Moray Council v. The Scottish Ministers & Anor

Factual and Procedural Background

The appellant, a local planning authority referred to as the Appellant, challenged a decision by the Scottish Ministers, made through their Reporter, to grant planning permission for a wind farm development and associated excavation of borrow pits at a rural estate in a specified region. The decision was dated 11 April 2005. The Appellant refused the original applications on grounds that the proposal conflicted with various development plan policies, primarily concerning adverse landscape and visual impacts, cumulative effects alongside other approved wind farms, and insufficient material considerations to justify departure from the development plan.

The procedural history involves an appeal under section 239 of the Town and Country Planning (Scotland) Act 1997. The Reporter conducted a public local inquiry, site inspections, and considered extensive evidence and consultation responses. The Reporter issued a decision letter indicating an intention to allow the appeals subject to conditions and registration of an agreement under section 75 of the 1997 Act. The Appellant then appealed to the Court of Session, seeking to quash the decisions on grounds of ultra vires action, perversity, and unreasonableness, alleging failure to take into account material considerations.

Legal Issues Presented

1. Whether the Reporter erred in law by failing to properly consider and analyze material considerations, specifically landscape and visual impacts of the proposed wind farm development.
2. Whether the Reporter misdirected himself in assessing the cumulative impact of the proposed development in conjunction with other existing or proposed wind farms.
3. Whether the Reporter erred in his evaluation of the effect of the proposal on residential amenity, including failure to quantify loss of amenity and improper balancing against national policy.
4. Whether the decision was perverse or unreasonable, justifying quashing of the planning permission granted by the Scottish Ministers.

Arguments of the Parties

Appellant's Arguments

• The Reporter failed to adequately assess the natural environment and the landscape impact, conflating it improperly with visual intrusion and neglecting expert evidence.
• There was no proper analysis of the cumulative impact of the proposal alongside other wind farms; the Reporter did not examine the additional turbines' effects individually or collectively.
• The Reporter erred in concluding compliance with policy L/IMP2 on residential amenity without a qualitative analysis of loss of amenity despite evidence indicating significant impact.
• The decision letter lacked clarity on how adverse impacts were balanced against policy support for renewable energy, effectively disregarding residential amenity as a material consideration contrary to national guidance.
• The overall decision was ultra vires, perverse, and unreasonable due to these failures in legal and factual analysis.

First Respondents' Arguments

• The Court should not re-examine the Reporter's planning judgments unless there is demonstrable failure to consider material facts or perversity.
• The Reporter made an objective and professional judgment based on extensive evidence, including site inspections and expert advice, properly applying relevant policies and national guidance.
• The decision letter adequately disclosed the reasoning process, addressing the key issues and substantial matters without needing to comment on every piece of evidence.
• The landscape impact was properly understood as visual intrusion; the Reporter acknowledged its significance but found it acceptable under policy L/ED10, a matter of planning judgment.
• The cumulative impact was carefully considered and found not to be unacceptable.
• The assessment of residential amenity was appropriate given the policy context and the distance of objectors, and the Reporter correctly applied national guidance on renewable energy developments.

Second Respondent's Arguments

• The appeal improperly invites the Court to intrude on the Reporter's exclusive planning jurisdiction.
• Both landscape and visual impacts relate to visual intrusiveness, a matter of planning judgment supported by precedent.
• The Reporter did not misunderstand the issues nor fail to analyze them sufficiently; complaints of insufficient analysis do not amount to demonstrable error.
• The criticisms by the Appellant reflect misunderstandings of policy and the nature of the planning judgment exercised by the Reporter.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by identifying the statutory framework requiring the Reporter to determine the appeal in accordance with the development plan unless material considerations indicated otherwise, per section 25 of the 1997 Act. The Reporter’s role involved assessing the proposal’s consistency with the development plan and weighing other material considerations such as national planning guidance, expert advice, and representations.

On the first issue, the court rejected the Appellant's artificial distinction between landscape impact and visual intrusion, affirming that the landscape impact in this case was essentially visual intrusion by the turbines. The Reporter acknowledged the significant visual intrusion but concluded it was not unacceptable under the relevant policy criteria. The court held this to be a legitimate planning judgment supported by evidence and site inspections.

Regarding the cumulative impact, the court found that the Reporter had considered the evidence and made a subjective but informed judgment that the cumulative effects were not unacceptable. The possibility that future wind farms might increase cumulative impact did not justify refusal when no certainty existed about their implementation.

Concerning residential amenity, the court noted that policy L/IMP2 was a general implementation policy for rural development rather than a residential policy. The Reporter’s balancing of the indeterminate loss of residential amenity against the policy imperative for renewable energy was a matter of judgment, not perverse or unlawful. The court recognized the difficulty of quantifying amenity loss and accepted the Reporter’s reasoning that objections from residents living mostly over three kilometres away did not outweigh policy support.

The court emphasized that the Reporter’s decision letter was a well-constructed, lucid document that sufficiently disclosed the reasoning process and findings on the determining issues. The Reporter was not required to address every piece of evidence or argument in detail but had adequately considered the material before him.

Overall, the court found no demonstrable failure, perversity, or irrationality in the Reporter’s decision-making process and affirmed the exercise of planning judgment within the Reporter’s expertise.

Holding and Implications

The court's final decision was to REFUSE THE APPEAL.

This ruling upheld the planning permission granted by the Scottish Ministers for the wind farm development, confirming that the Reporter’s decision was lawful, reasonable, and properly reasoned. The decision reinforces the principle that planning judgments, particularly those involving assessments of visual and cumulative impacts and residential amenity, are primarily within the expertise and discretion of planning authorities and their appointed decision-makers. No new legal precedent was established; rather, the court applied established standards for judicial review of planning decisions, emphasizing deference to the decision-maker’s expertise absent clear error.