The Gilston Hill wind farm is a very rare example of a successful judicial review, and then planning permission being refused when the planning appeal is redecided.
The legal challenge was brought by Heriot Community Council. Background information, including a copy of the original (quashed) appeal decision is available on their website.
Successful challenges in 2019
The Gilston decision follows an unusually high success rate for judicial review in Scotland in 2019, although the three successful challenges were all brought by housebuilders who had been refused planning permission, not by objectors.
Gilston wind farm - key timeline
7 February 2019 - planning permission granted by appeal reporter
25 June 2019 - reporter's decision quashed by Court of Session
6 February 2020 - planning permission refused by a new reporter
Court of Session decision
The Court's decision is by interlocutor, which states that the Scottish Ministers acknowledged that the appeal reporter failed to address the issue of landscape impact separately from the issue of visual impact and therefore erred in law by failing to give proper, adequate and intelligible reasons for the decision. As no full court hearing was held, no judgment will be published.
(The interlocutor is available on the DPEA website, but will be removed soon as part of their archiving procedure)
Powers of the Court
If a decision is unlawful, the Court does not re-make the decision. The Court's role is to rule on legal issues; making the decision is an exercise of judgment which is for the person/ body which has the relevant information/ evidence, ie. the decision-maker.
The Court quashes the decision, leaving the decision-maker to decide the application/ appeal again.
Decision by new reporter
In accordance with usual DPEA practice, a new reporter was appointed to redecide the appeal.
The new reporter concluded the wind farm would have an unacceptable landscape and visual impact:
I recognise that the appellant believes that the landscape and visual impact of the Gilston wind farm is acceptable. I have arrived at a different conclusion, based on my consideration of the environmental information submitted and my own observations.
It is of course the reporter's role to reach his own decision. What is interesting is that he makes no reference to the previous reporter's decision, which found the landscape and visual impact to be acceptable (but he does refer to a 2013 appeal decision).
This may be a legal issue: as the decision was quashed, in law it no longer exists, so there is no decision to refer to.
It is frustrating not being able to see from the new decision why the new reporter disagrees with the previous reporter about the landscape and visual impact. As someone remarked to me, "which reporter knows best"?
The acceptability of landscape and visual impact is entirely subjective depending on the views of a single reporter. It is a continuing frustration for wind farm developers, and often objectors too, that appeal reporters are unwilling to hold inquiry sessions on landscape and visual impact, which would provide greater visibility on, and examination of, the decision making process.
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