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OUTER HOUSE, COURT OF SESSION

[2017] CSOH 142

P895/17

OPINION OF LORD DOHERTY

In the Petition of

COMMUNITY WINDPOWER LIMITED

for

Petitioner

Judicial Review of a decision of East Ayrshire Council of 9 August 2017 to issue a Stop

Notice dated 9 August 2017 to the petitioner in terms of section 140 of the Town and

Country Planning (Scotland) Act 1997

Petitioner: Steele QC, O’Carroll; Balfour + Manson LLP

Respondent: Gale QC, Dunlop; Ledingham Chalmers

6 October 2017

Introduction

[1] On 5 October 2017 I heard a substantive first hearing in this judicial review. The

parties indicated their desire for an early decision. At the close of submissions I continued

the matter overnight. I gave my decision and reasons orally when the case resumed on

6 October 2017. I dismissed the petition, and I found the petitioner liable in expenses.

[2] On 11 October 2017 I was informed that the petitioner had enrolled a reclaiming

motion in respect of the interlocutor of 6 October 2017, and that it had requested that I

prepare an Opinion.

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The Planning Permission

[3] On 28 February 2013 East Ayrshire Council (“the respondent”) granted the petitioner

planning permission for a wind farm of 15 turbines and associated development at Seddon

Law. The permission was subject to 47 conditions. The petitioner applied to the respondent

for variation of certain of the conditions (conditions 29, 30, 31, 32 and 33). The respondent

did not determine that application within the statutory period, with the result that it was

deemed to be refused. The petitioner appealed to the Scottish Ministers against that deemed

refusal. On 24 October 2014 the reporter appointed by the Scottish Ministers, Michael Shiel,

allowed the appeal and granted planning permission for the erection of the 15 turbines and

associated development without compliance with conditions 29, 30, 31 32 and 33 previously

imposed, but subject to further conditions and to a revised condition 29.

[4] Condition 36 of both the original and the varied planning permission provided:

“Private Water Supplies

36. Prior to commencement of development the Operator shall submit a water risk

assessment of the effects of the development on the quantity and quality of water

supplied to all properties with a private water supply that may be affected by the

development for the written approval of the planning authority in consultation with

SEPA. The water risk assessment shall include, but not exclusively, details of any

necessary mitigation measures and monitoring arrangements prior to

commencement of development, during construction and upon completion of

construction. Thereafter any mitigation measures identified in the approved water

risk assessment shall be implemented and maintained by the operator.

Reason: To ensure the protection of the quantity and quality of private water supplies.”

[5] On 28 October 2015 the petitioner submitted a water risk assessment (“WRA”) to the

respondent together with an application to vary the planning consent by discharging

condition 36. By notice dated 14 January 2016 the respondent refused the application.

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[6] The petitioner appealed against the refusal to the Scottish Ministers. The reporter

appointed to hear the appeal was Michael Cunliffe. Mr Cunliffe was not satisfied with the

petitioner’s initial WRA. During the appeal process revised versions of the WRA were

submitted with a view to addressing Mr Cunliffe’s concerns. Mr Cunliffe issued two

Procedure Notices (on 30 November 2016 and 20 January 2017) proposing further

amendments to the mitigation measures proposed in the WRA. Ultimately, he issued his

decision on 23 February 2017. The decision letter began:

“Decision

I allow the appeal and discharge Condition 36 of Planning Consent 13/0198/PP on the

basis of the Technical Report on Private Water Supplies: Consolidated Water Risk

Assessment dated 15 November 2016, as read with the Response for the Appellant to

Procedure Notice dated 20 January 2017, which I hereby approve subject to the four

conditions listed at the end of this decision notice.”

