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LESLIE SINCLAIR AGAINST THE SCOTTISH MINISTERS AND ANOTHER [2022] ScotCS CSIH_49 (05 October 2022)
URL: http://www.bailii.org/scot/cases/ScotCS/2022/2022_CSIH_49.html
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[2022] ScotCS CSIH_49,
2023 SCLR 45,
2022 GWD 34-507,
[2022] CSIH 49
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2022] CSIH 49
XA7/22 and XA8/22
Lord President
Lord Turnbull
Lady Wise
OPINION OF THE COURT
delivered by LORD CARLOWAY, THE LORD PRESIDENT
in the appeals under the Town and Country Planning (Scotland) Act 1997
by
LESLIE SINCLAIR
Appellant
against
THE SCOTTISH MINISTERS
Respondents
and
ORKNEY ISLANDS COUNCIL
Interested Parties
____________
Appellant: JD Campbell KC; Campbell Smith LLP
Respondents: Crawford KC, Edwards; Scottish Government Legal Directorate
Interested Parties: N McLean (sol adv); Brodies LLP
2
5 October 2022
Introduction
[1]
The appellant, who lives in Kirkwall, appeals against the respondents' decisions to
grant planning permission to construct two community wind farms, each consisting of six
turbines, at Quanterness and Lyness in the Orkney Islands. The applications were made on
behalf of the interested parties. In broad terms, the purpose of the wind farms is said to be:
the generation of income; a response to the climate emergency; and the strengthening of the
case for an interconnector between Orkney and the mainland.
[2]
The applications were called in by the respondents. The respondents' reporters
recommended refusal. The respondents disagreed. They granted permission subject to a
condition that no development should take place until final approval for the interconnector
is given by the Office of Gas and Electricity Markets. The question is whether the
respondents have acted unlawfully in granting these permissions.
[3]
The parties were agreed that the Lyness appeal should be determined first and that
the same result should follow in the Quanterness appeal. The focus is then on the Lyness
case. At the heart of the matter is the fundamental statutory requirement that any
determination must be made in accordance with the development plan "unless material
considerations indicate otherwise" (Town and Country Planning (Scotland) Act 1997,
s 25(1)). Statements in the National Planning Framework are a material consideration
(s 25(2)).
NPF3 (2014)
[4]
The Scottish Government's National Planning Framework 3 contains a number of
policies which are designed to influence future planning decisions. Many are expressed at a
3
high, almost abstract level. On the subject of sustainability, there is an emphasis on
renewable energy and the need to lower greenhouse gas emissions (para 2.7). Specifically in
relation to Kirkwall NPF3 records that:
"Improved grid connection will be a vital component in the future success of
Orkney's marine energy sector. As part of this, there will be opportunities to
develop new technologies and approaches to harness renewable power generation
on and around the islands" (p 28).
[5]
Referring to the desirability of Scotland being a low carbon place, NPF3 recognises
not only the strong public support for wind energy but also adverse impacts of onshore
proposals (3.7). There is a desire to capitalise on Scotland's wind resource, with an
expectation that marine energy will overtake onshore development (3.9). Both terrestrial
and marine planning have their places to play, linking generation with consumers and
guiding new infrastructure to new locations (3.12; 3.38).
[6]
Onshore wind is said to continue to make a significant contribution to the
diversification of energy supplies (3.23). Electricity grid enhancements are required to
facilitate increased renewable generation, notably a high voltage transmission network (see
Annex A map). There was a need for "areas that are remote from the main grid to realise
their renewable energy potential" (3.28). The deployment of both onshore and offshore
energy is promoted (3.32). Marine planning had identified opportunities for offshore wind
farms on the west coast and wave and tidal energy off the north and west coasts and the
islands (3.35).
[7]
NPF3 refers specifically to the need for an interconnector between Orkney and the
mainland (3.40). It states that:
"Strengthening the electricity grid will be essential in unlocking renewable resources,
both onshore and offshore. Interconnectors to the Western Isles, Orkney and
Shetland and onshore connections for offshore renewables on other parts of the coast
4
are all required to fully realise the potential for diverse and widely distributed
renewable energy development" (see also p 63).
It calls Orkney, the Pentland Firth and North Caithness one of several "areas of co-ordinated
action" in which LDPs ought to promote "low carbon infrastructure" (3.41). It states that:
"Onshore and offshore grid connections, including an ... interconnector, will be
essential in fully realising this potential" (p 40).
