of opinion that conditions can specify that the cost of achieving a particular environmental result is to fall on the developer; in short, the risk of additional environmental measures can be imposed on the developer rather than the planning authority.  The decision in Smith was that conditions that had been required in relation to landscaping were adequate: see paragraphs 40 and 49.  Thus the case is not authority for any view that it is incompetent to proceed by way of condition.

[43]      Similarly, in R (Blewett) v Derbyshire County Council, [2003] EWHC 2775 (Admin);  [2004] Env LR 29, it was argued that the assessment of the impact of a proposed landfill development on groundwater had been impermissibly left over by the planning authority to another decision maker, the Environment Agency, after the grant of planning permission, and that the environmental statement did not adequately describe the mitigation measures required.  That argument was rejected (paragraphs 61‑68).  The environmental statement in that case contained a description of the effect of the operation of the landfill upon groundwater.  Although brief, it appeared to be adequate, and indeed it had not been challenged at the time of consultation.  As in Smith, the measures that would be taken to control groundwater placed constraints upon the planning permission within which future details had to be worked out (paragraph 64).  Sullivan J concluded that in the circumstances the planning authority was fully entitled to leave the detail of the remediation strategy to be dealt with by means of a condition.

[44]      We accordingly conclude that in the circumstances of the present case, where a full environmental statement was obtained at the stage when planning permission was given for the wind farm and supplementary environmental information was subsequently obtained, the public consultation process was properly conducted.  In these circumstances it was competent to impose conditions that required the details of mitigation measures for protected species such as osprey and wildcat to be worked out as the works proceed.

 

Exercise of Discretion to Refuse a Remedy
[45]      The petitioner’s last ground of challenge related to the Lord Ordinary’s decision that, even if he had held that there was a defect in the respondents’ decisions to grant planning permission for the turbine modification and the laying of the cable, he should refuse the remedy sought by the petitioner in the exercise of his discretion.  For the petitioner, it was submitted that a significant breach of EU law had occurred in respect of each of the first three grounds of appeal, and that in those circumstances it was not competent to refuse the remedy of reduction on discretionary grounds.

[46]      In our opinion this argument must be rejected.  It was not in dispute that in general it was competent for a court to refuse the remedy of reduction in a case where the petitioner had failed to demonstrate that he or she had suffered substantial prejudice, or that any substantial prejudice had been suffered by the public.  Nor was it disputed that the remedy of reduction might be refused as a matter of discretion where there was no realistic possibility that a different decision might be reached if proper procedures had been followed.  It was on the basis of those two considerations that the Lord Ordinary had concluded that he would have refused the remedy.  The petitioner’s argument is rather based on the proposition that what was involved was a significant breach of the principles of EU law, which negative the existence of any discretion in the court.

[47]      The power of a court to refuse the remedy of reduction where there is no substantial prejudice, or no realistic prospect of a different decision, is a matter of general Scots law.  It is founded on obvious considerations of common sense.  The function of the court is to provide a remedy for legal wrongs that have a discernible impact in the real world.  If the applicant for a remedy has suffered no prejudice, that feature is absent.  The same is true if the result would almost certainly have been the same had proper procedures been followed.  In these cases, it cannot be said that the rights of the party denied a remedy have been impaired.  These considerations apply to any legal rights, regardless of their origin, whether that be in domestic law or EU law, or indeed the European Convention on Human Rights or other instruments that are binding as a matter of international law.  In all these cases, the essential consideration is that legal remedies should provide for real breaches of legal rights, not breaches that are theoretical or hypothetical or without any practical substance.  We accordingly reject the petitioner’s submission that rights under EU law should be treated differently from rights under domestic law in relation to the power to refuse a remedy.  In conclusion, we note that the same view was reached in R (Champion) v North Norfolk District Council, [2015] 1 WLR 3710, at paragraphs 54 and 57‑59.

 

Conclusion
[48]      For the foregoing reasons we are of opinion that the Lord Ordinary’s decision was correct.  We accordingly refuse the reclaiming motion.