In his reasoning the reporter noted (para 5) that in relation to properties served by Blackshill

Spring “the only safe course is to provide a replacement water supply before the start of the

development.” A mitigation strategy was also required in relation to properties supplied

from the Airtoch supply (para 6). Mitigation was also required for Tayburn and Muirburn

(para 7), and for Alton Farmhouse and Alton Lodge (para 8). He narrated (para 15) that the

second Procedure Notice asked the petitioner for amendments to the proposed mitigation

measures in the WRA that would secure that five things were in place before development

began. He noted (para 16) that the petitioner’s Response to the Notice set out proposals

aimed at meeting the requirements; but he concluded that there remained valid concerns

which still needed to be addressed (para 18). He continued:

“19. By making the discharge of Condition 36 conditional on compliance with the

contents of the Procedure Notice, I can ensure that the work on the wind farm site

does not begin until the required mitigation is in place… All conditions, both of the

planning permission itself and of the discharge of conditions under it, will be

enforceable by the planning authority.”

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In paragraphs 33 and 34 he set out his conclusion:

“Conclusion

33. I consider that a great deal of progress has been made since the original WRA

was rejected by the council in January 2016… I acknowledge the concerns of those

who depend on private water supplies, and in discharging the condition I have

significantly strengthened the mitigation measures to ensure that these will reduce

risks to a level I consider acceptable. I also acknowledge that these measures will

have cost and potential delay implications for the appellant, but it is necessary to

strike a reasonable balance between the appellant’s interests and those of local

residents and businesses who could be affected.

34. Overall, I consider that the Consolidated Water Risk Assessment, as

supplemented by the appellant’s response to the 20 January Procedure Notice and

subject to the conditions I am imposing, meets the requirements of Condition 36…”.

The reporter imposed four conditions which were appended to the decision letter.

Condition 1 provided that, unless otherwise agreed by the respondent, five things should be

in place before development began. For present purposes it is sufficient to note that the first

(1.1) was fully operational water supplies for certain specified properties; the second (1.2)

was other specified mitigation measures for certain other properties at significant risk; the

third (1.3) was that the full cost of implementing and maintaining the mitigation measures

should be met by the Operator throughout the lifetime of the planning permission; and the

fourth (1.4) was that the Operator should supply the professional credentials of certain

persons.

The Enforcement Notice and the Stop Notice

[7] On 9 August 2017 the respondent served an Enforcement Notice on the petitioner in

terms of s 127 of the Town and Country Planning (Scotland) Act 1997 (“the 1997 Act”) in

respect of an alleged breach of planning control. The breaches alleged were set out in

paragraph 3:

Page 5 ⇓

“1. Commencement of works specifically excluded by Condition 36 of planning

consent 13/0198/PP, namely intrusive site investigation works involving the drilling

of proposed turbine locations, prior to demonstration of fulfilment of this condition.”

Paragraph 3.2 narrated separately (beginning “And in any event”) as a breach

commencement of the site investigations works involving the drilling of proposed turbine

locations prior to certain specified mitigation. The measures specified repeated the contents

of conditions 1.1, 1.2 and 1.3 of Mr Cunliffe’s decision of 24 October 2014.

[8] At the same time as the respondent served the Enforcement Notice it also served a

Stop Notice in terms of s 140 of the 1997 Act. Section 140 provides:

“140.— Stop notices.

(1) Where the planning authority consider it expedient that any relevant activity

should cease before the expiry of the compliance period in respect of an enforcement

notice, they may, when they serve the copy of the enforcement notice or afterwards,

serve a notice (in this Act referred to as a ‘stop notice’) prohibiting the carrying out of

that activity on the land to which the enforcement notice relates, or any part of that

land specified in the stop notice.

(2) In this section, ‘relevant activity’ means any activity specified in the enforcement

notice as an activity which the planning authority require to cease and any activity

carried out as part of that activity or associated with that activity.