Ofgem
[8]
In March 2018, Scottish Hydro Electric Transmission submitted a final needs case to
the Office of Gas and Electricity Markets; that is the United Kingdom government
department tasked with the approval of major electricity infrastructure proposals (see the
Electricity Act 1989 s 3A). The case is for a 220MW interconnector between Orkney and the
mainland. SHE-T identified what they said was a significant potential in Orkney for the
generation of renewable, notably wind and tidal, energy. This was only realisable if the
connector were laid, both to export this energy to the mainland grid and to import power
when necessary. On 16 September 2019 Ofgem approved the final needs case. They
concluded that the case was "well justified and represents value for money". It is a
condition of the approval that, no later than December 2022, SHE-T demonstrate that there is
planning consent and finance for projects which could generate 135MW of new electricity.
Applications, including Quanterness and Lyness, have now been made for permission to
build a number of windfarms.
The Development Plan
[9]
The Orkney Local Development Plan 2017 has a number of policies which are
relevant to the proposals. Policy 1 is in very general terms. It provides that development
5
will be supported where, amongst other things: it takes into consideration the location and
the wider landscape and coastal character; it preserves the amenity of the surrounding area;
it protects the green infrastructure, landscape and the wider environment; and it protects
Orkney's cultural heritage resources.
[10]
Policy 7 focuses on energy. It supports the development of renewable schemes,
including onshore infrastructure, if it does not result in "significant adverse effects on
known constraints" (7Ci). Economic benefits are a consideration to be balanced against
adverse impacts (7Ciii). There is specific guidance about onshore windfarms (7D). Several
factors are enumerated to ensure that there are no significant adverse impacts (7Di).
[11]
Policy 8 deals with landscape development which has a significant adverse impact
on cultural heritage assets. It will only be permitted if mitigation is put in place and any
impact is outweighed by the social, economic, environmental or safety benefits of the
proposal (8A). Exceptional circumstances are needed if there is an adverse effect on the
setting of a scheduled monument (8Biv). Policy 9 concerns itself with the Natural Heritage
and Landscape. All proposals require to minimise negative impacts (9Gi). If the "wild
land" on Hoy is involved, significant effects have to be substantially overcome (9Giv).
The reporters' recommendations
[12]
The Quanterness and Lyness applications were made respectively on 31 January and
25 September 2020. Quanterness is on mainland Orkney whereas Lyness is on Hoy. They
were called in on 24 March and 16 October 2020, not only because of the obvious conflict of
interest but also because the applications raised a matter of national concern, viz: their
contribution to Ofgem's new generation target of 135MW. Each proposal is for six turbines,
generating up to 28.8MW (ie a total of 57.6MW). They are part of a "Community Wind Farm
6
Project" which is described in a document, namely "A transmission link for Orkney ...",
commissioned by the interested parties. This explains that the existing distribution network
in Orkney, which connects with the mainland via two sub-sea cables, is operating at full
capacity. There has been a moratorium on new grid connections for some ten years. This
has severely limited generation growth on islands which are rich in renewable energy
sources, including long standing onshore wind developments and a more recent
exploitation of wave and tidal energy.
[13]
A different reporter was appointed to each application and each was determined on
the basis of written submissions and unaccompanied site visits. Each reporter
recommended refusal of the application.
[14]
The report on Lyness is dated 3 September 2021. The reporter did not consider that
the proposal's contribution to either the Orkney and Scottish economies would be
significant, given the "modest numbers of turbines" (12.4). Its contribution to energy targets
would be limited. He accepted that the proposal had the potential to assist the delivery of
the interconnector, but "the lack of a direct connection between the approval of this scheme
and the delivery of the interconnector means this should also be limited" (12.5). The
presumption in favour of proposals which contributed to sustainable development was
another positive feature, but the adverse effects undermined any contribution to climate
change mitigation (12.6).
