Scottish Court of Session Decisions

 

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 22
P480/13	OPINION OF LORD DOHERTY   in the Petition   (FIRST) TRUMP INTERNATIONAL GOLF CLUB SCOTLAND LIMITED and (SECOND) THE TRUMP ORGANIZATION LLC Petitioners;   against   THE SCOTTISH MINISTERS Respondents;   and   ABERDEEN OFFSHORE WIND FARM LIMITED Interested Party:   for   Judicial review of decisions of the Scottish Ministers, dated 26 March 2013, (a) not to hold a public inquiry into and (b) to grant, subject to conditions, consent under section 36 of the Electricity Act 1989 for the construction and operation of a wind-powered electricity generating station in Aberdeen Bay approximately 2km off the coast, east of Blackdog, Aberdeen ________________

 

Petitioners: Steele QC, Burnet; Dundas & Wilson CS LLP

Respondents: Mure QC, Springham; Scottish Government Legal Directorate

Interested Party: Armstrong QC; Shepherd & Wedderburn LLP

 

11 February 2014

Introduction

[1] This petition for judicial review challenges the decisions of the Scottish Ministers dated 26 March 2013 (a) not to hold a public inquiry, and (b) to grant consent to Aberdeen Offshore Wind Farm Limited ("the interested party") under section 36 of the Electricity Act 1989 ("the Act"). The decisions were made by the Minister for Enterprise, Energy and Tourism and were intimated by letter dated 26 March 2013 ("the decision letter") (6/1). The consent is for the construction and operation of a deployment centre for testing offshore wind turbines, the European Offshore Wind Deployment Centre ("EOWDC"). The project consists of eleven wind turbines, with a maximum power generation of up to 100MW.

[2] The petitioners are the owners and developers of a golf course and resort development at the Menie Estate, Balmedie, Aberdeenshire ("the Trump development."). It was granted planning permission in December 2008 following the respondents' decision to call-in the application and hold a public local inquiry in relation to it. The site of EOWDC is in Aberdeen Bay, approximately 2km off the coast of Blackdog. The nearest proposed turbine would be approximately 3.5km from the Trump development.

[3] The petitioners objected to the interested party's application for s36 consent. Following consultation with a variety of bodies, and consideration of the application and objections, civil servants prepared a report for the Minister to consider. On 26 March 2013 the Minister decided that it was not appropriate to hold a public inquiry, and he granted consent.

[4] On 17 May 2013, the petitioners obtained a first order in the present proceedings. On 20 May 2013 the petition was served on the respondents and on the interested party. On 24 September 2013 the Lord Ordinary issued her Opinion in the Petition for Judicial Review by Sustainable Shetland 2013 SLT 1173. On 26 September 2013 the petitioners intimated a minute of amendment. The minute added a new ground of challenge - that the grant of s36 consent had been unlawful because the interested party held neither a licence granted under s6 of the 1989 Act nor an exemption (in terms of s5) from the prohibition on unlicensed supply etc contained in s4.

[5] The respondents and the interested party lodged answers to the petition. Parties were ordained to lodge notes of argument. A first hearing took place before me on 12, 13, 14 and 15 November 2013.

 

The issues

[6] I find it convenient to deal with the issues canvassed before me in the following order:

(i) Statutory construction - the Electricity Act 1989 (paragraphs 12-46).

(ii) Apparent bias (paragraphs 47-109).

(iii) The decision not to hold a public inquiry (paragraphs 110-129).

(iv) ECHR (paragraphs 130-134).

(v) The matters raised in Stat 27 of the petition (paragraphs 135-148).

(vi) The Court's discretion to refuse to grant reduction (paragraphs 149-152).

First I shall set out excerpts from some of the relevant legislation.

 

Relevant statutory provisions

[7] The Electricity Act 1989 ("the 1989 Act") provides:

"Part I ELECTRICITY SUPPLY

 

Protection of public interest

 

...

 

4.- Prohibition on unlicensed supply etc

 

(1) A person who-

 

(a) generates electricity for the purpose of giving a supply to any premises or enabling a supply to be so given;

 

(b) participates in the transmission of electricity for that purpose;

 

(bb) distributes electricity for that purpose;

 

(c) supplies electricity to any premises;

 

(d) participates in the operation of an electricity interconnector; or

 

(e) provides a smart meter communication service,

 

shall be guilty of an offence unless he is authorised to do so by a licence.

 

....

 

(4) In this Part, unless the context otherwise requires-

 

...

 

'generate', in relation to electricity, means generate at a relevant place;

 

...

 

(5) In this section-

 

'relevant place' means a place in Great Britain, in the territorial sea adjacent to Great Britain or in a Renewable Energy Zone; ...

 

5.- Exemptions from prohibition.

 

(1) The Secretary of State may by order grant exemption from paragraph (a), (b), (bb), (c), (d) or (e) of section 4(1)

 

(a) either to a person or to persons of a class;

 

(b) either generally or to such extent as may be specified in the order; and

 

(c) either unconditionally or subject to such conditions as may be so specified.

 

...

 

6.- Licences authorising supply, etc

(1) The Authority may grant any of the following licences-

 

(a) a licence authorising a person to generate electricity for the purpose of giving a supply to any premises or enabling a supply to be so given ('a generation licence');

 

(b) a licence authorising a person to participate in the transmission of electricity for that purpose ('a transmission licence');

 

(c) a licence authorising a person to distribute electricity for that purpose ('a distribution licence');

 

(d) a licence authorising a person to supply electricity to premises ('a supply licence');

 

(e) a licence authorising a person to participate in the operation of an electricity interconnector ('an interconnector licence'); or

 

(f) subject to subsection (1C), a licence authorising a person to provide a smart meter communication service ('a smart meter communication licence').

 

(1A) Subject to subsection (1B), the Secretary of State may grant a smart meter communication licence.

 

...

 

(9) In this Part-

 

...

 

'electricity generator'" means any person who is authorised by a generation licence to generate electricity except where that person is acting otherwise than for purposes connected with the carrying on of activities authorised by the licence;

 

'electricity supplier' means any person who is authorised by a supply licence to supply electricity except where he is acting otherwise than for purposes connected with the carrying on of activities authorised by the licence.

 

....

 

36.- Consent required for construction etc. of generating stations

(1) Subject to subsections (1A) to (2) and (4) below, a generating station shall not be constructed at a relevant place (within the meaning of section 4), and a generating station at such a place shall not be extended or operated except in accordance with a consent granted by the Secretary of State.

 

...

