Lord Carloway

NLEI Ltd had sought to develop a wind farm at a site on the Queensberry Estate near Crawfordjohn, Sanquhar and Wanlockhead. The Scottish Ministers refused to grant consent for the development, leading to the judicial review petition.

The appeal was heard at the Inner House of the Court of Session by the Lord President, Lord Carloway, sitting with Lord Malcolm and Lord Woolman. Steele QC and O’Carroll, advocate, appeared for the petitioners and Mure QC and Edwards, advocate, for the respondents.

Unacceptable landscape effects

On 12 June 2017 the petitioners submitted an application for consent to the construction of a 30-turbine wind farm partially located within, or adjacent to, three local Scenic or Special Landscape Areas. Over 300 objections were lodged to the application, including from Dumfries and Galloway Council and Scottish Natural Heritage, with 95 letters of support. A public inquiry was carried out by the respondents’ reporter in October 2019.

In his final report, the reporter recommended that consent for the proposal be refused. While it would provide some substantial benefits, it was concluded that it would have significant and unacceptable landscape and visual effects on the nearby SLAs. Further, the mitigatory measures proposed were insufficient to ensure that the natural beauty and historic interest of the area would be preserved. The reporter’s reasoning was adopted by the respondents in their own decision to refuse the application.

Before the Lord Ordinary, the petitioners argued that the reporter had erred in law in his interpretation of schedule 9 of the Electricity Act 1989 as the obligation to mitigate adverse effects only applied to licence holders or exempted persons under that Act, with the petitioners falling into neither. The Lord Ordinary accepted that there had been a clear error law, however, the error was not material as the respondents remained under a separate obligation to consider the criteria in paragraph 3(2)(a) of the schedule.

Counsel for the petitioners argued that the error of law had been material, as an absolute environmental duty had been wrongly placed on the petitioners. The reporter had failed to take into account new interim net zero targets for 2030 or 2040. The Lord Ordinary erred in determining that there was nothing which stated that climate change should be the sole or determining factor. That had not been argued; only that the correct legislation should be applied. These failings resulted in a flawed balancing exercise.

Simple conclusion

Lord Carloway, delivering the opinion of the court, observed: “The court agrees with the petitioners’ general proposition that, where there has been an identifiable error on the part of a decision -maker, the court should be slow before deciding not to quash that decision. However, in order to merit reduction of the resultant decision, the error must be a material one, in the sense that, had it not been made, the decision might have been different. It is not disputed that both the reporter and the respondents erred in law in so far as they considered that paragraph 3(1)(a) of schedule 9 to the 1989 Act imposed an obligation on the petitioners.”

He continued: “The question is whether these errors were material to either the recommendation or the decision. Had they not been made, was there a real possibility that the recommendation and decision would have been different? The Lord Ordinary held that the error made no difference. The court agrees.”

Explaining the court’s reasoning on this point, Lord Carloway said: “[The reporter] detailed meticulously the myriad of applicable statutory provisions and governmental policies, before reaching what was ultimately a simple conclusion of planning judgement. That was, in short, that the proposal would have unacceptable significant landscape and visual effects which would adversely affect the scenic quality of several nearby designated areas. Critically, these were not outweighed by what were accepted to be important renewable energy benefits. This basic conclusion exists independently of the reporter’s, and respondents’, erroneous conclusion on the petitioners’ mitigatory measures.”

He concluded: “It may be that a decision which prefers the preservation of an atmosphere of isolation and remoteness over the attainment of energy targets will not meet with universal approval, but it is quintessentially one of planning judgement which Parliament has assigned to the organs of government and not the courts to resolve. The reporter and the respondents may have made some errors of law. Had they not been made, the result would have been the same.”

The reclaiming motion was therefore refused.