Someone asked me recently if the Scottish Ministers ever overturned a reporter’s recommendation. The example I always give is the decision to approve the M74 Northern Extension contrary to the reporters’ recommendation. A subsequent legal challenge by Friends of the Earth was withdrawn mid-way through the court hearing.

The scope for the Ministers to disagree is illustrated in the recent English High Court decision dismissing a legal challenge by Samuel Smith Old Brewery (Tadcaster) to a section 37 consent for an overhead electricity line in Yorkshire.

The inspectors (equivalent of reporters) had recommended the application be refused, because the benefits of the proposal did not clearly outweigh the harm to the openness of the Green Belt land. SSOBT must have been very disappointed when the Secretary of State did not follow that recommendation, but instead granted the consent, after balancing the additional cost of an underground cable solution and any delay that would cause, against the adverse visual impact to the landscape.

The judge provided a useful explanation of the scope for the court to overturn the decision:

“The fact that I have upheld the SoS’s decision does not mean that the views of SSOBT or the conclusions of the Inspectors were wrong or unjustified. This judgment amounts to  no more than a determination by the court that the decision of the SoS was not contrary to law.”

The High Court also held that the SoS’s decision on the section 37 application was not bound by the duty in the Planning Acts to determine applications in accordance with the provisions of the development plan unless material considerations indicate otherwise.

Neil Collar