Introduction

The case of Leslie Sinclair against the Scottish Ministers and another ([2022] CSIH 49) deliberated on the contentious issue of granting planning permission for the construction of community wind farms in the Orkney Islands. Leslie Sinclair, the appellant residing in Kirkwall, contested the Scottish Ministers' decision to approve two wind farm projects at Quanterness and Lyness, each comprising six turbines. The primary objectives of these wind farms were to generate income, contribute to climate emergency mitigation, and support the establishment of an interconnector between Orkney and the Scottish mainland. This commentary explores the court's comprehensive analysis of the interplay between renewable energy initiatives and environmental preservation within the framework of Scottish planning law.

Summary of the Judgment

The Scottish Court of Session reviewed the appellant's challenge against the decisions of the Scottish Ministers to approve the wind farm projects. Despite reporters initially recommending refusal based on conflicts with the Local Development Plan (LDP) and potential adverse environmental impacts, the respondents granted permission contingent upon the eventual approval of the interconnector by the Office of Gas and Electricity Markets (Ofgem). The Court upheld the respondents' decision, emphasizing the significant weight of material considerations related to national energy infrastructure and climate mitigation goals over the local planning constraints.

Analysis

Precedents Cited

The judgment references several pivotal cases that shape the interpretation and application of planning law in Scotland:

• North Lanarkshire Council v Scottish Ministers (2017 SC 88) – Highlighted the necessity for substantive connections between planning permissions and strategic infrastructure projects.
• Hopkins Homes v Communities Secretary [2017] 1 WLR 1865 – Emphasized the distinction between interpreting planning policy and making planning judgments.
• Tesco Stores v Secretary of State for the Environment (1995) – Affirmed that the weight of planning benefits is at the discretion of the decision-maker.
• Wordie Property Co v Secretary of State for Scotland (1984 SLT 345) – Established the standard for providing adequate reasons in planning decisions.
• NLEI v Scottish Ministers [2022] CSIH 39 – Reinforced the principle that courts defer to decision-makers' judgment unless there are clear conventional grounds for interference.

These precedents collectively underscore the deference courts grant to planning authorities in balancing material considerations, provided the decisions are reasoned and within legal bounds.

Legal Reasoning

The Court's legal reasoning hinged on interpreting the Town and Country Planning (Scotland) Act 1997, particularly the requirement to act in accordance with the development plan unless material considerations dictate otherwise. Key elements of the court's reasoning include:

• Material Considerations: The respondents highlighted the national significance of the interconnector project, aligning with the Scottish Government's National Planning Framework 3 (NPF3) policies aimed at enhancing renewable energy infrastructure.
• Balancing Test: The decision involved a balancing act between the adverse environmental impacts identified by the reporters and the substantial benefits associated with meeting renewable energy targets and national infrastructure goals.
• Condition Precedent: Granting permission was conditioned upon the final approval of the interconnector, mitigating potential risks if the infrastructure project failed to proceed.
• Policy Interpretation: The Court found that NPF3 supports both onshore and offshore renewable projects and does not exclusively promote marine energy, thereby justifying the approval of the wind farms within the broader energy strategy.

The Court concluded that the respondents appropriately exercised their planning judgment, giving due weight to national policy objectives and economic benefits, while also imposing safeguards to address environmental concerns.

Impact

This judgment holds significant implications for future planning decisions involving renewable energy projects:

• Enhanced Flexibility: Planning authorities may have greater latitude to approve renewable energy projects that align with national infrastructure goals, even if they face local opposition based on environmental concerns.
• Material Considerations Supremacy: The decision reinforces the primacy of material considerations related to national interest over strict adherence to local development plans.
• Infrastructure-Driven Approvals: Projects contributing to essential infrastructure, like interconnectors, can be prioritized, fostering the growth of renewable energy sectors.
• Conditional Permissions: The use of conditions tied to the approval of related infrastructure provides a balanced approach, ensuring environmental protections are maintained if overarching projects do not proceed.

Consequently, developers and local authorities must navigate the balance between national renewable energy ambitions and local environmental and planning constraints with heightened awareness of this judicial stance.

Complex Concepts Simplified

• Material Considerations: These are factors that the court or planning authority must take into account when making a decision but are not explicitly detailed in the planning policies.
• Development Plan (LDP): A document outlining local authorities' policies and guidelines for land use and development within their jurisdiction.
• National Planning Framework 3 (NPF3): A strategic planning document setting out Scotland's long-term spatial planning policies, including objectives for renewable energy and infrastructure development.
• Interconnector: A high-voltage transmission link that connects two separate electrical grids, facilitating the transfer of electricity between regions.
• Condition Precedent: A legal condition that must be fulfilled before a particular action can take place, in this case, construction of wind farms contingent upon interconnector approval.
• Reasonableness and Rationality in Planning Decisions: Standards ensuring that planning decisions are made logically, transparently, and based on relevant considerations without arbitrary or disproportionate reasoning.

Conclusion

The Leslie Sinclair v Scottish Ministers judgment epitomizes the judiciary's role in adjudicating between local planning policies and national strategic objectives. By upholding the approval of the wind farm projects contingent on interconnector advancements, the Court underscored the importance of aligning local developments with broader energy and environmental goals. This decision not only facilitates the progression of renewable energy infrastructure vital for climate change mitigation but also sets a precedent for prioritizing national material considerations in planning disputes. Stakeholders in future developments must therefore meticulously demonstrate how their projects contribute to national interests while addressing local environmental and planning concerns to secure judicial and administrative approval.