 

(1C) This section is subject to section 12 of the Marine and Coastal Access Act 2009 (which transfers certain functions of the Secretary of State to the Marine Management Organisation).

 

(2) Subsection (1) above shall not apply to a generating station whose capacity-

 

(a) does not exceed the permitted capacity, that is to say, 50 megawatts; and

 

(b) in the case of a generating station which is to be constructed or extended, will not exceed the permitted capacity when it is constructed or extended;

 

and an order under this subsection may make different provision for generating stations of different classes or descriptions.

 

(3) The Secretary of State may by order provide that subsection (2) above shall have effect as if for the permitted capacity mentioned in paragraph (a) there were substituted such other capacity as may be specified in the order.

 

(4) The Secretary of State may by order direct that subsection (1) above shall not apply to generating stations of a particular class or description, either generally or for such purposes as may be specified in the order.

 

(5) Subject to subsections (5A) and (5B), a consent under this section-

 

(a) may include such conditions (including conditions as to the ownership or operation of the station) as appear to the Secretary of State to be appropriate; and

 

(b) shall continue in force for such period as may be specified in or determined by or under the consent.

 

....

 

(6) Any person who without reasonable excuse contravenes the provisions of this section shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

 

...

 

(8) The provisions of Schedule 8 to this Act (which relate to consents under this section and section 37 below) shall have effect ...

 

36C - Variation of consents under section 36

(1) The person for the time being entitled to the benefit of a section 36 consent may make an application to the appropriate authority for the consent to be varied.

 

...

 

37.- Consent required for overhead lines

(1) Subject to subsections (1A) to (2) below, an electric line shall not be installed or kept installed above ground except in accordance with a consent granted by the Secretary of State.

 

...

 

(3) A consent under this section-

 

(a) may include such conditions (including conditions as to the ownership and operation of the line) as appear to the Secretary of State to be appropriate;

 

(b) may be varied or revoked by the Secretary of State at any time after the end of such period as may be specified in the consent; and

 

(c) subject to paragraph (b) above, shall continue in force for such period as may be specified in or determined by or under the consent.

 

(4) Any person who without reasonable excuse contravenes the provisions of this section shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

 

...

 

38. Preservation of amenity and fisheries

The provisions of Schedule 9 to this Act (which relate to the preservation of amenity and fisheries) shall have effect.

 

...

 

Schedule 8

 

CONSENTS UNDER SECTIONS 36 AND 37

 

Section 36(8)

 

1.- Applications for consent

(1) An application for a consent under section 36 or 37 of this Act shall be in writing and shall describe by reference to a map the land to which the application relates, that is, the land-

 

(a) on which the generating station is proposed to be constructed, extended or operated; or

 

(b) across which the electric line is proposed to be installed or kept installed.

 

...

 

(3) The Secretary of State may by regulations make provision for determining the fees to be paid on applications for consent under section 36 or 37 of this Act, and the circumstances in which they are to be paid ...

 

2.- Objections by relevant planning authority

(1) Where an application is made to the Secretary of State for his consent under section 36 or 37 of this Act, notice of the application shall be served on the relevant planning authority.

 

(2) Where the relevant planning authority notify the Secretary of State that they object to the application and their objection is not withdrawn, the Secretary of State-

 

(a) shall cause a public inquiry to be held; and

 

(b) before determining whether to give his consent, shall consider the objection and the report of the person who held the inquiry.

 

...

 

3.- Objections by other persons

(1) The Secretary of State may by regulations make provision for securing-

 

(a) that notice of any application for consent under section 36 or 37 of this Act shall, in such circumstances as may be prescribed by the regulations, be published in such manner as may be so prescribed;

 

(b) that notice of any such application shall, in such circumstances as may be prescribed by the regulations or where the Secretary of State so directs, be served on such persons as may be so prescribed or, as the case may be, specified in the direction;

 

(c) that every notice published or served in pursuance of the regulations shall state the time within which, and the manner in which, objections to the application may be made by persons other than the relevant planning authority, and that the time so stated shall not be less than such minimum period as may be prescribed by the regulations; and

 

(d) that, in so far as any such notice requires objections to be sent to any person other than the Secretary of State, copies of the objections shall be sent to the Secretary of State by that person;

 

and in relation to applications for consent under section 36 of this Act to the extension of a generating station or to the operation of such a station in a different manner, the regulations may include provision for enabling the Secretary of State to give directions dispensing with the requirements of the regulations in such cases as he thinks fit.

 

(2) Where in the case of an application for consent under section 36 or 37 of this Act-

 

(a) the Secretary of State is not required by virtue of paragraph 2(2) above to cause a public inquiry to be held; but

 

(b) objections or copies of objections have been sent to the Secretary of State in pursuance of regulations made under this paragraph,

 

the Secretary of State shall consider those objections, together with all other material considerations, with a view to determining whether a public inquiry should be held with respect to the application and, if he thinks it appropriate to do so, shall cause a public inquiry to be held, either in addition to or instead of any other hearing or opportunity of stating objections to the application.

 

...

 

7A - Generating stations not within areas of relevant planning authorities

(1) This paragraph applies to every case where an application for a consent under section 36 of this Act relates to-

 

(a) the construction or operation of a generating station the whole or a part of which is to be, or is, at a place that is not within the area of a relevant planning authority; or

 

(b) the extension of a generating station at or to a place the whole or a part of which is not within such an area.

 

(2) This Schedule shall have effect in relation to cases to which this paragraph applies with the following modifications.

 

(3) In paragraph 1(1), for the words from 'land to which' onwards substitute 'place to which the application relates, that is, the place where it is proposed to construct the generating station, where the proposed extension will be or where the station proposed to be operated is situated.'

 

(4) Paragraph 2 does not apply where no part of the place to which the application relates is within the area of a relevant planning authority.

 

(5) In paragraph 4-

 

(a) in sub-paragraph (1)-

 

(i) in paragraph (a), for 'land' substitute 'place'; and

 

(ii) in paragraph (b), for 'in the locality' substitute 'in the area specified in or determined in accordance with regulations made by the Secretary of State';

 

(b) in sub-paragraph (2), for the words from 'the locality' onwards substitute 'the area specified in or determined in accordance with regulations made by the Secretary of State.'; and

 

(c) in sub-paragraph (3), for 'in the locality' substitute 'who are likely to be affected by the consent applied for if it is given'.

 

(6) Paragraph 5 does not apply; but sub-paragraphs (7) to (10) apply where-

 

(a) a public inquiry is to be held in accordance with paragraph 2(2) or 3(2); and

 

(b) the application for consent relates to a place a part of which is in the area of one or more relevant planning authorities.

