Appeal judges in the Court of Session have ruled that a controversial wind farm scheme in the Highlands was properly approved, overturning an earlier decision to strike down the Scottish ministers' grant of planning consent.
Last December Lord Jones ruled in favour of the conservation charity the John Muir Trust, that inadequate public notice had been given under the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2000 of a proposed 67 turbine development at Stronelairg, near Fort Augustus, in particular advising of the impact on the environment. Further, ministers had failed properly to take into account an objection by Scottish Natural Heritage "in principle" to the development of a wind farm at that location, and in any event had failed to give adequate reasons for rejecting it.
However Lord President Carloway, Lord Menzies and Lady Smith held that the Lord Ordinary had been given inadequate information about publication of the required notices. "It is, putting matters mildly, unfortunate that the Lord Ordinary was allowed to proceed to his decision" in ignorance of the existence of notices that had actually been published, the Lord President said, delivering the opinion of the court. Although the Trust argued that further notices should have been published after additional information was received, only one such notice was required, as "The public are thereby put on guard that, thereafter, there may be further material on the council’s planning register. This poses no practical difficulty for the interested member of the public, since the website may be checked from time to time for any such material."
He added that if the regulations had not been complied with, "in order to avoid the normal consequences of a breach of a procedural requirements, the respondents would have required to establish that no different decision could have been reached, even if other representations had been received. There was no serious attempt by the petitioners to demonstrate that there were any new or different arguments that could have been presented, which had not already been considered by the respondents in the decision-making process."
On the further grounds of challenge, "The decision letter clearly addressed the substance of the SNH objection... The respondents nevertheless held that the energy benefits and the contribution the development would make to sustainable economic growth outweighed the environmental aspects. This was a planning judgment which the respondents were entitled to make."
The court also ruled that it was too late for the petitioners to challenge the refusal of a protective expenses order, as the principle that an appeal opened up all previous rulings to challenge only applied "for the purpose of doing justice in respect of an interlocutor which has been competently reclaimed. It is not competent to seek to challenge an interlocutor which has nothing to do with the merits of the interlocutor which is subject to the reclaiming motion". Nor was it practicable to do so when parties had conducted their cases on the basis of the absence of such an order. In any event, the court retained a discretion to modify an award of expenses.