Wildcat Haven Community Interest Company against the Scottish Ministers and another (Court of Session)

Factual and Procedural Background

The petitioners, Wildcat Haven Community Interest Company, sought judicial review of a decision by the Scottish Ministers to grant consent to Company B to construct a wind farm at Clashindarroch Forest, Aberdeenshire. The petitioners argued that the development would disturb a wildcat population and that the decision failed to properly apply the mitigation hierarchy required by policy 3(b)(iii) of National Planning Framework 4 (NPF4), rendering the decision unreasonable and legally flawed. The Lord Ordinary dismissed the petition, and this decision was appealed to the court.

Company B applied for consent under section 36 of the Electricity Act 1989 for a second wind farm development at the site. A reporter was appointed and held a public inquiry. The forest area was part of a wildcat priority zone, and the petitioners claimed the development posed a significant risk to the wildcat population. Initially, the reporter recommended refusal based primarily on adverse landscape effects, not on wildcat impact, which was considered negligible due to proposed mitigation.

Following the adoption of NPF4 and updated energy policies, the inquiry was reopened. A supplementary report recommended granting the application subject to conditions, and the Scottish Ministers granted consent in June 2023. The petitioners challenged the reporter's and Ministers' approach to the mitigation hierarchy in NPF4, contending it required a sequential approach prioritizing avoidance and minimization over offsetting. The Lord Ordinary disagreed, finding no error of law in the decision-making process.

Legal Issues Presented

1. Whether the decision maker failed to properly apply the mitigation hierarchy under policy 3(b)(iii) of NPF4 by not giving sequential preference to avoidance and minimization of environmental impacts over offsetting measures.
2. Whether the reporter and Scottish Ministers made an error of law in interpreting and applying policy 3(b)(iii) of NPF4 in granting consent for the development.
3. Whether the petitioners established grounds for judicial intervention based on the alleged misapplication of planning policy and mitigation hierarchy.

Arguments of the Parties

Petitioners' Arguments

• The Lord Ordinary erred by holding that policy 3(b)(iii) of NPF4 does not require a sequential approach to mitigation, which must prioritize avoidance and minimization over offsetting.
• The use of the term "hierarchy" and the definition in Annex F of NPF4 indicate a mandatory sequential approach, which the decision makers failed to apply.
• The decision maker must assess whether the applicant complied with the mitigation hierarchy; failure to do so undermines the validity of the consent.
• NPF4 represents a significant policy shift emphasizing the equal importance of the climate and nature crises, requiring stricter application of biodiversity protections and mitigation hierarchy.
• The reporter improperly relied on pre-NPF4 reasoning and failed to recognize the new stringent approach required by policy 3(b)(iii), thereby weakening the intended protection for species such as wildcat.

Scottish Ministers' Arguments

• The Lord Ordinary's decision contained no error of law; policy 3(b)(iii) requires developers to identify potential negative effects and demonstrate mitigation, but it is for the decision maker to determine acceptability.
• The plain language of the policy and its context do not support the petitioners' interpretation of a binding, sequential mitigation hierarchy.
• The Environmental Impact Assessment (EIA) was properly conducted under the 2017 Regulations and provided an adequate basis for decision making.
• NPF4 is a material consideration and part of the development plan, but the weight accorded to it is a matter of planning judgment, not legal error.
• The mitigation hierarchy is flexible and does not require a rigid sequential approach; some adverse effects cannot be avoided, and offsetting can be appropriate.
• Any alleged failure to apply policy 3(b)(iii) would not have affected the outcome, as the wildcat population would remain adequately protected.

Company B's Arguments

• The Lord Ordinary correctly distinguished between the roles of the developer and the decision maker under policy 3(b); the developer must demonstrate compliance, but the decision maker evaluates the acceptability of mitigation.
• The mitigation hierarchy is well established in existing regulations and guidance, including the 2017 Regulations and Planning Advice Note 1/2013, and NPF4 does not alter this framework significantly.
• The Lord Ordinary properly recognized that NPF4 did not intend to impose a new, absolute hierarchical approach to mitigation.
• The reporter and Ministers properly exercised planning judgment in concluding that proposed mitigation measures would reduce effects on wildcat to negligible levels.
• Even if the petitioners' interpretation were correct, no substantial prejudice or different outcome would result from re-determination.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court analysed the wording and context of policy 3(b)(iii) of NPF4 and its Annex F definition of the mitigation hierarchy. It found no explicit indication that the policy imposes a mandatory, rigid sequential approach requiring avoidance to be given overriding preference over minimization, restoration, or offsetting. The mitigation hierarchy as defined is consistent with prior regulations and guidance, which allow flexibility recognizing that some adverse effects cannot be avoided.

The court emphasised that the policy requires a rational decision based on relevant criteria, with the weight to be attached to each element of the hierarchy being a matter for the decision maker's planning judgment. The reporter and Scottish Ministers had properly considered the environmental impacts, including the wildcat population, and found that mitigation measures would reduce adverse effects to negligible levels.

The petitioners' argument that NPF4 introduced a significant change to the mitigation hierarchy was not supported by the policy language, preparatory materials, or consultation documents. The court noted that the EIA complied with the applicable 2017 Regulations and provided a proper basis for decision making.

Given the absence of any legal error in interpreting or applying policy 3(b)(iii), and the lack of realistic prospect that a different decision would have been reached, the court found no grounds for intervention.

Holding and Implications

The court REFUSED the reclaiming motion (appeal), upholding the decision of the Lord Ordinary dismissing the petition for judicial review.

The direct effect is that the Scottish Ministers' consent for the wind farm development at Clashindarroch Forest remains valid. The decision confirms that policy 3(b)(iii) of NPF4 does not impose a mandatory sequential approach to mitigation that legally binds decision makers to prefer avoidance over other mitigation measures in all circumstances. No new legal precedent altering the established approach to mitigation hierarchy or environmental impact assessments was established. Planning judgments concerning the weight and application of mitigation measures remain within the purview of decision makers rather than the courts.