[15]
The reporter addressed each relevant LDP policy (1, 7, 8 and 9). He held that the
proposal was not supported by these. On policy 1, the proposal had not been located and
designed with the wider townscape, landscape and coastal character in mind. The scale was
excessive. Local amenity would not be preserved, although adverse impacts were not so
severe as to be unacceptable. The natural heritage, including landscape and the effect on the
7
former naval HQ, was not protected. There were a number of adverse individual and
cumulative impacts in relation to policies 7C and 7D. The proposal would have a significant
adverse effect on landscape character and visual amenity, including an effect on the setting
of the naval HQ. The impact on the HQ, which is a category A listed building, was an
additional feature in relation to policy 8. The proposal was in conflict with policy 9G
because of its failure to minimise negative impacts on landscape and seascape character,
including the Hoy Wild Land Area. Although the reporter noted that the proposal complied
with a number of LDP policies, it did not comply with several others. Overall, it did not
comply with the development plan (12.26) and the material considerations in its favour did
not overcome that conflict (12.28). The earlier decision (19 January 2021 with an addendum
on 5 August 2021) on Quanterness was to a similar effect.
The respondents' decisions
[16]
In decision letters dated 21 December 2021, the respondents disagreed with the
reporters. On Lyness, the respondents agreed with the reporter on adverse landscape and
visual effects (para 22). The proposal was contrary to policies 1, 7D(i) and 9G (24, 25 and 26).
There would be effects on the formal naval HQ and nearby cemetery (27). Mitigation
measures had not been proposed but, in contrast to the reporter's view, any loss was
outweighed by the benefits. The proposal did accord with policy 8 (29).
[17]
On the interconnector, the respondents gave considerable weight to the Lyness
reporter's observation that it was not disputed that without the proposal "there is no
likelihood of [the] 135 Megawatt target being achieved within the identified timescale" (33).
The interconnector was a national priority and had to be given substantial weight as a
material consideration (34). The respondents agreed that, overall, the proposal did not
8
comply with the development plan. They accepted that planning permission should not be
given unless material considerations indicated otherwise (35). These considerations
included the proposal's contribution to climate change mitigation, the transition to a low
carbon energy economy, and the net economic and social benefits. Echoing what was also
said in the Quanterness decision (at paras 29 and 31) the respondents continued:
"37.
... the contribution ... to the interconnector needs case would be a significant
benefit... [The respondents] give this substantial weight as a material consideration.
Adding this to the other benefits of the proposed development, [the respondents]
consider that the material considerations warrant granting permission for the
proposed development as a departure from the development plan. [The
respondents] consider that whilst the proposed development would have significant
adverse impacts on the landscape... cultural heritage, and visual amenity... its
benefits outweigh those impacts.
38.
[The respondents] consider it important to prevent a situation whereby the
Final Needs Case fails to receive Ofgem's final approval but the proposed
development is still constructed. Such a situation would mean the contribution to the
needs case ... ultimately proved ineffectual whereas the adverse impacts of the
proposed development would still arise. Permission is therefore subject to a
condition which prohibits the commencement or development unless and until
Ofgem have approved the Final Needs Case for the interconnector project."
Submissions
Appellant
[18]
There were two grounds of appeal. The first was that the respondents' decisions
were predicated on a factual error. The second was that the respondents' reasoning was
"irrational".
[19]
The factual error stemmed from the absence of a connection between securing
approval for the interconnector and planning permissions for onshore windfarms. The
desire for an interconnector came from aspirations for growth in the marine energy sector.
The interconnector was designated as one of a series of "areas of co-ordinated action" (NPF3
para 3.41) with "opportunities for marine renewable energy development" and "grid
9
connections, including an ... interconnector ... essential in fully realising this potential"
(p 40). This all related to the potential of marine renewable energy. NPF3 set ambitions for
the growth and connectivity of marine and offshore energy but not onshore generation on
Orkney. It emphasised the need to protect the Orcadian natural and historic environment as
well as producing energy growth and the importance of "[i]mproved grid connection ... in
the future success of Orkney's marine energy sector" (p 28).
[20]
It was the potential for "wave and tidal energy" (para 3.35) and "onshore
connections for offshore renewables" (para 3.40) which was emphasised. NPF3 discussed
opportunities for "marine renewable energy development" (p 40) stating that grid
connections, including the interconnector, were essential. It did not encourage the growth of
onshore wind projects in Orkney if they did not accord with the LDP. It did not refer to
onshore wind turbines fulfilling a quota to secure the final needs case approval.
[21]
The respondents had agreed with the reporters' summaries and descriptions of, and
with most of their conclusions on, the significant effects of the proposals on the natural and
historic environment. The reporters found that the proposals did not conform with the LDP.
The respondents agreed with that, but held that there were material considerations
warranting the grant of permission. This was based on the false premise that the aggregate
capacity of the proposals would make a significant contribution to the needs case when they
were irrelevant to it.
