Petition of James Walker and others for Judicial Review (Court of Session)

Factual and Procedural Background

The petitioners, comprising two individuals referred to as the First and Second Petitioners and a company referred to as the Third Petitioner, sought judicial review of the Scottish Ministers' decision dated 23 April 2024. This decision granted consent under section 37 of the Electricity Act 1989 for the installation and retention of approximately 9.3 kilometres of 123kV overhead electricity transmission line in the planning authority area of Dumfries and Galloway.

The First and Second Petitioners are spouses owning Drumbuie Farm near Sanquhar, with longstanding family farming interests, while the Third Petitioner is a company associated with the family, owning land at Kelloholm. The proposed development was intended to be constructed on and over the petitioners' land, subject to a compulsory purchase process initiated by the interested party, a company involved in the application for consent.

A consultation process began in 2019 to establish a preferred route for the overhead line. The First Petitioner raised environmental concerns during pre-application consultation, while the Second and Third Petitioners did not. The formal application was submitted on 16 January 2023, accompanied by an Environmental Impact Assessment (EIA) report. Advertisements invited representations by 31 March 2023, though late representations received after this date were considered at the discretion of the Scottish Ministers.

The petitioners raised concerns about environmental impacts and alternative routing options. They also expressed, through a letter dated March 2024, concerns regarding the effect of the proposed development on their existing, consented, and proposed windfarms and quarry operations. This letter was submitted nearly a year after the advertised deadline and was not brought to the attention of decision-makers until after the decision was made.

The petitioners challenged the decision on grounds that it was unreasonable, illogical, failed to take into account relevant material considerations, and failed to provide proper and intelligible reasons.

Legal Issues Presented

1. Whether the Scottish Ministers were legally obliged to take into account the petitioners' late representations contained in the March 2024 letter when determining the application for consent.
2. Whether the Scottish Ministers failed to consider relevant material considerations, particularly the impact of the proposed development on the petitioners' existing and proposed land uses.
3. Whether the reasons provided by the Scottish Ministers for their decision were proper, adequate, and intelligible.
4. Whether any error in the decision-making process warranted the court exercising its discretion to reduce the decision.

Arguments of the Parties

Petitioners' Arguments

• The March 2024 letter, although late, was accepted by the respondents and they assured the petitioners it would be processed as a representation, giving rise to a legitimate expectation that its contents would be considered.
• The decision was ultra vires for failing to take into account relevant material considerations, specifically the impact on existing and proposed windfarms and quarry operations, including incompatibility issues and the effect on access tracks.
• The decision did not provide proper, adequate, or intelligible reasons, leaving an informed reader in substantial doubt about how key issues were resolved.
• Partial undergrounding of the overhead line was a material consideration that was not addressed.
• Had the respondents properly considered these matters, there was a real possibility the decision might have differed.

Respondents' Arguments

• The application was accompanied by a compliant EIA report, which the respondents took into account along with consultee responses and representations.
• The respondents considered the route, traffic, and access issues, concluding the project was compatible with the local development plan and national policy (NPF4).
• The late March 2024 letter was not seen by the decision-makers before the decision but its issues were addressed in the decision in any event.
• It is for the decision-maker alone to determine which considerations are material and how much weight to give them; no legal error was identified.
• Unconsented planning applications (such as for the proposed Herds Hill windfarm) and expiring planning permissions (such as for the quarry) are not material considerations.
• The letter was vague and lacked essential specification; the decision provided adequate reasons and was intelligible to an informed reader familiar with the EIA report and the consenting process.
• Even if an error had been made, there was no real possibility it affected the outcome, and the court should exercise discretion to refuse reduction of the decision.

Interested Party's Arguments

• The March 2024 letter raised no new material considerations that required the respondents' attention.
• The reasons given for the decision were adequate.
• Any issues raised would not have materially affected the outcome.
• The court should exercise discretion to refuse reduction of the decision.
• The application followed a thorough consultation process, and the letter was submitted long after the consultation period had closed.
• It was reasonable for the respondents to conclude all relevant issues had been brought to their attention before decision.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first addressed whether the respondents were legally bound to consider the petitioners' March 2024 letter. The letter was submitted nearly a year after the advertised deadline for representations, which was a soft deadline but intended to ensure timely decision-making. The court found it would be contrary to efficient public administration to require consideration of such a late representation absent exceptional circumstances. The petitioners did not demonstrate that the letter contained any determinative matter that no reasonable person could ignore.

The petitioners argued that the respondents had given assurances that the letter would be processed, giving rise to personal bar or legitimate expectation. The court rejected these arguments, concluding that the respondents' acknowledgment did not amount to a clear, unambiguous promise to consider the letter's contents substantively. Moreover, the respondents did not make a positive decision to disregard the letter; rather, the administrative system failed to bring it to the decision-makers' attention in time. The court found no unlawfulness in the system itself, and thus no legal obligation arose to consider the letter.

On materiality, the court applied established principles distinguishing mandatory, prohibited, and discretionary considerations. The statute governing the consent required regard only to specified environmental and related factors. The petitioners' concerns about impacts on existing and proposed windfarms and quarry operations were not expressly required to be considered. While such land use matters can be material in planning decisions, they are not necessarily so. The court held that none of the petitioners' concerns were so obviously material that failure to consider them was irrational. In particular, unconsented planning applications and expiring permissions were not material considerations.

The court also found the petitioners' March 2024 letter lacked sufficient specificity to require further inquiry or consideration. Since the respondents were not obliged to consider the letter, the question of its detail was largely academic.

Regarding the adequacy of reasons, the court found the decision letter was proper, adequate, and intelligible. It addressed principal issues, including environmental impacts, policy compliance, and public benefits related to renewable energy transmission. While the decision did not address the petitioners' late concerns about their own land uses, those concerns were not material considerations the respondents were obliged to take into account. The decision was consistent with the EIA report and relevant policies, and the reasons provided were sufficient for an informed reader.

Finally, the court commented on the discretion to refuse reduction of decisions despite errors of law. It noted that such discretion involves planning judgment and that courts should be cautious in interfering. Since no legal error was found here, the issue did not arise substantively.

Holding and Implications

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

The petitioners' challenge to the Scottish Ministers' decision was dismissed. The court held that the Ministers were not legally obliged to consider the late representations contained in the March 2024 letter, that the matters raised were not so obviously material as to require consideration, and that the reasons provided for the decision were adequate and intelligible. No legal error was established warranting intervention. The decision confirms the discretion of decision-makers in determining materiality and the weight of considerations in planning and consent decisions under the Electricity Act 1989. The ruling does not establish new precedent beyond affirming established principles of materiality, legitimate expectation, and adequacy of reasons in this context.