Appeal under section 239 of the Town and Country Planning (Scotland) Act 1997 by Acorn Bioenergy LTD against The Scottish Ministers (Court of Session)

Factual and Procedural Background

The Appellant applied to the local planning authority for permission to construct a large anaerobic digestion plant on land near a settlement in Scotland. The plant would process distillery and agricultural by-products, produce biomethane and fertiliser, and incorporate carbon-capture technology. [1][2][3]

The site was near several distilleries, agricultural users, and an existing gas pipeline. It was also within a Countryside Around Towns designation under the applicable local development plan. [4][5]

The local planning authority refused permission, relying principally on the site's location within that designation, its scale, industrial appearance, and likely effect on the distinction between the settlement and surrounding countryside. [6]

The Respondents appointed a reporter, who refused the Appellant's appeal. The Appellant then appealed to the Court under section 239 of the Town and Country Planning (Scotland) Act 1997. [7]

Legal Issues Presented

1. Whether the reporter erred in law or acted irrationally by treating the principle and location of the development as the central issue. [8][9]
2. Whether the reporter properly interpreted and balanced the relevant national and local planning policies, including national policy supporting renewable and low-carbon development and local policies protecting the settlement boundary and surrounding countryside. [10][9][11]
3. Whether the reporter unlawfully failed to take account of relevant matters, including economic benefits, biodiversity, circular-economy considerations, just transition, and the project's emissions savings. [12][13][14]
4. Whether the court was entitled to interfere with the reporter's planning judgment on the relative weight to be given to those considerations. [15][11]

Arguments of the Parties

Appellant's Arguments

• The reporter wrongly identified the principle of the development as the single key issue and thereby relegated important national policies to a secondary role. [8]
• The reporter improperly elevated the local countryside policy into an embargo on renewable-energy development and failed to conduct the required overall balancing exercise. [8][10]
• The reporter failed to give proper consideration to economic benefits under national policy, landscape and visual effects, biodiversity, the nature crisis, the circular economy, and just transition. [12][13]
• The Appellant argued that the local countryside policy was incompatible with the later national policy or, alternatively, did not prevent all relevant aspects of the national policy from being weighed in the balance. [10]
• The reporter failed to explain what scale of emissions savings would be required to overcome the local settlement strategy. [16]

Respondents' Arguments

• The reporter was entitled to treat matters concerning the principle and location of the development as carrying the greatest weight. [17][18]
• The reporter properly considered the emissions savings, economic benefits, and support for the development under national renewable-energy policy. [17][19]
• The Appellant's criticisms concerned the weight given to competing factors, which was not a permissible basis for a statutory planning appeal. [20]
• The reporter had considered biodiversity, the circular economy, just transition, renewable energy, and carbon capture, and there was no policy conflict apart from the identified incompatibility involving a local renewable-energy policy. [21][22][23]

Table of Precedents Cited

Court's Reasoning and Analysis

The court emphasised that its function was limited to reviewing the legality of the decision-making process. It could not substitute its own assessment of the planning merits or reweigh competing policies and factual considerations. [25][24][15]

The reporter was entitled to identify the principle of the development, particularly the acceptability of its location under the development plan, as the central issue. The reporter had assessed the relevant matters bearing on that issue. [9][26]

The court accepted that the proposal received support from national policies addressing climate change and low-carbon development. Its proximity to distilleries, agricultural uses, and the gas grid supported the objective of minimising emissions. [27][28]

However, national policy support did not determine the application. The reporter was required to consider the development plan as a whole, including the local policy protecting countryside around the settlement and the policy guarding the settlement boundary. [29][11]

The court upheld the reporter's distinction between incompatibility and inconsistency. The national renewable-energy policy governed the assessment of the proposal's detailed impacts, while the broader balancing exercise across the development plan was informed by the national climate policy and the local settlement strategy. [11]

The local countryside policy was not superseded by the national renewable-energy policy. The reporter was entitled to find conflict with that policy, notwithstanding the project's economic benefits and locational advantages, because the evidence did not establish that the site was the only viable option or that there was a clear and exceptional need for the development at that location. [30]

The reporter then legitimately weighed the site's advantages and emissions savings against the long-term settlement strategy. His conclusion that the emissions savings were insufficient to overcome that strategy was a planning judgment, not an error of law. [31][32]

Reading the decision as a whole, the court found no omission of a relevant factor and no misdirection concerning the meaning or application of the policies. [11][33]

Holding and Implications

The appeal was refused. The court reserved all questions of expenses. [34]

The refusal left the reporter's rejection of planning permission in effect. The court found that the reporter had lawfully balanced national support for low-carbon development against the local settlement strategy and had made a planning judgment with which the court could not interfere. [11][32][34]

The opinion identifies no broader consequence beyond the direct effect on the parties and does not establish a new precedent.