Application of Mitigation Hierarchy in Judicial Review: Wildcat Haven CIC v Scottish Ministers [2024] CSOH 10

Introduction

The case of Wildcat Haven Community Interest Company (CIC) v Scottish Ministers ([2024] CSOH 10) presents a critical examination of the application of the mitigation hierarchy as stipulated in the Fourth National Planning Framework (NPF4) within the context of consent for wind farm development. The petitioners, Wildcat Haven CIC, sought a judicial review of the Scottish Ministers' decision to grant consent for the construction and operation of the Clashindarroch (II) Wind Farm. Central to their argument was the alleged failure of the decision-makers to appropriately apply Policy 3(b)(iii) of NPF4, which emphasizes the mitigation of negative environmental impacts in line with a defined hierarchy.

The key issues revolve around whether the Scottish Ministers and the appointed reporter sufficiently adhered to the mitigation hierarchy, particularly prioritizing avoidance and minimization of environmental impacts over offset measures, as mandated by NPF4. The parties involved include the petitioners represented by J. Findlay, KC, Colquhoun and R & R Urquhart LLP; the respondents, Scottish Ministers, represented by Crawford, KC, Welsh and SGLD; and the interested party, Vattenfall Wind Power Ltd., represented by Mure, KC and Eversheds Sutherland LLP.

Summary of the Judgment

The Scottish Court of Session, presided over by Lord Sandison, delivered a judgment wherein it upheld the decision of the Scottish Ministers to grant consent for the Clashindarroch (II) Wind Farm. The court found that the decision-makers had appropriately considered and applied NPF4, particularly Policy 3(b)(iii), in their assessment of the proposed development's impact on the local wildcat population. The petitioner's challenge to the application of the mitigation hierarchy was dismissed, with the court asserting that there was no substantial error in law or rationality in the decision-making process.

Analysis

Precedents Cited

The judgment extensively references established case law to delineate the boundaries of judicial review in planning decisions. Notably, it cites:

St Modwen Developments v Secretary of State for Communities and Local Government [2017] EWCA Civ 1643 - Emphasizing the leniency in reviewing planning decisions, focusing on the legality rather than the merits.
Tesco Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759 - Highlighting the exclusivity of decision-makers in attaching weight to material considerations without court interference unless irrational.
Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT - Reinforcing that planning policies should not be construed as statutory provisions, but their proper interpretation is a matter for the court.

These precedents collectively establish that courts defer to the expertise and discretion of planning decision-makers unless there's a manifest error or irrationality in their decisions.

Legal Reasoning

The court undertook a meticulous examination of whether the Scottish Ministers and the reporter had correctly interpreted and applied NPF4 Policy 3(b)(iii). The policy mandates a sequential mitigation hierarchy: Avoid, Minimize, Restore, Offset. The petitioners contended that the reporter failed to prioritize avoidance and minimization, thereby rendering the decision unlawful. However, the court found that:

The mitigation hierarchy in NPF4 requires decision-makers to prefer avoidance and minimization but does not mandate absolute avoidance of all negative impacts.
Regulation 5(2)(c) of the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2017 complements the policy by requiring developers to outline their mitigation strategies, though it doesn't impose a strict hierarchy.
The reporter had considered avoidance and minimization measures as part of the EIA report and found the residual impacts negligible to minor, aligning with NPF4's objectives.

The court emphasized the principle that planning decisions involve balancing multiple considerations and that the weight attached to each is within the decision-maker's discretion, provided it isn't irrational. Consequently, the court concluded that the Scottish Ministers acted within their legal bounds, applying the mitigation hierarchy appropriately without deviating into irrationality or legal error.

Impact

This judgment reinforces the deference courts accord to planning authorities and their experts in applying complex policies like NPF4. It underscores that as long as decision-makers adhere to the procedural and substantive requirements of planning policies, their discretion in weighing material considerations will not be second-guessed unless manifestly unreasonable.

For future cases, this sets a precedent that challenges to planning decisions on the grounds of policy misapplication must convincingly demonstrate a legal error or irrationality, rather than merely disagreeing with the discretionary judgments of authorities.

Complex Concepts Simplified

Mitigation Hierarchy

The mitigation hierarchy is a structured approach to managing environmental impacts of development projects. It prioritizes actions in the following order:

Avoid: Preventing any negative impact from occurring.
Minimize: Reducing the severity of the impact.
Restore: Repairing any damage caused by the impact.
Offset: Compensating for residual impacts that cannot be avoided or minimized.

In this case, the court evaluated whether the decision-makers adhered to this hierarchy in assessing the wind farm's impact on the wildcat population.

Judicial Review

Judicial review is a legal process where courts examine the lawfulness of decisions or actions made by public bodies. It does not assess the merits of the decision but ensures that it was made following proper procedures, within legal bounds, and without exceeding authority.

Conclusion

The judgment in Wildcat Haven CIC v Scottish Ministers [2024] CSOH 10 serves as a reaffirmation of the judiciary's stance on procedural deference in planning matters. It delineates the boundaries within which courts will evaluate the application of environmental policies, particularly the mitigation hierarchy in NPF4. By upholding the decision to grant consent for the Clashindarroch (II) Wind Farm, the court has clarified that as long as decision-makers comprehensively consider environmental mitigation measures in a structured hierarchy, their discretionary judgments withstand judicial scrutiny. This maintains the delicate balance between environmental conservation and developmental progress, ensuring that planning authorities retain the necessary flexibility to make informed decisions based on expert assessments.

Key Takeaways

**Deference to Decision-Makers:** Courts will uphold planning decisions unless there is clear evidence of legal error or irrationality.
**Application of Mitigation Hierarchy:** Proper application involves prioritizing avoidance and minimization, but does not require absolute avoidance of all negative impacts.
**Comprehensive EIA Reports:** Detailed and regulation-compliant Environmental Impact Assessments are pivotal in informing decision-makers and withstanding judicial scrutiny.
**Judicial Scrutiny Focus:** The court's role is to ensure legality and rationality, not to substitute its judgment for that of planning authorities.