Community Windpower Ltd originally acquired permission to build the development in Moscow, East Ayrshire at a site owned in trust on behalf of FIM Sustainable Timber and Energy LP. Both parties submitted appeals, which were decided jointly.

The appeals were heard by Lord Brodie, Lord Malcolm, and Lord Pentland.

Disruption to water supply

The original permission was granted subject to 47 conditions. A number of these were then removed, resulting in a new permission being granted in October 2014. One of the conditions attached to the new permission was one requiring the protection of the quality and quantity of private water supplies.

Following an application to the Scottish Ministers to discharge that condition, supplemental conditions were imposed in its place “to ensure that satisfactory mitigation measures are in place before the start of development”, as there were still concerns about disruption to the water supply of neighbouring properties. A particular degree of risk had been identified in relation to the existing supply to three properties: Tayburn, Muirburn and Alton Lodge.

Fulfilment of the SCs was a precondition to beginning development. In July 2017 the first appellant provided the planning authority, East Ayrshire Council, with documentation that it considered fulfilled the conditions. The council disputed this, and indicated the first appellant should cease work on the site immediately.

The parties were unable to resolve the dispute, and an enforcement notice was later served by the council on the appellants alleging a breach of planning control by the commencement of site investigation works, including the drilling of proposed turbine locations, prior to fulfilment of the SCs.

The appellants lodged an appeal to the Scottish Ministers challenging the enforcement order on the grounds that their actions did not constitute a breach of planning control and that the steps required to be taken by the notice exceeded what was necessary to remedy the stated breach.

The first appellant had drilled boreholes in the area, which were intended to supply water to the properties mentioned in the SCs, however they were not yet connected by pipeline to those properties. The reporter found that, should this water supply become unusable, there was not a fully operational replacement water supply that could immediately be turned on at those properties. There was also no evidence as to the quality of the water at the point of use. In many cases, there was also a lack of consent from the property owners as to the implementation of the appellants’ preferred methods of fulfilling the SCs.

The decision of the reporter granted the appeal in certain respects but upheld the enforcement notice in as far as it related to SCs 1.1 and 1.2. Thus, the appellants were still in breach of planning control. This decision was appealed to the Inner House, on the same lines of argument as the original appeal.

Some sympathy

The opinion of the court was delivered by Lord Brodie. After an outline of the matters agreed by all parties, he said: “We have some sympathy with the position of the appellants. It is clear that in imposing the Supplemental Conditions in place of condition 36, [the first reporter] was concerned to secure the quality and the quantity of the water supplies available to the properties which might be affected by the development. It is equally clear that he considered that either of the alternatives identified in SC1.1 and SC1.2 would achieve that. He cannot have intended that a provision to mitigate the possible adverse effects of the development on the relevant properties should become a means whereby the proprietors could prevent the development proceeding. The reporter accepted that. It might therefore be thought reasonable that if the first appellant has done everything in its power to make available to proprietors what [the first reporter] considered to be a technically sufficient solution to mitigate the risks, then the suspensive conditions should be held to have been purified.”

However, he continued: “We do not consider that the [second] reporter erred in her interpretation of the suspensive condition and we do not consider that she erred in deciding that the first appellant was in breach of planning control. While that is all we need say, we would add this. The condition is not said to be unreasonable. It requires a result to be achieved by one of two means, each of which is acceptable. It was imposed in the public interest but with identifiable private interests particularly in view. As must have been evident to [the first reporter] when he imposed the condition, achieving the result would require agreement among the various interests involved. That does not appear to be impossible.”

Regarding the quality of the water, he said: “The first appellant argued that it was unreasonable for the reporter to require test results from a point at the taps when she knew that such a requirement could not be fulfilled given the proprietors’ lack of cooperation. We do not see that reasonableness comes into the matter. The condition imposed an objective requirement. The reporter found that it had not been met. We do not consider that in doing so she erred.”

On SC 1.2 he said: “Again, SC1.2 requires a result or state of affairs, not simply the first appellant’s best effort to achieve that result or state of affairs. As we have already observed, these are not conditions which require the first appellant to do anything. That it has tried its best but failed by reason of the actions of others is nothing to the point. That the parties for whose benefit the mitigation is conceived have failed to cooperate in its implementation cannot alter the meaning of the Supplementary Condition which is intended to provide for that mitigation. SC1.2 does not confer ‘optionality’ on the first appellant any more than SC1.1 does.”

He continued: “In our opinion, the reporter did not err in her interpretation of the suspensive condition. A holding tank had to be ‘at the property’ and it had to be capable of being ‘immediately connected’. The reporter recognised that ‘immediately’ takes its precise meaning from context. Part of that context is the more or less continuous need for a water supply, but the reporter accepted that time would be required for a water contractor to be mobilised, but ‘once mobilised’ the state of affairs should be such that the contractor ‘has only to deliver the water to fill the tank and enable immediate connection to be made’. We agree with the reporter. Accordingly, given her findings of primary fact, we do not consider that she erred in deciding that the first appellant was in breach of planning control by reason of the commencement of development before purification of SC1.2(b).”

After dismissing other ancillary parts of the appellants’ arguments, he concluded: “We have considered each of the material attacks made by the appellants on the Decision. We have found none of them to be well-founded. We shall refuse the appeals.”