Summary of Opinion

Factual and Procedural Background

Judge Wise delivered the opinion in an appeal under section 239 of the Town and Country Planning (Scotland) Act 1997. Company A (a renewable energy developer) submitted on 15 December 2022 an application to the local planning authority for a wind farm of eight turbines and associated on-site infrastructure (excluding the off-site grid connection). The Appellant, an operator of a nearby farm and estate, objected. The local authority refused; on appeal Company A obtained a reporter's decision dated 14 January 2025 granting planning permission subject to conditions. The Appellant challenged that decision in this statutory appeal. The core factual feature is that the grid connection was not part of the planning application and its details were to be determined later by the Distribution Network Operator (DNO) or by a separate consent process.

Legal Issues Presented

1. Whether the construction of the wind farm and its grid connection constitute a single "project" for the purposes of environmental impact assessment (EIA) under EU Directive 2011/92/EU (as amended) and the implementing Scottish Regulations.
2. Whether the decision maker's evaluation of that question was sufficiently fact‑specific and reasoned.
3. Whether it was irrational to take into account the benefits of the completed, grid‑connected development without assessing the likely environmental disbenefits of the grid connection.

Arguments of the Parties

Appellant's Arguments

• The wind farm and its necessary grid connection are a single project and the EIA for the wind farm was legally inadequate because it did not assess cumulative effects including the grid connection.
• It was irrational for the reporter to attribute benefits to the completed development (renewable generation, socio‑economic benefits) without assessing environmental disbenefits of the grid connection.
• The reporter's reasons on the project‑splitting point were brief and failed to undertake the required fact‑specific evaluative exercise.

Respondents' Arguments

• The reporter was entitled to assess the wind farm as presented and to proceed on the basis that any future grid connection, if it required permission, would be the subject of its own evaluation.
• Any error on the reporter's part was not material to the ultimate decision.
• A staged approach to assessment can be legitimate and may avoid delay ("sclerosis") in the planning system.

Interested Party's Arguments (Company A)

• Practical and commercial difficulties can make early, detailed assessment of off‑site grid works unrealistic; connection offers and reinforcement works are often unknown and costly, and projects commonly proceed without secured network access.
• Affidavits were lodged describing industry practice and the structured grid connection process, and asserting that detailed assessment of off‑site works is not typically carried out at the wind farm application stage.

Table of Precedents Cited

Court's Reasoning and Analysis

The court framed the central question as whether the wind farm construction and its grid connection formed a single project for EIA purposes and whether the reporter had undertaken the requisite fact‑specific evaluative exercise. It summarised the relevant statutory and directive framework (2011 Directive as amended, and the Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2017) and reviewed domestic, EU and Irish authorities establishing that (i) the definition of "project" must be judged broadly and realistically, (ii) cumulative and anticipated effects must be considered where relevant, and (iii) the question of project identity is a matter of evaluative judgment for the decision maker subject to public law review.

The court analysed the reporter's reasoning (paragraph 129 of the decision). It concluded the reporter acknowledged the uncertainty about whether a future grid connection would require planning permission but failed to undertake the necessary fact‑specific analysis of the interrelationship between the two phases of development. The reporter described the objectors' invocation of "salami slicing" as "misdirected" by equating the concept with an intention to circumvent the Directive; the court held that was an error of law because the proper test is the effect a project is likely to have, not the decision maker's perceived intention. The reporter's statement that the grid connection "is not part of the current proposal" was held to be a bald factual observation, not an evaluative conclusion justified by analysis of relevant factors (including functional interdependence).

The court considered arguments supporting a staged approach and accepted that staged assessment can be legitimate (citing Sizewell and other authorities) and that practical commercial constraints may be relevant. Nonetheless, on the available material the court found there had been no adequate evaluative exercise here and that the absence of such analysis was a material error. The court also accepted the force of the irrationality challenge: it was irrational to place weight on the benefits of the completed, grid‑connected scheme without assessing foreseeable disbenefits where those could, at least in part, have been evaluated.

Holding and Implications

DECISION QUASHED AND REMITTED

Holding: The court quashed the reporter's decision of 14 January 2025 and remitted the appeal for reconsideration by a different reporter. The court found material errors in the reporter's approach: a failure to perform the required fact‑specific evaluative analysis on whether the wind farm and its grid connection constituted a single project for EIA purposes, and errors in reasoning on the "salami slicing" point; it also found merit in the irrationality challenge.

Implications: The immediate practical consequence is that the prior grant of planning permission is set aside and the respondents must have the matter reconsidered afresh by another reporter. The court did not purport to determine as a matter of law whether the wind farm and grid connection are a single project in this case; it emphasised that that determination is for the competent authority after proper evaluative consideration. The opinion did not state that a new binding precedent was created; it reaffirmed the requirement for reasoned, fact‑specific assessment in line with the authorities cited.