[22]
On the reasons challenge, the appellant relied on the summary of the law provided
in North Lanarkshire Council v Scottish Ministers 2017 SC 88 (at para [27]). The respondents
erroneously held that the implications of refusing permission would result in the needs case
not being made out. However, the respondents accepted that the proposals did not of
themselves secure the delivery of the interconnector. The interconnector's potential benefits
10
could not be attributed to the proposal. The respondents said, on the one hand, that there
could be no interconnector without the contribution from the proposals, yet, on the other
hand, they said that, even with permission, the interconnector could not be secured. The
proposals could not reasonably be described as providing any benefit to the needs case. The
connection between the contribution, which would be made by the proposals, and the needs
case was at best tenuous.
Respondents
[23]
The respondents countered that they had carefully set out the considerations and the
balancing exercise as explained by the reporters. They concluded that the importance of the
interconnector and the contributions from the proposals to the needs case deserved
substantial weight as a material consideration. When taken with the economic benefits of
the proposals, the contributions to sustainable energy and the climate emergency
outweighed any adverse impacts. The respondents had identified these impacts. They had
regard to NPF3 and the aims of the interconnector. The condition in relation to approval of
the needs case was intended to prevent a situation whereby the latter failed and approval
still remained.
[24]
Interpretation of planning policy and its application should not be elided; the latter
being a matter of planning judgement (Hopkins Homes v Communities Secretary [2017] 1 WLR 1865
at para 26). It was well established that planning benefit was a relevant and material
consideration; the weight to be placed on this being a matter for the decision-maker (Tesco
Stores v Secretary of State for the Environment [1995] 1 WLR 759 at 780). In light of the
respondents' policy goal of an interconnector, as expressed in NPF3, it was lawful for the
respondents to place significant weight on the potential contributions of each of the
11
proposals in delivering the needs case. The appellant's submission ignored the condition. If
Ofgem did not approve the final needs case, development of the windfarms would be
prohibited. In the absence of approval of the needs case for the interconnector, the adverse
impacts would outweigh the benefits.
[25]
The appellant's challenge was no more than a disagreement about the weight to be
placed on competing material considerations. The respondents had a policy aim to have an
interconnector. The application of policy in particular cases was for the decision-maker,
subject only to review on conventional grounds (Tesco Stores v Dundee City Council 2012 SC
(UKSC) 278 at paras 17-19). The argument that NPF3 only supported sustainable energy on
Orkney from wave and tidal sources was misconceived. That was an important potential
source, but it was not to the exclusion of onshore windfarms.
[26]
The respondents had carefully set out the adverse impacts. They decided to place
significant weight on the contribution of the proposals to the needs case. This was a proper
and lawful interpretation of their own policy. The weight to be placed upon it was a matter
for the respondents. The decisions contained full reasons setting out the material
considerations, the views which the reporters took of them, where these were agreed by the
respondents and why and when they were not. The letters contained substantial reasons
explaining why planning permission was granted. The appellant had no room within which
to be unclear or in doubt about the reasons. The test in Wordie Property Co v Secretary of State
for Scotland 1984 SLT 345 (at 248) had been met.
Interested parties
[27]
The interested parties submitted that it was agreed that NPF3 was a material
consideration. The need for an interconnector was supported by NPF3. The application of
12
NPF3 to the interconnector was not restricted to marine and offshore energy generation.
NPF3 provided that "[s]trengthening the electricity grid will be essential in unlocking
renewable sources, both onshore and offshore" (para 3.40). It stated that key connections
included links to Orkney, Shetland and the Western Isles and interconnectors to emerging
international grid networks (para 6.4). The Annex (A) to NPF3 described the statements of
need for national developments. The need for a high voltage electricity transmission
network applied to both onshore and offshore electricity.
[28]
LDP policy 8 provided that permission should not be granted unless material
considerations indicated otherwise, but these included contributions to climate change
mitigation and transition to a low carbon energy economy, along with the net economic and
associated benefits. The cumulative benefits of the interconnector had been set out in the
interested parties' Environmental Impact Assessment Report. This referred to a 2019 study
that a 220MW connection could produce between £46 and £417 million. The community
windfarm projects on Orkney were critical to the interconnector. The interconnector was
fairly and reasonably related to the proposal.
