Consenting Renewables: Recent court cases

20.05.14

Planning decisions inevitably disappoint someone. The next step is often a legal challenge. Recent court decisions show the approach taken by judges. 

Generation Licence – the Lady Clark Decision

The Sustainable Shetland case is unusual because it identified a fundamental barrier to the grant of consent under section 36 of the Electricity Act 1989. That applies to projects exceeding 50MW.

In what is now known as “the Lady Clark decision”, the judge, Lady Clark, decided that, because of the terms of the 1989 Act, a section 36 consent could not be granted unless the applicant had a generation licence.

The outcome of the appeal against that decision is awaited. Intriguingly, the judge in the Trump case (below) declined to follow the approach taken by Lady Clark.

(Petition for Judicial Review by Sustainable Shetland – Outer House, Court of Session 24 September 2013)

Setting of Listed Building

The decision-making process can be flawed if the right question has not been asked. In the words of the song, “it ain’t what you do, it’s the way that you do it”.

For example, there is a statutory requirement to pay “special regard to the desirability of preserving” the setting of a listed building. It is not enough for the decision-maker to consider the impact of a development on the setting of the listed building: considerable weight must be given to preservation of its setting.

This was the reason for the Barnwell Manor planning permission being quashed by the Court of Appeal. Although the inspector had addressed the impact of the proposed wind farm on the setting of the listed building, the Court of Appeal decided the inspector’s approach was flawed.

First, there was nothing in the decision notice to show that he had given considerable weight to the preservation of its setting. In contrast, “significant weight” had been expressly given to the Government’s renewable energy policy.

Second, the inspector had considered whether a reasonable observer would know that the turbine array was a modern addition to the landscape and was separate from the heritage asset. The judges held that this test was not supported by the policy guidance.

Third, the contribution that setting makes does not depend on there being an ability to access or experience the setting.

This is a “must read” decision for anyone involved in a project with a potential impact on the setting of a listed building.

(Barnwell Manor Wind Energy Ltd v East Northamptonshire District Council - Court of Appeal, 18 February 2014)

Court will not substitute its decision for the planners’ decision

Many legal challenges fail because the judges will not interfere with the exercise of planning judgment. This was explained by Lord Armstrong in the recent Sally Carroll case:  

 “Whilst I have some sympathy for the appellant who clearly feels strongly about the decision and its effect on her local community, it should be recognised, given my decision, that the matter was ultimately one of planning judgment. The role of the courts is not to deal with the merits of the decision, in that sense, but rather to determine the legality of the decision-making process.”

(Carroll v Local Review Body of Scottish Borders Council – Outer House, Court of Session 17 January 2014)

The Hurdle to Demonstrate Bias

The Scottish Ministers granted consent under the Electricity Act for the European Offshore Wind Deployment Centre (EOWDC). Trump International, owners and developers of the Menie Estate golf course resort development, sought judicial review.

In addition to the generation licence point mentioned above, there was also an allegation that the decision-making process was flawed because of apparent bias: several factors, either separately, or at least cumulatively, would raise in the mind of the informed, fair-minded observer a real possibility that the decision-maker was biased.

These factors included:

  • The appearance of, and actual, financial involvement of the Scottish Ministers in the project
  • The Ministers had policies which supported projects of this type
  • The Ministers’ extensive involvement in meetings and correspondence with the developer
  • Comments on, and support from Ministers for, the project
  • The decision not to hold a public inquiry
  • Site visits were made with the developer without notifying Trump International and other objectors; officials had not visited the Trump development site and had refused to meet Trump International
  • The decision letter had been issued within 24 hours of the draft decision being submitted to the Ministers

The judge held that individually most of the matters complained of were very weak. The least weak was the complaint about the First Minister’s remarks, but even that fell well short of the required threshold. So did the combined effect of the matters complained of.

(Trump International Golf Club Scotland Limited v The Scottish Ministers – Outer House, Court of Session, 11 February 2014)

Consenting the Design Envelope

Trump International also challenged the design condition imposed on the EOWDC consent, which requires a detailed design statement to be submitted for approval. It was contended that the experimental nature of the development meant that the design would change over its lifetime. The condition was therefore imprecise and unenforceable.

The judge rejected that argument. The Minister was entitled to accept that the design envelope informed and assessed impacts on a worst case scenario, which was an approach supported by Scottish Natural Heritage (SNH); and that the conditions recommended by SNH were an appropriate way to proceed in order to mitigate environmental impact.

This is further endorsement of the Rochdale envelope, which describes the process used to identify environmental impact assessment when full details of a project are not yet available. Specific parameters and stringent conditions are imposed to ensure the project remains within the anticipated boundaries of the consent application.

Protective Expenses Orders

The Aarhus Convention has resulted in new procedures being introduced in the United Kingdom to protect individuals from the high costs of litigation in environmental cases.

This is because, in court cases, costs generally follow success so that an unsuccessful objector has to pay not just their own legal costs, but also those of the other side.

The new Protective Expenses Order (PEO) procedure enables a judge to cap this costs liability. This could lead to more legal challenges by opponents of renewables projects.

A PEO was granted by the Court of Session in the Sally Carroll case (above). Lord Drummond Young’s judgment discusses the approach to be taken.

Although the legal challenge must have a “real prospect of success” before the PEO can be granted, Lord Drummond Young indicated this issue “is a fairly low hurdle” and should not be looked at too closely. He also said that considerable resources would be required if the financial test were not to be met. These comments suggest a favourable approach to the issue of PEOs.

(Carroll v Local Review Body of Scottish Borders Council – Outer House, Court of Session 12 July 2013).

Comment

This selection of recent cases shows that it is not easy to persuade judges to quash planning decisions – only the Sustainable Shetland (which is under appeal), and Barnwell Manor cases were successful challenges. That is borne out by Brodies research on planning cases in Scotland, which showed a 25% success rate. 

(Brodies research report “Judicial review of planning decisions in Scotland”, February 2013)

Contact

For further information please get in touch with Neil Collar