The Court of Session has quashed the section 36 consent granted by the Scottish Ministers for the Stronelairg wind farm. The Ministers are considering an appeal.
The challenger, The John Muir Trust, described it as “a victory for wild land protection”. However, the Court was satisfied with the Ministers’ reasons for deciding that the impact on wild land of the proposed development did not warrant refusal of consent. The judge rejected the JMT assertion that “safeguard” means prohibiting all development which would have an adverse impact on wild land.
The consent was quashed on three grounds:
- the report by Highland Council should have been advertised as “additional information” under the EIA Regulations (the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2000, which have different wording than the equivalent English Regulations)
- the lack of any indication that the Ministers took into account Scottish Natural Heritage’s objection in principle to any wind farm development at Stronelairg
- failure to give adequate reasons for not following SNH advice on mitigation
The second and third grounds relate to deficiencies in the decision letter, which the Ministers can address.
We are frequently asked by developers about whether new information is supplementary environmental information (SEI) and therefore requires advertisement etc. This case involved a different, and more unusual, scenario: rather than the developer providing the information, it was the Highland Council committee report on the application which contained a substantial amount of factual information about the visual impacts of the development, which emerged as a result of the Council’s own investigations, aided by SNH. Some of that information was not contained in the developer’s environmental statement. The judge held that the public were denied the opportunity to comment on that information.
The decision also underlines the importance of process. The Energy Consents Unit have become increasingly conscious of the risk of challenge on procedural grounds, and take great care to try to avoid procedural mistakes. But it is the developer’s consent which is at risk, so developers should also review the process being followed and make sure there are no procedural mishaps.
On December 8, 2015