Judicial Review of Energy Consent Decisions: CSOH 3 Affirms Ministerial Discretion on Late Representations

Introduction

The case of James Walker and others v. Scottish Ministers ([2025] CSOH 3) presents a significant judicial review challenge concerning administrative decision-making in the context of energy infrastructure development. The petitioners, comprising James Walker, Christina Walker, and Drumbuie Renewables Limited, contested the decision of the Scottish Ministers to grant consent for the installation of approximately 9.3 kilometers of 123kV overhead electrical lines in the Dumfries and Galloway area.

The central issues revolved around allegations that the Ministers' decision was unreasonable and illogical, particularly in failing to consider relevant material considerations and in providing inadequate reasoning for their approvals. The case underscores the delicate balance between facilitating renewable energy infrastructure and addressing local environmental and economic concerns.

Summary of the Judgment

The Court of Session, through the opinion of Lord Sandison, dismissed the petitioners' claims, upholding the decision of the Scottish Ministers. The court found that the late representations submitted by the petitioners in March 2024 were neither timely nor sufficiently detailed to warrant judicial intervention. Consequently, the court determined that the Ministers acted within their discretionary powers, provided adequate reasoning, and appropriately considered the material matters as per statutory requirements.

Analysis

Precedents Cited

The judgment extensively referenced several key cases to substantiate its reasoning:

Wordie Property Co Ltd v Secretary of State for Scotland (1984): Established that a decision is ultra vires if it fails to consider relevant material considerations.
Westminster City Council v Great Portland Estates plc (1985): Clarified that material considerations are those serving a planning purpose related to land use.
Moray Council v Scottish Ministers (2006): Highlighted the necessity for decision reasons to be proper, adequate, and intelligible.
Friends of the Earth Ltd v Heathrow Airport Ltd (2020): Elaborated on the Wednesbury irrationality test as a standard for evaluating material considerations.

These precedents collectively reinforced the court's stance on the limits of judicial review, the importance of timely and substantial representations, and the standards required for decision-making reasoning.

Legal Reasoning

The court meticulously examined whether the Scottish Ministers had adhered to statutory obligations under the Electricity Act 1989 and related environmental regulations. Key points included:

Timeliness of Representations: The petitioners submitted their objections nearly a year after the advertised deadline, which the court deemed excessively late without compelling justification.
Materiality of Concerns: The court assessed whether the issues raised—such as the impact on existing wind farms and access roads—were "so obviously material" as to necessitate consideration under the Wednesbury test. It concluded that these concerns did not meet the threshold to override the Ministerial discretion.
Adequacy of Reasons: The decision letter by the Ministers was found to sufficiently explain the rationale behind granting consent, particularly emphasizing the alignment with Scotland’s renewable energy policies and the mitigations proposed for environmental impacts.

Ultimately, the court upheld that the Ministers had a broad discretion in making consent decisions and that their process did not manifest any legal impropriety.

Impact

This judgment reinforces the principle that administrative bodies possess considerable discretion in decision-making processes, especially regarding large-scale infrastructure projects. It sets clear boundaries on the grounds for judicial review, particularly emphasizing the importance of timing and specificity in representations. Future cases involving energy consents and similar administrative decisions can anticipate a stringent scrutiny of the procedural adherence and the substantive materiality of objections.

Moreover, the affirmation of the Wednesbury test in evaluating material considerations provides a robust framework for assessing the rationality of administrative decisions, ensuring that public authorities are afforded the latitude to execute policies aligned with national interests.

Complex Concepts Simplified

Ultra Vires

Ultra vires refers to actions taken by a public authority beyond its legal power or authority. In this case, the petitioners argued that the Ministers' decision was ultra vires because it did not consider relevant material considerations.

Wednesbury Irrationality

The Wednesbury Irrationality test is a legal standard used to determine if a decision-maker has acted irrationally or unreasonably. A decision fails this test if no reasonable authority could have made it. The court applied this test to assess whether the Ministers should have considered the late representations.

Legitimate Expectation

Legitimate expectation arises when a public authority makes a promise or establishes a pattern of conduct that individuals rely upon. The petitioners contended that the Ministers' acknowledgment of their late representations created such an expectation to consider their objections.

Material Considerations

Material considerations are factors that a decision-maker must take into account when making a decision. These can include environmental impacts, economic benefits, and compliance with policies. The court evaluated whether the concerns raised by the petitioners qualified as material considerations.

Conclusion

The Court of Session's decision in CSOH 3 underscores the judiciary's respect for the discretionary powers of administrative bodies in the context of energy infrastructure development. By rejecting the petitioners' late and insufficiently substantiated objections, the court affirmed the principle that procedural adherence and the substantive materiality of representations are crucial in judicial review proceedings. This judgment serves as a precedent for future cases, delineating the boundaries within which public authorities operate and the conditions under which their decisions can be subject to judicial scrutiny.

For stakeholders in renewable energy and urban planning, this case reinforces the necessity of timely and well-founded representations during consultation processes. It also highlights the judiciary's role in ensuring that public decisions are both legally sound and reasonably articulated, thereby maintaining a balance between local interests and national policy objectives.