[29]
The respondents had provided proper, adequate and intelligible reasons which left
the informed reader in no real or substantial doubt about what they were. The reasons for
departing from the conclusions of the reporters were equally clear (Moray Council v Scottish
Ministers 2006 SC 691 at 28-30). A reasons challenge could only succeed if the party
challenging could satisfy the court that they had been substantially prejudiced. The
appellant had not shown any such prejudice.
13
Decision
[30]
Each of the respondents' decisions, following upon their reporters'
recommendations:
"... must, in short, leave the informed reader and the court in no real and substantial
doubt as to what the reasons for it were and what were the material considerations
which were taken into account in reaching it" (Wordie Property Co v Secretary of State
for Scotland 1984 SLT 345, LP (Emslie) at 348).
There is no difficulty in understanding the respondents' reasons and what material
considerations were taken into account.
[31]
The respondents agreed with their reporters that the proposals were, overall, not in
accordance with the Orkney Local Development Plan (2017). Specific policies which were in
conflict with the Lyness proposal (1, 7D(i) and 9G) were highlighted. In order to grant
permission, there would have to be material considerations which would "indicate
otherwise" in favour of such a grant (Town and Country Planning (Scotland) Act 1997,
s 25(1)). The strategic objects in the National Planning Framework 3 might constitute such a
consideration (ibid s 25(2)).
[32]
The reporter found that the limited nature of the Lyness proposal, which was after all
for only 6 turbines on islands with many hundreds, meant that its contribution either to the
Orkney or the Scottish economy would be limited. Granting permission would not
guarantee the construction of the interconnector. That was a matter of planning judgement
for the ultimate decision maker, namely the respondents, to assess. The respondents
rejected the reporter's reasoning. It was not disputed that, without the contributions from
what were admittedly modest community windfarms, there was no likelihood of the
interconnector going ahead. That was a national priority. Therefore, as a matter of planning
judgement, there were material considerations which dictated that permission ought to be
14
granted in the face of the LDP policies on, inter alia, landscape, seascape and amenity. This
much is clear. If it is correct, the reasoning cannot be faulted as inadequate or opaque.
[33]
There is no error of fact detectable in the respondents' reasoning. Contrary to the
appellant's substantive submission, NPF3 does not confine itself to promoting the
interconnector only in relation to the transmission of marine (wave and tidal) energy. It
refers on several occasions to the importance of onshore generation in the context of the
interconnector, even if it does emphasise the prospects of increasing marine sources. The
references commence with the stressed importance of enabling power generation "on and
around the islands" (p 28, emphasis added). The pluses and minuses of onshore generation
are discussed (para 3.7). Even if marine energy has the potential to overtake onshore
sources, terrestrial planning has its place to play (3.12, 3.25, and 3.38). The interconnector is
said to be required to unlock renewable sources "both onshore and offshore" (3.40) in order
to realise a "diverse and widely distributed renewable energy development" (3.40 and p 63).
[34]
The nexus between the proposals and the interconnector is clear. It is true that the
grant of permission cannot guarantee that the interconnector will be built. That is not the
point. Without contributions from these community projects, there is "no likelihood" of the
target of 135MW being met in time. On that basis, the only conclusion is that, if permission
is not given, there will be no interconnector. That would amount to a failure to deliver a
strategic national objective. The interconnector is "essential" to unlock onshore and offshore
resources, of which Orkney has a plentiful supply and which have the capacity of
contributing to the mitigation of climate change and the reduction of carbon emissions. The
grant of permission is essential for the interconnector and the latter is essential not just in
relation to the individual community windfarms, for which applications have been made,
15
but also in opening up the prospect of further onshore and offshore developments when the
moratorium on connecting to the grid is ended with the interconnector.
[35]
Given the condition which prohibits development of the proposals until the final go-
ahead is given for the interconnector, the respondents' decisions to grant permission cannot
be faulted as a matter of law. They amount to planning judgements with which the court
will not interfere other than on clear conventional grounds. No such grounds are present.
Ultimately, the challenge which the appellant has mounted is one which does no more than
to seek to criticise the amount of weight placed by the respondents, as distinct from their
reporters, on the importance of the contribution to the interconnector needs case. Such a
challenge cannot succeed (see NLEI v Scottish Ministers [2022] CSIH 39, LP (Carloway),
delivering the opinion of the court, at paras [62] and [63]).
[36]
The appeals are refused.