 

...

 

Schedule 9

 

PRESERVATION OF AMENITY AND FISHERIES.

 

Section 38

 

Preservation of amenity: England and Wales

 

1. - ...

 

(3) In this paragraph-

 

'building' includes structure;

 

'relevant proposals' means any proposals-

 

(a) for the construction or extension of a generating station of a capacity not less than 10 megawatts, or for the operation of such a station in a different manner;

 

(b) for the installation (whether above or below ground) of an electric line; or

 

(c) for the execution of any other works for or in connection with the transmission or supply of electricity.

 

...

 

Preservation of amenity and fisheries: Scotland

 

3.-(1) In formulating any relevant proposals, a licence holder or a person authorised by an exemption to generate, distribute, supply or participate in the transmission of electricity -

 

(a) shall have regard to the desirability of preserving natural beauty, of conserving flora, fauna and geological or physiographical features of special interest and of protecting sites, buildings and objects of architectural, historic or archaeological interest; and

 

(b) shall do what he reasonably can to mitigate any effect which the proposals would have on the natural beauty of the countryside or on any such flora, fauna, features, sites, buildings or objects.

 

(2) In considering any relevant proposals for which his consent is required under section 36 or 37 of this Act, the Secretary of State shall have regard to-

 

(a) the desirability of the matters mentioned in paragraph (a) of sub-paragraph (1) above; and

 

(b) the extent to which the person by whom the proposals were formulated has complied with his duty under paragraph (b) of that sub-paragraph.

 

(3) Without prejudice to sub-paragraphs (1) and (2) above, in exercising any relevant functions each of the following, namely, a licence holder, a person authorised by an exemption to generate or supply electricity and the Secretary of State shall avoid, so far as possible, causing injury to fisheries or to the stock of fish in any waters.

 

(4) In this paragraph -

 

...

 

'relevant proposals' has the same meaning as in paragraph 1 above and, for the purposes of this paragraph, any such order as is mentioned in sub-paragraph (4) of that paragraph may be made under this sub-paragraph;

 

'relevant functions' means any powers conferred and any duties imposed by or under this Act.

 

..."

 

[8] The Electricity (Applications for Consent) Regulations 1990 (SI 455) provide:

"...

 

2. - These Regulations apply in relation to an application for a consent-

 

(a) under section 36 to construct, extend or operate a generating station;

 

(b) under section 37 to install or keep installed an electric line above ground,

 

which is received by the Secretary of State on or after the date on which these Regulations come into force.

 

....

 

11.- (1) Subject to paragraph (2), the fee to be paid to the Secretary of State upon application being made for a consent under section 36 or section 37 shall be as specified in the Table below.

 

TABLE

....

 

Subject matter of application for consent	Fee
4. Construction or construction and operation of a generating station of capacity-
(a) not exceeding 10 megawatts	£6,000
(b) exceeding 10 megawatts but not exceeding 100 megawatts	£18,000
(c) exceeding 100 megawatts but not exceeding 200 megawatts	£24,000
(d) exceeding 200 megawatts but not exceeding 500 megawatts	£36,000
(e) exceeding 500 megawatts	£60,000
5. Extension or extension and operation of a generating station resulting in increase in capacity-
(a) not exceeding 10 megawatts	£6,000
(b) exceeding 10 megawatts but not exceeding 100 megawatts	£18,000
(c) exceeding 100 megawatts but not exceeding 200 megawatts	£24,000
(d) exceeding 200 megawatts but not exceeding 500 megawatts	£36,000
(e) exceeding 500 megawatts	£60,000
6. Extension of a nuclear generating station by retrofitting of emission control equipment	£6,000
7. Any other extension of a generating station	£1,200
8. Operation only or change to manner of operation of a generating station	£1,200

 

..."

 

[9] The Electricity Act 1989 (Requirement of Consent for Offshore Generating Stations)(Scotland) Order 2002 (SI 407) ("the 2002 Order") provides:

"....

 

3. Generating stations - permitted capacity

In the case of generating stations situated in the territorial sea (and wholly or mainly driven by water or wind), section 36(2) of the Electricity Act 1989 shall have effect as if, for the permitted capacity of 50 megawatts mentioned therein, there were substituted the capacity of 1 megawatt.

 

...."

 

[10] At the time sections 36 and 37 of the Electricity Act 1989 were brought into force the Environmental Assessment (Scotland) Regulations 1988 (SI 1221) (as amended by the Electricity Act (Consequential Modifications of Subordinate Legislation) Order 1990 (SI 526)), provided:

" ...

PART III ELECTRICITY APPLICATIONS

 

Application

33. This Part of these Regulations applies in any case where an electricity application is received by the Secretary of State on or after 15^th July 1988.

 

Interpretation

34. In this Part of these Regulations, unless the contrary intention appears-

 

'annex 1 application' or 'annex 2 application' means an application for consent or approval under-

 

the Electricity Act 1989;

 

in respect of development of any description in paragraph 2 of Schedule 1 or in paragraph 3 of Schedule 2 respectively;

 

'electricity application' means an annex 1 application or an annex 2 application.

Consent and annex 1 and annex 2 applications

35. (1)  This regulation applies to-

 

(a) an annex 1 application; or

 

(b) an annex 2 application where the proposed development shall be likely to have significant effects on the environment by virtue inter alia of its nature, size or location;

 

except where it is exempt development.

 

(2) The Secretary of State shall not grant consent or approval in respect of an electricity application to which this regulation applies unless he has taken into consideration environmental information in respect of the proposed development.

 

(3) Subject to any direction by the Secretary of State, for the purposes of paragraph (1)(b) a proposed development shall only be taken to be likely to have significant effects on the environment by virtue inter alia of its nature, size or location where the applicant and the planning authority accept that this is the case.

 

Consultation where planning authority notified of Environmental Statement

42. .... (6) In making his determination in respect of an electricity application to which regulation 35 applies, the Secretary of State shall consider the Environmental Statement provided by the applicant, the report received under paragraph (5) and any representations received.

 

...

 

SCHEDULE 1 Regulations 4, 5, 7, 8, 34 and 47

 

DESCRIPTIONS OF DEVELOPMENT

 

....

 

2. A thermal power station or other combustion installation with a heat output of 300 megawatts or more and a nuclear power station and other nuclear reactor (except a research installation for the production and conversion of fissionable and fertile materials, whose maximum power does not exceed 1 kilowatt continuous thermal load).

 

....

 

 

SCHEDULE 2 Regulations 4, 5, 7, 8, 34 and 47

 

DESCRIPTIONS OF DEVELOPMENT

 

Development for any of the following purposes:

 

....

