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ScottishPower Renewables (UK) LTD against The Scottish Ministers (Court of Session)
Factual and Procedural Background
The Petitioner, a developer of onshore and offshore wind farms, applied to the Respondents for consent to construct and operate a wind-powered generating station comprising 12 turbines, each up to 200 metres high, in The Forest near The Dark Sky Park. [1][2][3]
Because structures exceeding 150 metres require aviation warning lights unless exempted by the Civil Aviation Authority, the Petitioner proposed reduced lighting and an Aircraft Detection and Obstacle Lighting System (ADLS), supported by a proposed suspensive condition requiring approval of an aviation-lighting mitigation plan before development commenced. [4]
A public inquiry recommended consent for two neighbouring projects but refusal of the Petitioner’s proposal, principally because of uncertainty about whether ADLS would be approved and how long implementation would take. [5][6] The Respondents subsequently refused consent. [7]
The Petitioner sought judicial review on four grounds: inadequate inquiry, failure to consider relevant considerations, irrationality concerning the five-year implementation period, and inadequate reasons. [7]
Legal Issues Presented
- Whether the Respondents breached their duty to make reasonable inquiries concerning the updated regulatory and practical position regarding ADLS. [8][9]
- Whether the Respondents failed to take account of relevant considerations, including later information concerning ADLS, airspace changes, and regulatory guidance. [10][11][12]
- Whether the Respondents irrationally concluded that the development could not be commenced within the usual five-year period. [13][14]
- Whether the Respondents gave adequate and intelligible reasons for refusing consent. [15][16]
Arguments of the Parties
Petitioner's Arguments
- The Respondents failed to inform themselves adequately of developments concerning ADLS, including further trials, updated guidance, and changes to the airspace-change process. [8][17][18]
- Information known to officials was not necessarily within the decision-maker’s knowledge, and the Cabinet Secretary therefore lacked complete and current information. [19]
- The Respondents failed to take account of relevant considerations and could not rationally conclude that ADLS could not be delivered within the applicable period. [10][13]
- The suspensive condition required approval of the mitigation plan before commencement, not completion of ADLS before construction. The Respondents therefore wrongly treated the five-year period as restricting the time available for full installation. [13][20]
- The decision did not adequately explain why ADLS or the suspensive condition could not be implemented within five years. [15][21][22]
Respondents' Arguments
- The decision had to be considered in the context of a completed public inquiry and detailed recommendations by three reporters. Requiring a complete reconsideration after the inquiry would distort the statutory process. [23][24]
- The duty of inquiry required only reasonable steps to obtain sufficient information; the court should intervene only where no reasonable decision-maker could have been satisfied with the inquiries undertaken. [25]
- There had been no material change in the practical uncertainties concerning ADLS, the relevant guidance, or approval of a required airspace change. [26][27][28]
- The conclusions concerning the five-year period were reasonable and the reasons given were intelligible and adequate. [29][30]
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Secretary of State for Education and Science v Tameside Metropolitan BC [1977] AC 1014 | The public-law duty to make reasonable inquiries. | The principle was applied through the later formulation in Plantagenet Alliance. [8] |
| R (on the application of Plantagenet Alliance Ltd) v Secretary of State for Justice [2015] 3 All ER 261 | A decision-maker must take reasonable steps to inform itself; intervention is justified only where no reasonable decision-maker could regard its inquiries as sufficient. | The Court held that the Respondents had not unreasonably failed to make further inquiries. [9][31] |
| HMRC v Tooth [2021] 1 WLR 2811 | Information held by officials cannot automatically be treated as information known to the decision-maker. | The Court accepted that officials’ knowledge was not automatically attributable to the Respondents, but found that the information relied upon was not materially new. [32][33] |
| R (National Association of Health Stores) v Secretary of State for Health [2005] EWCA Civ 154 | The distinction between information held by officials and information within the decision-maker’s knowledge. | The Court relied on this principle when analysing how new information should be communicated to decision-makers. [32] |
