APPEAL BY NORTH LANARKSHIRE BIOPOWER LTD AGAINST THE SCOTTISH MINISTERS

Factual and Procedural Background

This appeal arises under section 239 of the Town and Country Planning (Scotland) Act 1997 concerning a refusal of planning permission for an energy-from-waste installation at a site in North Lanarkshire. The appellants operated a waste management facility on the site since 2014 under a prior consent. They applied for alterations involving a new facility with increased processing capacity and a taller ventilation stack closer to existing and planned residential areas. The local council refused the application on grounds of air pollution and visual intrusion, contrary to their officials' recommendations. The appellants appealed to the respondents, who decided to determine the appeal themselves rather than delegate it to a reporter. The appointed reporter recommended allowing the appeal, but the respondents ultimately refused it, citing adverse visual impact outweighing development plan support. The appellants challenge the respondents’ decision, arguing unlawfulness in the reasons initially considered by the Minister and procedural irregularities in the decision-making process.

Legal Issues Presented

1. Whether the respondents’ decision to refuse the appeal was lawful, given the Minister’s initial reasons for refusal and the final decision letter.
2. Whether the Minister unlawfully failed to take into account material facts or considerations when refusing the appeal.
3. Whether the Minister unlawfully delegated decision-making powers to officials.
4. The proper weight to be accorded to visual impact considerations relative to development plan support in the context of planning permission refusal.

Arguments of the Parties

Appellants' Arguments

• The Minister’s original decision on 18 May was based on four reasons, three of which were unlawful, but the final decision letter only reflected one reason, leading to inconsistency and unlawfulness.
• The application’s classification as a new application or variation was irrelevant and did not raise different planning issues; the Minister’s differing view without opportunity for the appellants to respond was unfair.
• The Scottish Planning Policy guideline buffer of 250m is not a strict rule; the Minister erred in treating a 100m distance as unacceptable and contrary to policy.
• The characterization that the facility was “not an energy-from-waste plant” was incorrect; use of residual heat is not essential for such a facility.
• If the operative decision was the November decision letter, it was taken ignoring material facts and considerations, as the Minister failed to reconsider or was unlawfully influenced by officials.
• Delegation principles do not apply where the Minister personally makes a decision; ignorance of material facts by the Minister cannot be cured by officials’ knowledge or by the decision letter’s drafting.

Respondents' Arguments

• The appeal challenges only the Minister’s earlier email of 18 May, which was not a decision; the valid decision is contained solely in the November decision letter, which is not challenged.
• The earlier reasons were administrative and preparatory; the Minister did not fail to reconsider nor unlawfully delegate decision-making.
• The Minister was properly supported by officials’ expertise and information, and the amount of information required for planning judgment is a matter for planning discretion.
• The respondents were entitled to reject the reporter’s recommendation and differed on the weight to be given to visual impact versus development plan support.
• The application was correctly treated as a new planning permission, but this was not the basis for refusal; the refusal rested on adverse visual impacts outweighing other considerations.
• The decision letter fully and adequately explained the reasons for refusal, and the Minister endorsed those reasons; there is no basis to impugn the decision by reference to earlier ministerial thinking.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully examined the procedural history and the content of the decision-making process. It noted that the initial ministerial email of 18 May 2020, expressing being "not minded to accept the recommendation" for four reasons, was not a final decision but part of the internal deliberation process. The final decision was contained in the November 3, 2020, decision letter, which provided a detailed and coherent justification for refusal focused solely on the significant adverse visual impact outweighing the development plan support and other benefits.

The court emphasized that the minister’s earlier reasons, some of which the appellants alleged to be unlawful, did not form part of the operative decision and that the minister’s officials had prepared a new recommendation and decision letter after reconsidering the issues afresh. The minister’s endorsement of that letter constituted the final decision.

Regarding the appellants’ claim of unlawful failure to consider material facts or unlawful delegation, the court found no evidence that the minister was unaware of relevant material considerations at the time of the final decision or that the minister unlawfully delegated his decision-making powers. The court referenced established principles that while officials may act under delegated powers, when a minister personally makes a decision, the minister’s knowledge and awareness cannot be imputed from officials’ knowledge alone.

The court also analyzed the planning merits, recognizing the conflict between the development plan’s general support for waste management facilities on the site and the adverse visual impact on existing and planned residential areas. The respondents’ decision to give greater weight to visual amenity concerns was within their planning judgment and was adequately reasoned.

Ultimately, the court concluded that the decision letter represented the whole basis for the decision and that the appellants’ challenge based on the minister’s earlier thinking was irrelevant to the lawful decision taken.

Holding and Implications

The appeal is refused.

The court held that the respondents’ decision to refuse planning permission was lawful and properly reasoned. The minister’s earlier internal considerations, including reasons alleged to be unlawful, did not form part of the operative decision and could not be used to challenge the final decision. No procedural impropriety or unlawful delegation was established. The decision letter provided adequate and lawful reasons focusing on adverse visual impacts outweighing other planning considerations. This ruling affirms the principle that only the final decision and its stated reasons are relevant for judicial review of planning appeals, and internal ministerial deliberations or earlier drafts do not constitute actionable grounds if not reflected in the final decision. No new precedent was set beyond the application of established administrative law and planning principles.