 

Energy industry

3.-(a) An industrial installation for the production of electricity together with steam or hot water, not being an installation falling within Schedule 1;

 

....

 

(c) the transmission of electrical energy by over-head cables;

 

....

 

(k) an installation for hydroelectric energy production.

 

....

 

SCHEDULE 3 Regulations 2, 22, 43 54 and 68

 

ENVIRONMENTAL STATEMENTS

 

1. An Environmental Statement comprises a document or series of documents prepared by the applicant providing, for the purpose of taking into consideration environmental information in respect of a proposed development, the information specified in paragraph 2 (referred to in this Schedule as "the specified information").

 

2. The specified information is-

 

(a) a description of the proposed development, comprising information about the site and the design and size or scale of the proposed development;

 

(b) the data necessary to identify and assess the main effects which that development is likely to have on the environment;

 

(c) a description of the likely significant effects, direct and indirect, on the environment of the proposed development, explained by reference to its possible impact on-

 

A. human beings;

 

B. flora;

 

C. fauna;

 

D. soil;

 

E. water;

 

F. air;

 

G. climate;

 

H. the landscape;

 

I. the inter-action between any of the foregoing;

 

J. material assets;

 

K. the cultural heritage;

 

(d) where significant adverse effects are identified with respect to any of the foregoing, a description of the measures envisaged in order to avoid, reduce or remedy those effects;

 

(e) and a summary in non-technical language of the information specified above.

 

3. An Environmental Statement may include, by way of explanation or amplification of any specified information, further information on any of the following matters:-

 

...

 

(d) (in outline) the main alternatives if any studied by the applicant, appellant or authority and an indication or the main reasons for their choice, taking into account the environmental effects;

 

(e) the likely significant direct and indirect effects on the environment of the proposed development which may result from-

 

(i) the use of natural resources;

 

(ii) the emission of pollutants, the creation of nuisances, and the elimination of waste;

 

(f) the forecasting methods used to assess any effects on the environment about which information is given under sub-paragraph (e); and

 

(g) any difficulties, such as technical deficiencies or lack of know-how, encountered in compiling any specified information.

 

In paragraph (e) 'effects' includes secondary, cumulative, short, medium and long-term, permanent, temporary, positive and negative effects. 

...."

 

[11] The Electricity Works (Environmental Impact Assessment)(Scotland) Regulations 2000 (SI 320) provide:

"1.- Citation, commencement, application and extent

 

(1) These Regulations ... shall come into force on 5^th October 2000.

 

(2) These Regulations apply in the case of-

 

(a) any application under section 36 of the Electricity Act 1989 for consent to construct, extend or operate a generating station; or

 

(b) any application under section 37 of the Electricity Act 1989 for consent to install or keep installed an electric line above ground,

 

which is received by the Scottish Ministers on or after the date on which these Regulations come into force.

 

(3) These Regulations extend to Scotland only.

 

2.- Interpretation

 

(1) In these Regulations-

 

'the Act' means the Electricity Act 1989 and references to sections are references to sections of the Act;

 

...

 

'development' means the carrying out of building, engineering or other operations in, on, over or under land or sea in pursuance of any application to which these Regulations apply;

 

...

 

'EIA development' means development which is-

 

(a) Schedule 1 development;

 

(b) Schedule 2 development which falls within regulation 3(2); or

 

(c) any other development which the Scottish Ministers determine is EIA development in accordance with regulation 3(4) or 6;

 

...

 

'Generating station' has the same meaning as in section 64;

 

...

 

'Schedule 1 development' means development of a description set out in Schedule 1;

 

'Schedule 2 development' means development of a description set out in Schedule 2;

 

...

 

'section 36 consent' means a consent under section 36 to construct, extend or operate a generating station; and

 

'section 37 consent' means a consent under section 37 to install or keep installed an electric line above ground.

 

...

 

3.- Prohibition of grant of consent without consideration of environmental information

(1) The Scottish Ministers shall not grant a section 36 consent or a section 37 consent which relates to EIA development unless the requirements of regulation 4 have been satisfied.

 

(2) Schedule 2 development shall constitute EIA development if one of the events set out in paragraph (3) has occurred.

 

(3) The events referred to in paragraph (2) are-

 

(a) the submission by the applicant in relation to the proposed development of a document referred to by the applicant as an Environmental Statement for the purposes of these Regulations; or

 

(b) a determination by the Scottish Ministers (whether pursuant to a request for a screening opinion or regulation 6), having taken into account such of the criteria set out in Schedule 3 as are relevant to the development, that the application relates to EIA development as the development is likely to have significant effects on the environment by virtue of factors such as its nature, size or location.

 

(4) In spite of the fact that any development is not Schedule 1 development or Schedule 2 development, the Scottish Ministers may, having taken into account such of the criteria set out in Schedule 3 as are relevant to the development, make a determination (whether pursuant to a request for a screening opinion or regulation 6) that an application for a section 36 consent or a section 37 consent is for EIA development as the development is likely to have significant effects on the environment by virtue of factors such as its nature, size or location.

 

4.- Procedure for grant of consent where Environmental Statement is required

 

(1) An applicant shall submit in relation to any application for a section 36 consent or a section 37 consent which relates to EIA development an Environmental Statement which includes-

 

(a) the information referred to in Part II of Schedule 4; and

 

(b) such of the information referred to in Part I of Schedule 4 as is reasonably required to assess the environmental effects of the development and which having regard in particular to current knowledge and methods of assessment, the applicant can reasonably be required to compile taking into account the terms of any scoping opinion given.

 

(2) In relation to any application for a section 36 consent or a section 37 consent which relates to EIA development, the Scottish Ministers shall not grant the required consent unless-

 

(a) they are satisfied that the applicant has complied with his obligations under paragraph (1);

 

(b) they have taken into consideration the environmental information (including without limitation any views expressed by other EEA States under regulation 12) and state in their decision in relation to that consent that they have done so; ...

 

Schedule 1

 

DESCRIPTIONS OF DEVELOPMENT FOR THE PURPOSES OF THE DEFINITION OF 'SCHEDULE 1 DEVELOPMENT'

 

Descriptions of development

 

The carrying out of development to provide any of the following -

 

(a) a generating station, the construction of which (or the operation of which) will require a section 36 consent and which is either-

 

(i) a nuclear generating station; or

 

(ii) a non-nuclear generating station with a heat output of 300 megawatts or more; or

 

(b) an electric line installed above ground with (a) a voltage of 220 kilovolts or more and (b) a length of more than 15 kilometres, the installation of which (or the keeping installed of which) will require a section 37 consent; or

 

(c) any change to or extension of development listed in this Schedule where such a change or extension in itself meets the thresholds, if any, or description of development set out in this Schedule.