| Taylor v Scottish Ministers (No 2) 2019 SLT 681 | The legal and administrative context relevant to the Respondents’ decision-making. | The Court rejected the argument that considering later information would necessarily distort the statutory inquiry process. [34][35] |
| Ibrahimi v Glasgow City Council 2026 CSIH 4 | The duty of inquiry as an application of the public-law duty to act reasonably. | The principle supported the Respondents’ formulation of the limited scope for judicial intervention. [25] |
| Scottish Ministers Petitioners (Gender Recognition Reform (Scotland) Bill (Prohibition on Submission for Royal Assent) Order 2023) 2024 SC 173 | The obligation to take reasonable steps to acquire information sufficient for the decision. | The Court accepted this general formulation but found that the Respondents’ inquiries were legally sufficient. [25] |
| R (on the application of Friends of the Earth Ltd & others) v Heathrow Airport Ltd [2020] UKSC 52; [2021] PTSR 190 | Only considerations so obviously material that failure to consider them would be irrational must be addressed expressly. | The Petitioner had not shown that the alleged omissions met that threshold. [11][36][12] |
| CREEDNZ Inc v Governor General [1981] NZLR 172 | The “so obviously material” test for mandatory relevant considerations. | The principle was adopted as part of the analysis of the alleged failure to consider relevant matters. [37][38] |
| South Bucks DC v Porter (No 2) [2004] 1 WLR 1953 | Reasons must be intelligible and adequate, addressing the principal controversial issues and explaining the outcome. | The Court held that the Respondents’ reasons, read with the reporters’ conclusions, left no real or substantial doubt about why consent was refused. [16][39] |
Court's Reasoning and Analysis
The central planning issue was whether aviation lighting, without ADLS, would cause significant adverse effects on The Dark Sky Park and surrounding landscape. The reporters considered that ADLS would avoid significant effects, making the deliverability of ADLS within a reasonable period decisive. [40][41]
The Court held that later submissions could, where materially relevant, require consideration after an inquiry. Procedural fairness might also require affected participants to be given an opportunity to comment if new evidence led the Respondents to depart from the reporters’ recommendations. [34][35]
Nevertheless, the duty of inquiry remained limited to reasonable steps, and the manner and intensity of inquiry were primarily matters for the public authority. [9]
The Petitioner’s later information about the Mark Hill trials did not materially alter the position. It showed delay in the original trials and proposed further trials, with no report expected before the end of 2025. [42][33]
The draft CAP 764 guidance remained unfinalised when the decision was made. The Court rejected the suggestion that the Respondents were required to delay their decision until publication of the final guidance, and treated reliance on the final version as hindsight. [43][44]
CAP 1616 had already been before the reporters. The Court considered that it appeared designed to streamline the process rather than create a more favourable policy for approving airspace changes, and that uncertainty remained both as to timing and success. [45][46][47][31]
On relevant considerations, the Court held that the matters identified by the Petitioner were not shown to be so obviously material that failure to address them expressly made the decision unlawful. Any criticism that the Respondents had adopted an overly conservative approach concerned judgment on the merits, which was not for the Court to reassess. [12][48]
Although the wording of the decision concerning “installation” and “deployment” was imperfect, the reference to five years was properly understood as referring to commencement of development, not completion of the turbines or ADLS. On that interpretation, the Petitioner’s objection to the five-year period failed. [49][50][51]
Finally, the reasons were adequate because the Respondents adopted the reporters’ conclusions on the relevant uncertainties, including the trials, CAP 764, and airspace-change approval. An informed reader would understand why consent had been refused. [16][52][39]
Holding and Implications
Petition refused. The Court repelled the Petitioner’s pleas-in-law, sustained the Respondents’ second and third pleas-in-law, declined to grant the orders sought, and reserved expenses. [53][54]
The decision directly upheld the refusal of consent for the proposed wind farm. The Court found no unlawful failure to inquire, no unlawful omission of relevant considerations, no irrationality concerning the implementation period, and no inadequacy of reasons. [31][12][51][39] No broader implication or new precedent was stated in the opinion.
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