Reason-Giving When Ministers Depart from Inquiry Reporters’ Recommendations in Section 37 Electricity Act Decisions

1. Introduction

Petition of Galloway Without Pylons for Judicial Review [2026] CSOH 24 concerned a challenge to the Scottish Ministers’ decision to grant consent under section 37 of the Electricity Act 1989 (and associated deemed planning permission) for approximately 47km of overhead 132kV transmission lines proposed by SP Transmission plc (“SPT”) through the Glenkens Valley and Galloway Hills area.

Following substantial objection, a public inquiry was held before two reporters. The reporters’ report (7 February 2024) recommended refusal. The Scottish Ministers (14 February 2025) nonetheless decided to grant the consents.

The petitioner, Galloway Without Pylons, accepted that Ministers were entitled to disagree with the reporters, but contended that:

  • the decision letter gave inadequate reasons for departing from the reporters’ recommendation; and
  • the decision failed to engage with evidence/representations advanced by the petitioner at inquiry.

The First Respondent was the Scottish Ministers. SPT participated as an interested party, lodging answers and submissions.

2. Summary of the Judgment

Lord Lake refused the petition. He held that:

  • Although a mere statement that Ministers “weighed matters differently” may be insufficient where a decision departs from reporters, the Ministers’ decision letter, read as a whole, adequately explained why they attached greater weight to need/benefits (including urgency, security of supply and grid reinforcement policy) and why they did not reduce that weight on the basis of alternatives.
  • The “failure to engage with evidence” ground failed because the petitioner did not identify any specific evidence or representation that was obviously material yet overlooked; and in any event the divergence from the reporters lay primarily in planning judgment/weight, not disputed fact-finding.

The court sustained the Scottish Ministers’ plea-in-law and SPT’s fourth plea-in-law, and refused all remedies.

3. Analysis

3.1 Precedents Cited

Tesco Stores v Secretary of State for Environment [1995] 1 WLR 759

Lord Lake relied on Lord Hoffmann’s formulation of orthodox restraint in planning matters: the assignment of weight to competing considerations is “entirely for the decision-maker”; judicial intervention is limited to recognised public law errors (irrelevant/relevant considerations, or Wednesbury unreasonableness). This framed the court’s approach: the petition could succeed only if the reasoning was legally inadequate, not because the Ministers’ planning balance was arguable.

South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953 (quoted in Horada, paragraph 34, and CPRE Kent, paragraph 35)

This provided the core “reasons” standard adopted by the court: reasons must enable an informed reader to understand why the decision was reached and what conclusions were reached on the principal important controversial issues, but need not address every material consideration. Lord Lake treated this as the governing yardstick for assessing the Ministers’ letter.

Uprichard v Scottish Ministers 2013 SC (UKSC) 219

Cited for the contextual nature of adequacy: what is required by way of reasons depends on the circumstances. Lord Lake used this to justify assessing the decision letter in light of (i) the inquiry, (ii) the competing policy objectives, and (iii) the fact that the decision departed from the inquiry recommendation.

Allen v Secretary of State for Communities and Local Government [2016] EWCA Civ 767

Allen was used for two propositions: (i) where a decision-maker disagrees with a recommendation, reasons should state why the recommendation is not followed; and (ii) it is not necessary to give “reasons for reasons”. Lord Lake accepted Allen’s insistence that the basis for disagreement must be explained, while also guarding against an impermissible demand for ever more granular justification.

Horada v Secretary of State for Communities and Local Government [2016] PTSR 1271

Horada was central to structuring the duty:

  • If a decision follows a report, the report can generally supply the reasons (minimal additional reasoning required).
  • If a decision departs from a report, the decision letter is the principal place where the reasons must appear.

Lord Lake adopted this analysis, but then tested whether the Ministers’ letter did more than merely assert a different outcome.

R (Ling (Bridlington) Ltd) v East Riding of Yorkshire Council [2006] EWHC 1604 (Admin)

Ling was cited as authority suggesting that more may be required when departing from an officer/report recommendation. Lord Lake noted divergent approaches in the case law (Allen versus Ling) but preferred an approach aligned with CPRE Kent (below) which, in practical effect, supports more detailed reasoning in certain “high stakes” departures.

