Introduction

In the case of EnergiKontor UK Ltd v Advocate General for Scotland ([2020] ScotCS CSOH_37), the Scottish Court of Session addressed significant issues concerning the Ministry of Defence's (MOD) policy on noise budget allocation for wind farm developments near the Eskdalemuir Seismic Array ("the Array"). EnergiKontor UK Limited, a developer of commercial wind farms, sought judicial review of the MOD's policy, arguing that it unfairly prioritizes larger wind farm projects over smaller ones by allocating noise budgets at different stages of the planning process. This commentary delves into the background, judicial reasoning, and broader implications of this landmark decision.

Summary of the Judgment

EnergiKontor UK Limited challenged the MOD's policy, which governs the allocation of a noise budget designed to protect the Array from seismic vibrations caused by wind turbines. The MOD employs a "first come, first served" approach, allocating noise budget based on the submission stage: larger wind farms (>50MW) have their noise budgets allocated during the scoping stage, while smaller ones (≤50MW) are allocated upon planning application submission. EnergiKontor contended that this differentiation renders the policy unreasonable, ultra vires, and unlawful by disadvantaging smaller developments.

The Court of Session, presided over by Lord Tyre, primarily focused on whether to extend the three-month time limit for initiating judicial review proceedings. Recognizing that the petitioners were aware of the policy's problematic nature only in early 2018 and had made reasonable efforts to resolve the issue through alternative channels (such as the Eskdalemuir Working Group), the court found it equitable to extend the time limit. Consequently, permission was granted for the petition to proceed.

Analysis

Precedents Cited

Lord Tyre referenced several key cases to underpin his judgment:

• R (Burkett) v Hammersmith and Fulham LBC [2001] Env LR 684 (CA): This case established that judicial review is a remedy of last resort and emphasized the court's discretion in extending time limits when equitable factors are present.
• R (Gavin) v Haringey LBC [2004] 1 PLR 61: It was cited to highlight that claimants cannot be penalized for not acting until they are aware of a ground for action.
• R v Secretary of State for the Home Department, ex p Ruddock [1987] 1 WLR 1482: Referenced to stress the importance of addressing substantial legal issues rather than leaving them unresolved.

These precedents collectively guided the court in assessing the equitable grounds for extending the time limit for judicial review, ensuring that procedural fairness was maintained without undermining legal certainty.

Legal Reasoning

The court's reasoning concentrated on the equitable extension of the statutory three-month time limit for commencing judicial review under section 27A(1)(b) of the Court of Session Act 1988. Lord Tyre identified three distinct periods to evaluate the petitioner's entitlement to an extension:

• Period 1 (2005 - 2018): From the formulation of the MOD's policy to when EnergiKontor became aware of the policy. The court deemed EnergiKontor excusably ignorant of the policy during this time.
• Period 2 (Spring 2018 - April 2019): From awareness of the policy to the point when alternatives were explored without resolution. The court found EnergiKontor's attempts to resolve the issue through the Eskdalemuir Working Group to be reasonable and appropriate.
• Period 3 (April 2019 - December 2019): From the last interaction with the MOD to the lodging of the petition. Despite ongoing discussions, no substantive progress was made, warranting the extension.

Lord Tyre concluded that considering the entire timeline and the efforts made by EnergiKontor to address the issue outside of litigation, it was equitable to permit the petition to proceed.

Impact

This judgment has profound implications for environmental planning and administrative law in Scotland:

• Procedural Flexibility: It underscores the court's willingness to adapt procedural rules to ensure justice is served, especially in complex cases involving significant public interest.
• Renewable Energy Development: By scrutinizing the MOD's noise budget allocation policy, the case highlights the balance between national security (protection of the Array) and the advancement of renewable energy projects.
• Public Administration: The decision emphasizes principles of good administration, such as transparency and fairness, and the need to rectify policies that may inadvertently stifle desirable developments.

Complex Concepts Simplified

Noise Budget Allocation

The noise budget allocation refers to the method by which the MOD limits the cumulative seismic vibrations produced by wind farms near the Array. By setting a threshold (0.335 nanometres of ground displacement), the MOD ensures that the Array's ability to detect nuclear tests remains uncompromised.

Judicial Review Time Limits

Judicial review time limits are statutory deadlines within which legal challenges must be initiated. In Scotland, under section 27A of the Court of Session Act 1988, there is a three-month window from the date of the decision or policy for filing such a review. Extensions are permitted at the court's discretion when equitable grounds exist.

First Come, First Served Policy

This policy implies that applications are considered in the order they are received. In the context of the MOD's noise budget allocation, it means that larger wind farm projects are given priority at the scoping stage, potentially limiting opportunities for smaller projects.

Conclusion

The judgment in EnergiKontor UK Ltd v Advocate General for Scotland serves as a pivotal reference point in Scottish administrative law, particularly concerning environmental planning and the adjudication of statutory policies. By granting an equitable extension to the judicial review time limit, the court recognized the necessity to balance stringent procedural rules with the principles of fairness and the importance of addressing significant public and environmental concerns. This decision not only facilitates the resolution of contentious planning disputes but also reinforces the judiciary's role in ensuring that public policies operate within the bounds of reasonableness and legality.