 

Schedule 2

 

DESCRIPTION OF DEVELOPMENT FOR THE PURPOSES OF THE DEFINITION OF 'SCHEDULE 2 DEVELOPMENT'

 

The carrying out of development to provide any of the following-

 

(a) a generating station, the construction of which (or the operation of which) will require a section 36 consent but which is not Schedule 1 development;

 

...

 

(f) any change to or extension of development of a description listed in Schedule 1 (other than a change or extension falling within paragraph (c) of that Schedule) or this Schedule where that development is already authorised, executed, or in the process of being executed, and the change or extensions may have significant adverse effects on the environment.

 

...

 

Schedule 4

 

CONTENT OF AN ENVIRONMENTAL STATEMENT

 

Part I

 

...

 

2. A description of the aspects of the environment likely to be significantly affected by the development, including, in particular, population, fauna, flora, soil, water, air, climatic factors, material assets, including the architectural and archaeological heritage, landscape and the inter-relationship between the above factors.

 

3. A description of the likely significant effects of the development on the environment, which should cover the direct effects and any indirect, secondary, cumulative, short, medium and long-term, permanent and temporary, positive and negative effects of the development, resulting from-

 

(a) the existence of the development;

 

(b) the use of natural resources;

 

(c) the emission of pollutants, the creation of nuisances and the elimination of waste,

 

and the description by the applicant of the forecasting methods used to assess the effects on the environment.

 

4. A description of the measures envisaged to prevent, reduce and where possible offset any significant adverse effects on the environment.

 

...

Part II

 

2. A description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects.

 

3. The data required to identify and assess the main effects which the development is likely to have on the environment.

 

4. The main alternatives studied by the applicant and the main reasons for his choice, taking into account the environmental effects ...."

 

 

Statutory construction - the Electricity Act 1989

Counsel for the petitioners' submissions

[12] Mr Steele submitted that on a proper construction of the 1989 Act the only persons to whom a s36 consent could be granted were licence holders (s6) or persons exempted from the requirement to have a licence to carry out any of the regulated activities (s5). Any other interpretation of the relevant provisions of the Act would be absurd. It could not have been Parliament's intention that the requirements of Sched 9, paras 3(1) and 3(2)(b) as to protection of amenity could be avoided by the expedient of an application being submitted by a party who was neither a licence holder nor an exempted person.

[13] The interested party did not hold such a licence nor was it authorised by an exemption to carry out any of the activities mentioned in para 3(1) of Sched 9. Its application was therefore incompetent, and it was unlawful for the respondents to have granted consent.

[14] Mr Steele founded on the decision and reasoning of the Lord Ordinary in Petition for Judicial Review by Sustainable Shetland, supra, paragraphs 83-117, which he submitted I should follow. He placed particular reliance on paragraphs 91-93. He also referred to more general observations on the 1989 Act made by the Lord Ordinary in William Grant & Sons Distillers Ltd v Scottish Ministers [2012] CSOH 98, at para 17.

[15] Here the consent granted was for the construction and operation of an electricity generating station. The consent for "operation" must include the process of generation. The respondents had "in effect granted permission to a person to carry out the operation of generation" which generation would, in the absence of a licence to generate or an exemption authorising generation, be a criminal offence.

[16] Mr Steele recognised that there were cases where s36 or s37 consent was required where the particular proposals were not "relevant proposals"; and therefore that para 3 of Sched 9 did not apply to them. He submitted that did not undermine his proposed construction. He suggested that in the case of generating stations in the territorial sea with a capacity of less than 10 MW  there would be less reason to be concerned as to possible effects on amenity. He maintained that para 3(3) suggested that para 3 contemplated only three categories of persons - the Secretary of State (now the Scottish Ministers), licence holders, and persons authorised by an exemption to generate or supply electricity. Restricting those who could obtain consent to licence holders or exempt persons ensured that only suitable persons would be granted s36 consent. The licensing regime focussed on the suitability (financial and otherwise) of applicants to carry out the authorised activities - the consent regime did not. Mr Steele suggested that unless his construction was correct an applicant with "a string of fraud convictions", or an applicant unable to finance the activities consented to, might be granted s36 consent. At one point he went so far as to submit that it would be unlawful for the respondents to take such considerations into account when deciding whether to grant s36 consent. Ultimately, he departed from that position. He accepted that it would be lawful for the respondents to have regard to matters such as police objections to an applicant. The difference was that with the licensing regime detailed checks were part of the process. With the consent regime they were not. He directed my attention to a forensic accounting report on the interested party (6/46) which the petitioners had had prepared since consent was granted. He maintained that it raised doubts as to whether the interested party had sufficient financial resources to construct the generating station.

[17] Mr Steele accepted - irrespective of whether the petitioners' construction or the respondents' construction of the Act was correct - that in the case of applications for s36 or s37 consent which comprised "relevant proposals" the respondents had the duty set out in Sched 9, para 3(2)(a). However, on the respondents' construction an applicant need not be subject to the para 3(1)(b) duty to mitigate. That was significant. It was no answer to say that the respondents and all applicants would have to comply with duties incumbent upon them by virtue of the Electricity Works (Environmental Impact Assessment)(Scotland) Regulations 2000. Those regulations did not impose a duty to mitigate on a developer. In any event they post-dated the enactment of the 1989 Act and could not have been in Parliament's contemplation at that time. The previous regulations - the Environmental Assessment (Scotland) Regulations 1988 - had not imposed a duty to mitigate on developers.

 

Counsel for the Respondents' submissions

[18] Mr Mure submitted that the construction of the 1989 Act which had been favoured by the Lord Ordinary in Petition for Judicial Review by Sustainable Shetland, supra, and which was adopted by the petitioners, was erroneous. Where a statute created a right, the right should not be restricted unless that was required by clear words. The 1989 Act did not restrict the category of persons who could apply for, or be granted, s36 consent or s37 consent. Neither of those sections, nor any other provision of the Act, contained such a restriction. Had Parliament so wished it would have been an easy matter to express such a restriction when the Act was enacted, or indeed on any of the several occasions since 1989 when the Act had been amended.

[19] Neither construction nor extension of generating stations were activities which were regulated by the licensing provisions of the 1989 Act. No licence or exemption was required in order to carry out those activities. The prohibition in s4 did not strike at them.