R (CPRE Kent) v Dover DC [2018] 1 WLR 108

Lord Lake expressly agreed with Lord Carnwath: decisions granting permission “in the face of substantial public opposition or against the advice of officers” for major policy departures call for more detailed reasons, not only due to immediate impact but because of their “lasting relevance” to policy application in future cases. This was the judgment’s most overtly “precedential” move: it endorsed a heightened expectation of explanatory clarity where a decision-maker rejects an inquiry’s recommendation on a controversial, policy-sensitive development.

Gladman Developments Ltd v Secretary of State for Housing, Communities and Local Government [2019] EWHC 127 (Admin)

Cited as part of the reasons jurisprudence reinforcing that adequacy is assessed holistically and with judicial caution against over-legalising planning reasoning. Its influence is visible in Lord Lake’s insistence on reading the decision letter “as a whole” and avoiding forensic nitpicking.

West Lothian Council v Scottish Ministers 2023 SLT 175

Cited within the same cluster of reasons authorities, reflecting the Scottish courts’ alignment with wider UK planning public law on intelligibility and restraint. While not analysed at length, it supported the court’s approach to adequate explanation in ministerial decision letters.

Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345

Wordie was invoked for the proposition that a decision may be unlawful if it fails to take account of relevant and material considerations. Lord Lake accepted the principle but found it unhelpful on the facts because the petitioner did not specify what was allegedly left out.

R (Samuel Smith Old Brewery (Tadcaster) v North Yorkshire County Council 2020 PTSR 221

Used to articulate a threshold: only matters “so obviously material” require express engagement in the decision. Lord Lake applied this to reject the petitioner’s second ground because no such clearly material overlooked point was identified.

3.2 Legal Reasoning

(a) The governing legal test: adequacy of reasons in context

The court distilled the applicable principles (largely uncontroversial between parties):

  • Weight and planning judgment are for Ministers (Tesco Stores), with limited judicial review grounds.
  • Reasons must explain why the decision was reached and the conclusions on the principal controversial issues (South Bucks), but may be brief and need not address everything.
  • The duty is contextual (Uprichard).
  • If the decision follows the report, the report often supplies the reasoning; if it departs, the decision letter must itself contain sufficient explanation (Horada).
  • There is no duty to provide “reasons for reasons” (Allen; Horada).

(b) The “departure case” problem: is “we weighed it differently” enough?

Lord Lake’s key move was to identify the danger in a bare statement that Ministers attached “greater weight” to need/benefits: while that may describe the decision, it does not explain it in a way that allows:

  • meaningful scrutiny for legal error; or
  • public/policy guidance for future decision-making (the CPRE Kent rationale).

He held that probing whether there is an explanation for the altered weighting is not an impermissible demand for “reasons for reasons”; rather, it is identifying what the decision actually was (a choice not to reduce weight for need/benefits) and asking whether the letter explains that choice.

(c) Application to the Ministers’ letter: alternatives, urgency, and the climate/nature balance

The petitioner focused on paragraphs 128–133 of the decision letter, where Ministers acknowledged the reporters’ approach but disagreed on (i) the adequacy of alternatives analysis, and (ii) the overall balance.

Lord Lake accepted that the decisive divergence was this:

  • The reporters effectively reduced the weight of “need/benefits” because they considered SPT had not sufficiently explored less environmentally harmful alternatives (paragraph 130).
  • Ministers rejected that reduction, stating that “a robust consideration of reasonable alternatives was carried out” (paragraph 130), and therefore “greater weight must be applied” to need/benefits (paragraph 131), particularly in light of NPF4 and the “urgent upgrade” of strategic infrastructure.

Critically, Lord Lake then validated the letter by reading it as a whole, identifying earlier passages that supplied the missing explanatory “link”:

  • Paragraphs 63–64: Ministers recorded EIA compliance and the existence of “a wide range of alternatives” considered, plus mitigation measures.
  • Paragraph 112: the design sought to avoid ancient woodland loss where possible.
  • Paragraphs around 112–113 (NPF4 policy 1 context): Ministers explicitly balanced the climate emergency and nature crisis, concluding that policy did not require equal response to both, that some biodiversity/emissions impacts would be offset over time, and that the long-term benefits of expanded grid capacity for renewable energy merited “more significant weight”.

