LexisPSL's Colleen Theron and Deirdre Lyons detail a case that confirms local authorities and developers must continue to consider regional strategies in planning applications
In May 2011, the Court of Session (CoS) in Scotland decided that the planning consent granted for a major wind farm at Fallago Rig in the Scottish Borders should stand. North British Windpower successfully defended a judicial review petition seeking the quashing of the consent by the petitioners, Dulce Packard and others.
Originally the application was recommended for refusal due to concern by the Ministry of Defence (MoD) that the wind farm would interfere with its radar. Following the withdrawal of MoD objections and a second public inquiry, it received ministers’ approval.
The petitioners challenged the ministry’s decision, arguing that during developer/MoD discussions, ministers had “seduced” the MoD into withdrawing its objections, and thereby a bias towards a predetermined application consent existed. Petitioners further claimed there had been no new evidence to justify reopening the inquiry and that the suspensive radar mitigation conditions attached to the consent were ultra vires – meaning that making the decision was beyond the powers of those involved.
A judicial review was rejected by the CoS on the following grounds:
- rather than bias, correspondence revealed an open and fair mind on the officials’ part;
- decision makers are allowed to meet decision objectors;
- judicial or quasi-judicial officeholders’ roles are distinct from the position of a minister – while ministers must address planning issues “fairly and on their merits”, a “predisposition” is permissible;
- judicial review of the second inquiry was forbidden as the petitioners had no new information; and
- the suspensive conditions were appropriate.
The decision to grant consent to the wind farm can be viewed as a favourable outcome to help Scotland achieve its renewables targets and to benefit Scottish energy consumers. Preparatory work is already under way on the project, which is expected to provide enough energy to power around 90,000 homes once complete.
The MoD commonly objects to turbines on the grounds they can interfere with radar. It has a statutory duty to safeguard certain sites and airspace from radar interference in the interests of national security, and for the safe operation of passenger and military aviation. Wind farms can disrupt UK coastline radar systems and jeopardise Britain’s national air defence. Consequently, it is best practice for windfarm developers and local planning authorities to consult the MoD about sites.
