The Scottish ministers granted consent for Vattenfall Wind Power Ltd to build and operate a windfarm at Clashindarroch Forest. Wildcat Haven Community Interest Company argued in their petition that the Ministers had failed to correctly apply the mitigation hierarchy as contained in the Fourth National Planning Framework.

The petition was heard by Lord Sandison. J Findlay KC and Colquhoun, advocate, appeared for the petitioners, Crawford KC and Welsh, advocate, for the respondents, and Mure KC for Vattenfall as an interested party.

Regard to the hierarchy

Clanshindarroch Forest was home to an unknown number of Scottish wildcats, and it was accepted that development of the windfarm would involve disturbance to that population. An Environmental Impact Assessment and outline Habitat Management Plan was commissioned by Vattenfall which proposed a number of measures aimed at mitigating that impact.

As a result of opposition to the application by Aberdeenshire Council as the local planning authority, a public inquiry was held before a reporter appointed by the Scottish Ministers. The reporter’s initial report of 17 October 2022 recommended refusal of the application, however a subsequent report recommended approval after the Ministers remitted the application for further consideration in light of changes to national planning policy effected by NPF4.

Per the NPF4, a mitigation hierarchy addressed the order in which the impacts of developments should be considered and addressed. The specified order was Avoid, Minimise, Restore, and then Offset. The petitioners’ case was that the reporter failed to have proper regard to this hierarchy and, had she done so, she might have assessed Vattenfall’s proposed measures as non-compliant.

Senior counsel for the petitioners submitted that the reporter ought to have started by considering whether the anticipated negative impacts of the development could be avoided or minimised before considering whether the proposals to offset the impact were acceptable. It was noted that the contrary conclusions of the first and second reports demonstrated the decision was one in fine balance, and had the hierarchy been applied correctly it could well have resulted in a different conclusion.

Considerable change

In his decision, Lord Sandison observed: “The petitioners in essence submit that the effect of Policy 3(b)(iii) is to require the decision-maker to adopt a sequential and specifically-weighted approach to consideration of mitigation measures, in accordance with the mitigation hierarchy. The respondents and the interested party in turn maintain that that policy highlights how developers should set out their proposed mitigations in a way which will enable relevant information to be presented in a helpful way for decision-makers, [but it] does not materially innovate on the existing legal requirements for the content of an EIA report.”

He continued: “It is for the court to determine the true interpretation of the policy, bearing in mind that that task is not to be conducted in any peculiarly legalistic manner, but rather (bearing in mind the broad nature and purpose of policy documents of the kind in question) objectively, in accordance with the language used viewed in its proper context.”

Examining the operation of the hierarchy in practice, Lord Sandison said: “There is nothing in the context in which NPF4 sits which might suggest that any alternative interpretation of the words of Policy 3(b)(iii) from that which at first blush appears should be favoured. The interpretation urged by the petitioners would effect a considerable change in the significance of the mitigation hierarchy for the determination of the grant of consent for national or major development, or for development requiring an EIA.”

He went on to say: “While I accept that it is possible that the 2017 Regulations may not have been tweaked to conform more closely with what is said by the petitioners to be the correct interpretation of Policy 3(b)(iii) in NPF4 for a variety of reasons, the disconnect which would exist between that interpretation and the legal requirements for the provision of information in the regulations is, at the very least, not something which suggests that that interpretation is one of which the context surrounding the policy is supportive.”

Lord Sandison concluded: “It is clear that many interested individuals, as well as the petitioners, entertain reasonable and serious concerns about the effect of the proposed development on the wildcat population at Clashindarroch. However, it has not been established that the decisions made by the reporter and ultimately by the Ministers were attended by any error of law. In those circumstances there is no room for intervention by the court.”

The petition was accordingly dismissed.