On that basis, the decision letter did not create “substantial doubt” as to legal error: it conveyed why Ministers rejected the reporters’ “alternatives” criticism and why that mattered to the weighting exercise.

(d) The “failure to engage with evidence” ground

Lord Lake treated this as a Wordie/Samuel Smith type complaint. The ground failed for two connected reasons:

  • The petitioner did not identify any specific piece of evidence or submission that was “so obviously material” as to require express treatment.
  • The divergence between reporters and Ministers was predominantly about weight, not a disagreement about underlying facts; since the reporters’ refusal was the petitioner’s preferred outcome, it was unclear what petitioner evidence could be said to have been overlooked in a way material to the Ministers’ differing conclusion.

3.3 Impact

(a) Practical drafting discipline for ministerial “departure” decisions

The judgment reinforces that where Ministers depart from a reporters’ recommendation after a public inquiry—particularly on a major, contentious, policy-laden project—decision letters should do more than announce a different balance. They should articulate the hinge on which the difference turns (here: the appropriateness of reducing “need/benefits” due to alternatives), and indicate the basis for the alternative view.

(b) “Read as a whole” remains a powerful saving principle

Even in a departure case where more detailed reasons are expected (CPRE Kent), the court will not confine itself to a narrow concluding section. Earlier analytical passages can cure apparent thinness in the “final balancing” paragraphs, so long as the overall letter yields an intelligible route to the result and does not create “substantial doubt” about legal error.

(c) A pleading lesson for challengers: identify what was overlooked

The decision underscores a practical and forensic point in judicial review of planning/consent decisions: a “failure to consider my evidence” ground needs specificity. Without identifying the allegedly ignored, obviously material matter, the court cannot assess materiality or unlawfulness.

(d) Substantive policy balance: climate infrastructure and environmental loss

Although the court did not adjudicate the merits, the Ministers’ approach (as upheld) illustrates how decision-makers may lawfully frame NPF4 policy 1: the policy “does not require proposals to respond equally” to climate and nature crises, allowing an express conclusion that long-term climate benefits of grid reinforcement can outweigh significant, acknowledged, and not fully mitigable nature impacts—provided the reasoning is made intelligible.

4. Complex Concepts Simplified

  • Section 37 consent (Electricity Act 1989): a statutory approval required for certain overhead electricity lines. It often operates alongside planning effects, including “deemed planning permission” attached to the consent.
  • Deemed planning permission: planning permission treated as granted automatically as part of another statutory consent.
  • EIA regulations / Environmental Impact Assessment: procedural requirements to assess significant environmental effects and to describe main alternatives and mitigation.
  • Wednesbury unreasonableness: a high threshold; the court intervenes only if a decision is so unreasonable that no reasonable decision-maker could have made it.
  • “Weight” in planning: how much importance the decision-maker attaches to competing factors (need, policy support, environmental harm, etc.); generally a matter for the decision-maker, not the court.
  • “Reasons for reasons”: an impermissible demand that the decision-maker justify every step behind their explanation; the law requires an intelligible explanation, not an infinite regress of justification.
  • Read the decision “as a whole”: courts interpret a decision letter in its entirety; reasoning in earlier sections can explain later conclusions.

5. Conclusion

[2026] CSOH 24 affirms that Scottish Ministers may depart from inquiry reporters’ recommendations, but in doing so—especially on major, controversial infrastructure proposals—they must provide reasons that do more than assert a different balance. Endorsing the approach in R (CPRE Kent) v Dover DC, Lord Lake recognised the heightened public-law importance of intelligible explanation in such “departure” decisions. Nonetheless, the court will assess adequacy pragmatically and holistically: where the decision letter, read as a whole, discloses the decisive issue (here, alternatives and the consequent weighting of “need”) and provides an intelligible explanation, the challenge will fail.