[20] S36 consent was required to construct, extend or operate a generating station. Anyone who wished to carry out any of those activities needed a s36 consent: but a s36 consent to construct and operate a generating station did not authorise the generation of electricity for the purpose of giving a supply to any premises or enabling a supply to be so given. To do that the person generating had to have a generation licence (s6) or an exemption (s5) from the prohibition on generating electricity without a licence (s4(1)). The consent regime (s36 and s37) and the licensing/exemption regime (s4 - s10) were separate. Under section D1 in head D of Sched 5 to the Scotland Act 1998 the following matters were reserved: "Generation, transmission, distribution and supply of electricity ..." By articles 2 to 5 of the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc) (No. 2) Order 2006 (SI 2006 No. 1040) the functions of the Secretary of State under inter alia sections 36 and 37 of, and para 7A of Sched 8 to, the Act so far as exercisable in or as regards Scotland were transferred so as to be exercisable by the respondents. The consent regime was accordingly a function of the Scottish Ministers. The licensing and exemption regime remained a reserved matter - a function of the Secretary of State for Energy and Climate Change and of GEMA (also known as OFGEM).

[21] Sched 9 of the 1989 Act imposed specific obligations on particular classes for certain specified purposes. Thus, for example, the duty to prepare and maintain a statement under para 4 of Sched 9 applied only to licence holders, and not to persons holding an exemption. It applied only after the grant of the licence and had no relation to any particular application under s36. There were generating stations that fell within the ambit of s36, but outwith the reach of para 3 of Sched 9 (eg generating stations situated in the territorial sea, wholly or mainly driven by water or wind, with a capacity of more than 1 MW  but less than 10 MW  (see the 2002 Order)). It was not suggested by the petitioners that in such cases s36 consent for construction, extension or operation of such stations could only be granted to licence holders or persons having the benefit of one of the specified exemptions. That undermined the petitioners' construction.

[22] On an ordinary reading of s36 and s37 those provisions did not restrict the categories of persons who may apply for or be granted consent. While para 3(1) of Sched 9 applied to relevant proposals by licence holders or certain exempt persons, para 3(2) applied to all relevant proposals for which consent under s36 or s37 was required. The terms of paras 3(1) and 3(2) did not provide, either expressly or by necessary implication, that an applicant for a consent under s36 or s37 must be a licence holder or have the benefit of one of the exemptions mentioned in Sched 9, para 3(1).

[23] Not all persons formulating relevant proposals to which para 3(2) applies were licence holders or had the benefit of the exemptions listed in para 3(1). If they were neither, they did not have the duties imposed by para 3(1). The Scottish Ministers' obligations under para 3(2) arose in relation to all relevant proposals for s36 or s37 consent. In terms of para 3(2)(a) they were obliged to have regard to the desirability of the matters mentioned in para 3(1)(a). In performing their duty under para 3(2)(b) the Scottish Ministers had to consider whether the specified duty did in fact apply in the case of the particular application for consent; for only where that duty applied were the Ministers obliged to have regard to the extent to which the person had complied with it.

[24] The 1989 Act had set down a new framework for the restructuring and privatisation of the industry, moving ownership to private investors and paving the way for the entry of new companies into the various elements of the industry. A key policy change was the gradual introduction of competition into the industry. This led to independent power generation projects, enforced divestment by public boards, competition in generation and supply, and new entrants coming into the various new markets created by the Act. Parliament's intention was clearly to open the industry to new entrants. It would be inconsistent with that intention for the Act to be construed as permitting construction of generating stations to be undertaken only by persons who had one or other of the licences referred to in section 6 or belonged to one of the four exempt categories referred to in para 3(1) of Sched 9. Such a construction would tend to create a monopoly for those persons. It would be obstructive to the development of new capacity.

[25] The respondents' construction fitted with the practice established since the Act came into force. Many consents for the construction of generating stations had been granted throughout the United Kingdom to persons not holding either a licence or a relevant exemption. Everyone concerned had proceeded on the basis that the Act permitted that.

[26] In Bloomsbury International Ltd v Sea Fish Industry Authority [2011] 1 WLR 1546 the Supreme Court considered arguments in support of a novel construction of a statutory provision that had been in force for nearly thirty years. In a short judgment agreeing with that of Lord Mance, Lord Phillips of Worth Matravers PSC observed that for nearly thirty years everyone concerned in the fishing industry and government had proceeded on the basis that the provision had a particular meaning. He went on to note:-

"58. In circumstances such as these there must be, at the very least, a powerful presumption that the meaning that has customarily been given to the phrase in issue is the correct one. Carnwath LJ expressed one reason for this in Isle of Anglesey County Council v Welsh Ministers [2010] QB 163, para 43:-

 

'Where an Act has been interpreted in a particular way without dissent over a long period, those interested should be able to continue to order their affairs on that basis without the risk of being upset by a novel approach.'

 

59. This has the air of pragmatism rather than principle, but courts are understandably reluctant to disturb a settled construction and the practice that has been based on that construction: see Bennion on Statutory Interpretation, 5^th ed. (2008), section 288, p. 913, and the authorities there cited."

 

[27] The respondents' construction did not give rise to absurdity. It was not unusual for duties to be imposed on specific categories of persons. That was the scheme seen in the Act. The previous legislation had contained provisions designed to preserve amenity (s37 of the Electricity Act 1957 and s5(1) of the Electricity (Scotland) Act 1979). It was notable that while prior to the 1989 Act some provision (s35 of the 1979 Act, and sections 2 and 3 of the Energy Act 1983) had been made enabling persons other than statutory boards and local authorities to construct, extend or operate certain generating stations, the duties in s37 of the 1957 Act and s5(1) of the 1979 Act had not been imposed on those other persons. Persons who were neither licence holders nor in the four listed exempt categories did not have the para 3(1) duties, but they would be dealt with in substantially the same way as those who had those duties. The Ministers would have to have regard to all relevant amenity issues (Sched 9, para 3(2)(a)). Where the applicant had not sought to mitigate, the relevant effects would be likely to be more pronounced. The Ministers would have to have regard to that. Equally importantly, the provisions of para 3 were very far from being the only relevant regulation of environmental matters. In Scotland the Environmental Assessment (Scotland) Regulations 1988 (SI 1221) had implemented Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment. (Those regulations had been amended the Electricity Act (Consequential Modifications of Subordinate Legislation) Order 1990 (SI 526) to take account of the 1989 Act. The provisions giving effect to the Directive in England and Wales in the context of electricity works were the Electricity and Pipe-line Works (Assessment of Environmental Effects) Regulations 1989 SI 167, re-enacted as the Electricity and Pipe-line Works (Assessment of Environmental Effects) Regulations 1990 SI 442 to take account of the 1989 Act). The 1988 Regulations provided that where a proposed electricity development was likely to have significant effects on the environment by virtue of, inter alia, its nature, size or location the Secretary of State could not grant consent unless he had taken into consideration environmental information in respect of the proposed development (reg. 35(1),(2)). The likelihood was that the applicant would be required to submit an Environmental Statement in respect of such an application. The Environmental Statement had to contain the data necessary to identify and assess the main effects which that development was likely to have on the environment (reg. 42(6) and Sched 3, para 2(b)); and a description of the likely significant effects, direct and indirect, on the environment of the proposed development (Sched 3, para 2(c)). Sched 3, para 2(d) provided that where significant adverse effects were identified the Environmental Statement also had to include a description of the measures envisaged in order to avoid, reduce or remedy those effects. The current regulations were the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2000 ("the 2000 Regulations"). They substantially remade the provisions of the 1988 Regulations, with the amendments necessary to implement Council Directive 97/11/EC. Reference was made in particular to regulations 2-4; and to Sched 4, Part I, paras 2 and 4, and Part II, paras 2, 3 and 4. At the time of the 1989 Act the reality was that substantially similar environmental constraints applied to generating station developments, whether or not the development was by a licence holder/person in one of the four specified exempt categories. That remained the position today. That was the context within which consideration required to be given to the petitioners' argument that it would be absurd construe the legislation in a way which permitted consent to be granted to applicants who did not have the duties set out in para 3(1).