…

(7) A stop notice shall specify the date when it is to come into effect, and that date—

(a) must not be earlier than 3 days after the date when the notice is served, unless the

planning authority consider that there are special reasons for specifying an earlier

date and a statement of those reasons is served with the stop notice…”

In terms of the Stop Notice the respondent prohibited the carrying out of “the unauthorised

activity specified in Schedule 2 to this Notice with effect from 9 August 2017”. Schedule 2

narrated:

“Site investigation works have been undertaken on site, at or adjacent to the turbine

locations identified in planning consent 13/0198/PP prior to the discharge of negative

suspensive conditions attached to the said consent. It is believed that this works (sic)

has been undertaken in preparation for commencement of more intrusive

engineering works at the site. Stop all works associated with the windfarm

development including intrusive ground investigation works with immediate effect

with the exception of any works required to fulfil the requirements of Condition 36

of Planning Permission 13/0198/PP.”

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In an Appendix to the Notice headed “Reasons for the immediate effect of the Stop Notice”

the Notice stated:

“The works described in Schedule 2 in the attached notice have the potential to cause

environmental harm by way of contamination and pollution of existing private water

supplies as identified by the MacArthur Green Technical Report on Private Water

Supplies; Consolidated Risk Assessment dated 15 November 2016 and … Michael

Cunliffe’s Decision Notice relating to the discharge of Condition 36 of 13/0198/PP.

No acceptable mitigation measures have been demonstrated for the site as being in

place as required by Condition 36. It is therefore considered expedient that this Stop

Notice takes immediate effect.”

The Petition for Judicial Review

[9] The petitioner has exercised its statutory right (in terms of s 130 of the 1997 Act) to

appeal against the Enforcement Notice. There is no right of appeal against a Stop Notice. It

is in those circumstances that the petitioner seeks judicial review of the decision to issue the

Stop Notice. The substantive remedies sought (article 4 of the petition) are (i) declarator that

the decision to serve the Stop Notice was unlawful in that it involved the respondent acting

irrationally by issuing a notice which is (1) based on a planning condition which is no longer

extant; (2) void for want of adequate specification; and (3) contradictory et separatim

irrelevant; (ii) reduction of the decision to issue the Stop Notice; (iii) suspension of the

Notice; (iv) interdict of the respondent from enforcing the Notice. On 20 September 2017 the

respondent appeared at a hearing of the petitioner’s motion for interim orders. The

respondent opposed a motion for interim relief. Following the hearing it lodged answers to

the petition. At a By Order on 27 September 2017 the court granted permission for the

petition to proceed, fixed a substantive first hearing to take place on 5 and 6 October 2017,

and made certain other case management orders.

Page 7 ⇓

First Hearing

[10] The matter came before me on 5 October 2017 for the substantive first hearing. In the

normal course a first hearing is a full substantive hearing. Neither party suggested that the

court was not in a position to proceed to a full hearing and determine the petition on the

basis of the material before it. In those circumstances the issue was not whether a case could

be made for the grant of interim remedies. The issue was whether the petitioner had made

out its case that in the exercise of the court’s supervisory jurisdiction it should grant one or

more of the final remedies sought.

[11] The essence of the petitioner’s case is (i) that the respondent’s decision to serve the

Stop Notice was irrational; (ii) that the notice is a nullity. Both aspects have at their core the

contention that both the decision and the Notice are fatally flawed because they proceeded

upon the basis that condition 36 of the planning consent remained extant at the time of the

decision and the Notice.

[12] Senior counsel for the petitioner submitted that on a proper construction of the

reporter’s decision of 23 Feb 2017 there was no doubt that condition 36 had been discharged.

He accepted that the further conditions imposed by the reporter qualified the planning

permission. The consequence was that the reference to condition 36 in the Stop Notice was

inept. In those circumstances the description of unauthorised activity in Schedule 2 did not

make it sufficiently clear to the petitioner what it was that was prohibited. The description

contained no express reference to any of the conditions imposed on 23 February 2017.

