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Wind Farm v. Wildlife: The Recent Judicial Review Decision

Date: 07/03/2024 | Energy & Natural Resources, Environmental

The dismissal of social enterprise’s bid to block a 77MW wind farm project shows that the courts are not keen to direct planning authorities on the juggling of competing environmental factors.

Wildcat Haven Community Interest Company – a social enterprise company which has a stated aim to “save the purity of the Scottish Wildcat” – petitioned for a judicial review of the decision by Scottish ministers to grant planning consent for the construction and operation of a wind farm in Clashindarroch Forest. It did so on the basis of an alleged failure to correctly apply certain provisions of Scotland’s Fourth National Planning Framework (NPF4).

In an opinion published on 8 February, the Court of Session Outer House ruled against the petitioner in the judicial review action in Wildcat Haven Community Interest Company v The Scottish Ministers [2924] CSOH 10

What happened?

Wildcat Haven’s judicial review petition had sought declarator that the Scottish ministers’ consent for the construction and operation of Clashindarroch (II) Wind Farm, which was granted under the terms of section 36 of the Electricity Act 1989, was unlawful. 

The conservation body had argued that when Scottish ministers had agreed with, and adopted, their reporter’s recommendations to approve consent, both parties had failed to correctly apply the mitigation hierarchy (in Annex F to NPF4), as they considered the impact of the proposed development on the local wildcat population in Clashindarroch Forest, which was contrary to Policy 3(b)(iii) of NPF4.

‘Not the Court’s role’ 

The petition was dismissed by the Court of Session Outer House. In the opinion that was published, Lord Sandison emphasised that the grant of planning consents of this nature depended on a careful balancing of many issues, and the exercise of planning judgement on those.

The Court – the judge said – does not possess the requisite knowledge and skills to predict what the outcome of an application would be if certain considerations were given greater significance during the process.

Wildcat Haven’s petition was grounded on a relatively simple point –  that the reporter erred in law by failing to have proper regard to the ‘mitigation hierarchy’ provided for in Policy 3(b)(iii) of NPF4 which, had she done so, may have led her to assessing the mitigation measures as non-compliant with NPF4. 

The position of the community interest company was that Policy 3(b)(iii) – when taken together with the definition of the mitigation hierarchy – is a significant innovation that requires decision-makers to take a sequential approach in considering mitigation measures, giving preference to those that avoid or minimise impacts over those that merely seek to offset them.

Despite this requirement, the reporter – Wildcat Haven argued – made no mention of Policy 3(b)(iii) in determining that the residual impacts on the wildcats, and other species, would not be significant.

A flexible mitigation hierarchy

The Court of Session Outer House preferred the position presented by the Scottish ministers, with respondent and developer Vattenfall as the interested party. It preferred their argument that the mitigation hierarchy was intended to be flexible, and it simply represented an option for expressing the means in which a decision-maker could be informed of the way in which it was proposed to mitigate the impact of a development, so the overall acceptability of that mitigation could be properly assessed. 

By contrast, the Court felt that Wildcat Haven’s interpretation of the policy would place too much significance on the mitigation hierarchy in terms of the determination of the grant of consent for a development of this nature.

Fundamentally, in the Court’s eyes, Wildcat Haven failed to establish that there was any material misunderstanding of the planning policy by the decision-makers. 

A matter for planning authorities

This decision highlights the challenges faced in today’s world by all those involved in the process of making and determining planning applications for renewable energy projects. As policy is changed to acknowledge the pressing nature of the climate crisis, planning authorities must weigh up various competing environmental factors, such as biodiversity and climate change targets.

The ruling represents another example of the Court making it clear that the determination of applications for wind farms is a matter for planning authorities that have the discretion to carry out the appropriate balancing exercise, and are not to be directed by the courts as to what issues should be given greater weight than others.

This article was originally published by Ends Report as ‘Why a court refused to quash a wind farm consent in the face of concerns over wild cats’ on 26 February 2024.

The matter in this publication is based on our current understanding of the law.  The information provides only an overview of the law in force at the date hereof and has been produced for general information purposes only. Professional advice should always be sought before taking any action in reliance of the information. Accordingly, Davidson Chalmers Stewart LLP does not take any responsibility for losses incurred by any person through acting or failing to act on the basis of anything contained in this publication.

Written by

LAURA TAINSH | Davidson Chalmers Stewart
Laura Tainsh

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