 

Counsel for the interested party's submissions

[28] Mr Armstrong adopted Mr Mure's submissions. It was the generation of electricity for supply that was the licensable activity for which a licence or exemption must be obtained. The construction of a generating station was not a licensable activity. A consent under s36 could permit a person to construct, or extend, or operate a generating station, but it did not authorise him to generate electricity for the purpose of giving a supply to any premises or enabling a supply to be so given. In order to do that the person generating electricity had to be authorised by licence (s6) or be exempted from the relevant prohibition in s4(1). S36 and Sched 8 did not place any restriction on the persons who could apply for consent. That was unsurprising. In general, the consent regime for development in the United Kingdom proceeded on the basis that an application could be submitted by any person. In that regard the planning regime fell to be contrasted with licensing regimes. The aim of the 1989 Act had been to open up the market, not to restrict it. The construction of the relevant provisions of the 1989 Act contended for by the respondents and the interested party was more consistent with that aim than the petitioners' construction was.

[29] The forensic accounting report produced by the petitioners was nothing to the point. It had not been put before the respondents. It had no bearing on the proper construction of the statutory provisions. It examined trading periods during which consent was being applied for. With an entity set up for a single project it was hardly surprising that profits during such periods had been neither anticipated nor achieved.

Decision

[30] An application for consent under s36, and a grant of consent, can be for construction alone; or for extension alone; or for operation alone; or for construction and operation; or for extension and operation. That is clear on an ordinary reading of s36; and from the terms of the Electricity (Applications for Consent) Regulations 1990 (SI 455), reg. 11. That is part of the setting within which the relevant provisions of the Act fall to be construed.

[31] The 1989 Act contains two separate regimes - a consent regime and a licensing regime. A s36 consent is needed for a generating station to be constructed, extended or operated at a relevant place. A s36 consent to operate a generating station at a relevant place is a necessary, but not a sufficient, authorisation for the generation of electricity there for the purposes of giving a supply to any premises or enabling a supply to be so given. In order to generate electricity for those purposes a person requires to have a generation licence (s6) or an exemption (s5) from the prohibition on generating electricity without a licence (s4(1)).

[32] It is unremarkable that more than one type of regulatory authorisation may be required to perform a particular activity at a particular place. (One of the most familiar examples involves premises where alcohol is supplied). Each decision-making authority requires to exercise its powers within its sphere of competence with a view to achieving its relevant objectives. The controls under each regime should complement rather than duplicate each other (cf. Burnett Hall and Jones on Environmental Law (2^nd ed.), p. 459, note 92). The different decision-makers ought to be able to approach matters on the assumption that, if and when an application is made under the other regime, that regime's requirements will be properly applied and enforced

[33] If the 1989 Act had restricted the granting of s36 consent and s37 consent to limited categories of persons I would have expected the legislature to use clear words to make that plain. It would have been an easy matter to have done so when the legislation was enacted. Since then the Act has been amended on several occasions, but Parliament has not seen fit to make express provision restricting the persons to whom s36 and s37 consent may be granted.

[34] In my opinion, on an ordinary reading of the Act it contains no such restriction. The construction of generating stations is not an activity which is regulated by the licensing provisions of the 1989 Act. Neither is their extension. No licence (s6) or exemption (s5) is required in order to carry out those activities. The prohibition in s4 does not strike at them. S36 does not provide that only licence holders or persons authorised by an exemption to generate, distribute, supply or participate in the transmission of electricity may be granted consent to construct, extend or operate a generating station. S37 does not provide that only such persons may be granted consent to install an electric line above ground, or to it keep installed there. Para 3(1) of Sched 9 imposes certain duties on particular persons - licence holders and certain exemption holders. Those duties are not imposed on every person who formulates "relevant proposals". Para. 3(2) imposes certain duties on the Secretary of State (now the Scottish Ministers). The duties arise "In considering any relevant proposals for which his consent is required under section 36 or 37". On an ordinary reading of para 3(2) it extends to some "relevant proposals" not within the ambit of para 3(1), viz where the applicant is not a licence holder and does not have the benefit of one of the four exemptions mentioned in para 3(1). In such cases the Ministers will, of course, require (in terms of para 3(2)(a)) to have regard to the desirability of the matters mentioned in para 3(1)(a). However, applicants will have had neither of the duties set out in that subparagraph. Accordingly, in applying para 3(2)(b) in such cases the Ministers are not required to proceed on the basis that the applicant had the duty specified in para 3(1)(b): they should proceed on the basis that it did not. That seems to me to be the natural and sensible way to construe and apply the provision.