Breach of a Stop Notice could have penal consequences. Accordingly, Stop Notices had to

be construed strictly (East Riding County Council v Park Estate (Bridlington) [1957] AC 223, at

pages 233, 236; Francis v Yiewsley [1958] 1 QB 478, at pages 490-491). The lack of specification

here, combined with the reference to a discharged condition, had the consequences that the

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Notice was contradictory and that there was uncertainty as to what was prohibited. As a

result, the Notice was a nullity. In those circumstances the respondent’s decision to serve it

was irrational. Further, the decision was also irrational because as at the date of service the

petitioner had gone as far as it reasonably could to satisfy conditions 1.1 to 1.5. In that

regard the Mr Steele placed reliance on a number of affidavits from representatives of the

petitioner and from the petitioner’s advisers, and on related documents. He submitted that

on the basis of that material the court should hold that it had been irrational for the

respondent to proceed on the basis that the conditions had not been satisfied. He further

submitted that in the whole circumstances it had also been irrational for the respondent to

determine that the Stop Notice should have immediate effect.

[13] Senior counsel for the respondent submitted that, on a proper construction of

Mr Cunliffe’s decision, condition 36 had not been discharged on 23 February 2017. Rather,

discharge of the condition was subject to fulfilment of the four conditions which the reporter

had imposed. It followed that condition 36 was extant on the date of the Stop Notice. Even

if that were not the case, the Notice was not a nullity. The unauthorised activity was

sufficiently specified in Schedule 2. The words used had to be interpreted sensibly. No-one

was in any doubt that the negative suspensive conditions referred to were conditions 1.1

to 1.5. Schedule 2 was not inherently contradictory. Matters of planning judgement were

matters for the respondent. At the time of service of the Stop Notice the respondent’s

officers had been entitled to conclude that the conditions had not been satisfied. There was a

proper basis for that view, as the affidavits of Mr Dickie and Mr Mitchell and the related

productions showed. While that may not have been a view which the petitioner or its

advisers shared, the respondent’s view was one it was entitled to hold. The same

observations applied to the respondent’s belief that the Stop Notice should have immediate

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effect. It was not part of the supervisory jurisdiction to review the merits of the decision

challenged. The petition should be dismissed.

[14] In the note of argument for the respondent (No 16 of process), which senior counsel

adopted, reference was made to the following authorities: Tesco Stores Ltd v Secretary of State

for the Environment [1995] 1 WLR 759, at page 780H; Cartledge v Scottish Ministers (No. 2) 2011

SC 602, at paragraph 44; Council of Civil Service Unions v Minister for the Civil Service

[1985] 1 AC 374, at page 410G-H; The RSPB v Scottish Ministers [2017] CSIH 31, at paragraph 204;

British Railways Board v Secretary of State for the Environment [1994] JPL 35, at page 38; Telford

& Wrekin Council v Secretary of State for the Communities and Local Government [2013] EWHC 79 (Admin),

at paragraph 33(8); West Oxfordshire DC v Secretary of State for the Environment &

Others (1988) 56 P&CR 434, at page 449; Ormston v Horsham Rural DC (1966) 17 P&CR 131, at

pages 140-141; Bristol Stadium Ltd v Brown [1980] JPL 107, at page 108; R v Pettigrove &

Roberts (1991) 62 P&CR 355, at pages 364-365; Central Regional Council v Clackmannan District

Council 1983 SLT 666, at page 668. In the course of submissions reference was also made to

Trump International Golf Club Scotland Ltd v Scottish Ministers 2016 SC (UKSC) 25, [2015] UKSC 74, but I was

not taken to the report.

Decision and Reasons

[15] Condition 36 was a suspensive condition providing that before development

commenced a WRA in connection with private water supplies had to be submitted to the

planning authority for its written approval in consultation with SEPA. The petitioner

sought to do that. It applied to the respondent in terms of s 59 of the 1997 Act for approval

of a WRA it had prepared and for discharge of the condition, but the respondent did not

grant approval. The petitioner appealed to the Scottish Ministers. The reporter was not

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satisfied with the petitioner’s WRA. He issued two Procedure Notices proposing

amendments to the mitigation measures proposed. Ultimately, he issued his decision on

23 February 2017. On a proper construction of that decision I am satisfied that he approved

the final version of the petitioner’s proposals, but only as qualified by the four conditions

which he listed at the end of the decision letter. In my opinion it was that qualified package

containing the WRA with the four conditions which he approved and treated as satisfying

condition 36. It was on the basis that the WRA incorporated those conditions that he

allowed the appeal and discharged condition 36. The consequence, in my view, is that

condition 36 was indeed discharged on the date of the decision, but that the planning

permission became subject to the terms of the approved WRA including the four conditions

which the reporter had insisted upon. Condition 1 contained five conditions which had to

be satisfied before development began. The discharge of condition 36 was not postponed or

suspended pending purification of the four conditions which the reporter imposed.

