I’ve blogged before about the unwillingness of the Court of Session to intervene in planning decisions on wind farms. This is further demonstrated by its rejection of a challenge to the Fallago Rig consent (Petition of Dulce Packard and Others).

This case focused on the dual role of the Scottish Ministers: deciding section 36 consent applications; and promoting a policy encouraging renewable energy development.

What made this case different was that, after the reporter recommended refusal on radar impact grounds, Scottish Government officials were involved in discussions with the developers and the MOD. The objectors alleged those officials had encouraged a solution, thereby showing a bias towards the scheme being approved. That was rejected by the Court, which held that the correspondence showed that the officials had an open fair mind.

The Court referred to previous case law, which makes it clear that the Ministers’ position is quite different from someone holding a judicial or quasi judicial office. The Ministers are not required to be impartial. What they are required to do is to address the planning issues before them fairly and on their merits, even though they may approach them with a predisposition in favour of one side of the argument or the other.

The petitioners also unsuccessfully challenged the holding of the second inquiry, the use of conditions, and the adequacy of the reasons given for the decision.


Neil Collar

Partner at Brodies LLP
Neil is a partner at Brodies LLP and consistently rated as one of Scotland’s leading planning lawyers. He is well known for both his planning inquiry advocacy and his advisory work. Neil has a particular interest in renewable energy developments.
Neil Collar

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