[16] The reporter’s decision of 23 February 2017 provides part of the context in which the

Enforcement Notice and the Stop Notice were issued.

[17] The Enforcement Notice is under appeal, and whether the respondent may enforce it

will be determined in those proceedings. For my part, I incline to the view that the informed

reader would understand the reference in paragraph 3.1 of the Notice to “works specifically

excluded by Condition 36” and the description which follows those words as being a

reference to works specifically excluded by the WRA which was approved in terms of

condition 36 (including, of course, the conditions which the reporter imposed on

23 February 2017). In any case, although conditions 1.1, 1.2 and 1.3 are not mentioned

specifically in paragraph 3.2, the contents of those conditions are substantially incorporated

in that paragraph. The informed reader would be in no doubt that paragraph 3.2 specifies

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breach of the planning consent by the commencement of site investigations prior to the

suspensive conditions in conditions 1.1, 1.2 and 1.3 of the reporter’s decision having been

fulfilled.

[18] I come then to the Stop Notice. I am not persuaded that any of the criticisms levelled

against it, or against the decision to issue it, are well founded.

[19] In my opinion the Stop Notice requires to be read sensibly having regard to the

knowledge which an informed reader would have. In my view Schedule 2 specifies with

sufficient clarity the unauthorised activity. There is no dubiety as to the negative suspensive

conditions referred to - they are the conditions imposed in condition 1 of the reporter’s

decision of 23 February 2017. I do not think that the reference to condition 36 in the

exception renders the notice a nullity. On the contrary, construing the exception from the

prohibition sensibly, having regard to the history of the approval of the WRA with

conditions, the informed reader would understand that what is excepted are works required

to fulfil the requirements of the WRA including the conditions. I am not persuaded that

there is insufficient clarity as to the activity which is prohibited as being unauthorised. Nor

am I convinced that the Notice is inherently contradictory. It follows that I am not

persuaded that the Stop Notice is a nullity.

[20] In my opinion the respondent’s decision to issue the Stop Notice was not irrational.

It is clear on the material before me that the decision was based upon the respondent’s view

that conditions 1.1 to 1.4 had not been complied with at the date of service of the Notice.

While that appears to be a view which the petitioner and its advisers disagree with, I am

satisfied that it was a view which the relevant officers of the respondent held and were

entitled to hold. Putting the matter another way, I am content both that they did indeed

consider it expedient that the relevant activity should cease (s 140(1)) and that there was a

Page 12 ⇓

proper basis for them holding that view. Similarly, I am satisfied that the respondent was

entitled to reach the view that there were special reasons for specifying that the Notice

should have immediate effect (s 140(7)(a)). The petitioner’s submissions relating to these

matters appear to me to be a thinly veiled attempt to engage upon a merits review, rather

than a legitimate challenge to the legality of the decision.

[22] Finally, some of the material relied upon by the petitioner seemed designed to

address the merits of whether conditions 1.1 to 1.4 had been satisfied at a date after the date

of the Stop Notice - a matter disputed by the respondent. That issue is not a matter upon

which the court may properly adjudicate in these judicial review proceedings.

[23] For the foregoing reasons, the petitioner has failed to establish that the court should

grant any of the remedies which it seeks.

Disposal

[24] On 6 October 2017 I sustained the respondent’s second, third, fourth and fifth

pleas-in-law, repelled the petitioner’s first, second and third pleas-in-law, and dismissed the

petition. I found the petitioner liable to the respondent in the expenses of the petition.