[35] By contrast, the construction for which the petitioners contend (viz that in every case an applicant making relevant proposals has to be a person who had the duty set out in para 3(1)(b)) is not the natural and sensible reading of the provision. Nor is it a construction which arises by necessary implication from a reading of the Act as a whole. The Act and regulations made under it contemplate and authorise consent being granted to persons who need not be licence holders or persons with the benefit of one of the four exemptions. I have observed already that on an ordinary reading of para 3(2) it is not restricted to the "relevant proposals" to which para 3(1) applies. It is also clear that where an application falls outwith the definition of "relevant proposals" there is no conceivable basis for contending that consent may only be granted to the persons mentioned in para 3(1). Thus, for example, consent for the construction, extension or operation of a generating station in the territorial sea with a capacity of more than 1 MW  but less than 10 MW  may be granted to any person (s36(2), para 1(3) of Sched 9, and art. 3 of the 2002 Order); as may consent for the operation of a generating station where the consent does not authorise it to be operated it in a different manner (Sched 9, para 1(3)); as may consent to keep an electric line installed above ground (Sched 9, para 1(3)). In each of these examples Sched 9, para 3 has no application (because the proposals for which consent is granted do not fall within the definition of "relevant proposals").

[36] So, on an ordinary reading of the Act persons other those mentioned in para 3(1) may be granted consent. That construction is consistent with the promotion of increased competition and the opening up of the market to new entrants - two of the Act's aims. It also accords with the settled construction and practice since the Act came into force - until the recent decision in Petition for Judicial Review by Sustainable Shetland, supra. Many consents for the construction of generating stations have been granted to persons not holding either a licence or an exemption. The Courts are understandably reluctant to disturb a settled construction and the practice that has been based on that construction: Bloomsbury International Ltd v Sea Fish Industry Authority, supra, per Lord Phillips of Worth Matravers PSC at paragraphs 58-59; Bennion on Statutory Interpretation, (5^th ed., 2008), section 288, p. 913, and the authorities there cited.

[37] The petitioners say s36 or s37 consent for "relevant proposals" may be granted only to a person (i) who had one of the six possible types of licence (s6 (1)) or (ii) who was authorised by one of the four relevant exemptions. On the face of things that might be thought to be rather an odd assortment of persons. The rationale suggested by the petitioners was ensuring that only suitable persons were granted consent.

[38] I am unimpressed by the argument that the respondents' construction of the Act would permit unsuitable persons to construct and operate generating stations. Ministers are entitled to refuse consent to an unsuitable applicant. In the event of consent being granted it

"may include such conditions (including conditions as to ownership or operation of the station) as appear ... appropriate"

 

(s36(5)): and, of course, in order to generate electricity for the purposes of giving a supply to any premises or enabling a supply to be so given a licence or exemption would be required. I am also unmoved by the petitioners' efforts to suggest to the Court, on the basis of material not placed before the Minister, that the financial standing of the interested party raises doubts as to its suitability to be granted consent. Suitability was a question for the Minister. It is not a question for the court.

[39] I reject the submission that the respondents' construction produces absurd results. Para 3(1) appears to me to be an example of specific duties being placed on particular persons (in this instance, licence holders and certain exempt persons). There is nothing strange in that. It is a legislative technique often seen. It is one which is employed in other provisions of the 1989 Act. The context is an Act which contains a licensing regime and a consent regime. The fact that specified duties in relation to the protection of amenity are placed on licence holders and certain exempt persons, but not on other persons formulating relevant proposals, does not strike me as being absurd. It is an approach which mirrors in some respects the position which applied prior to the 1989 Act. The Electricity Act 1979 and the Energy Act 1982 made some provision enabling generating stations to be constructed, extended or operated by persons other than electricity boards, but the amenity duties in s37 of the Electricity Act 1957 and s5(1) of the 1979 Act were not extended to apply to such persons.

[40] Where consent for development is sought by persons who are not licence holders or one of the specified categories of exempt persons, environmental impact, if it is significant, will inevitably be a material consideration for the Ministers. Where such an application involves "relevant proposals" the Ministers are obliged in terms of Sched 9, para 3(2)(a) to have regard to all the factors listed in para 3(1)(a). If an applicant has not availed himself of mitigation which was reasonably available then the detrimental impact of the development on the factors listed in para 3(1)(a) will be greater than if he had mitigated the impact. The degree of detriment to the matters listed, and the availability and reasonableness of possible mitigation measures, would be matters which the Ministers would be likely to take into account in deciding whether or not to grant consent.

[41] It is also important to remember that the provisions of para 3 are not the only provisions directed to protection of the environment which persons proposing to construct a generating station are likely to be subject to. That is the context within which consideration requires to be given to the petitioners' argument that it would be absurd to construe the legislation in a way which permitted consent to be granted to applicants who did not have para 3(1) duties. In my opinion, viewed against that backdrop, the weakness of the argument is all too apparent.

[42] The legislature must be taken to have been well aware at the time of enactment of the 1989 Act that there was an array of legislative constraints designed to secure that appropriate consideration was given to the protection of the environment when a significant development was proposed. Among those constraints was the legislation in Scotland implementing Council Directive 85/337/EEC, the Environmental Assessment (Scotland) Regulations 1988 (amended at the time the 1989 Act came into force by the Electricity Act (Consequential Modifications of Subordinate Legislation) Order 1990); and, in England and Wales, the Electricity and Pipe-line Works (Assessment of Environmental Effects) Regulations 1989 (re-enacted as the Electricity and Pipe-line Works (Assessment of Environmental Effects) Regulations 1990 to take account of the 1989 Act). In the case of any proposed electricity development likely to have significant effects on the environment an Environmental Statement had to be submitted containing the data necessary to identify and assess the main effects which the development was likely to have on the environment. Consent could not be granted unless that information was taken into consideration (1988 Regulations, reg. 35(1),(2)). Where significant adverse effects were identified the statement also had to include a description of the measures envisaged in order to avoid, reduce or remedy those effects (reg. 46 and Sched 3, para 2(d)).

[43] The statutory framework which was applicable did depend to some extent on whether or not applicants were licence holders/within the specified categories of exempt persons. However, whether or not a development fell within the scope of para 3(1), there was provision directed to securing that due consideration was given to the protection of the environment in any case where development was likely to have significant effects on it. In all such cases the 1988 Regulations applied: and where a development involved "relevant proposals" the Ministers had to perform their Sched 9, para 3(2)(a) duty. The practical effect was that substantially similar statutory regulation applied to all cases where development was likely to have significant effects on the environment.

[44] As for the present day, the current regulations are the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2000. Those regulations substantially remade the provisions of the 1988 Regulations, with amendments necessary to implement Council Directive 97/11/EC: see in particular regs 3 and 4; Sched 4, Part I, paragraph 4, and Part II, paragraphs 2 - 4. Thus, proposed developments continue to be subjected to very substantially similar regulation in respect of impact on the environment whether or not the applicant is among the categories described in Sched 9, para 3(1) of the 1989 Act.

[45] For the foregoing reasons I find myself in disagreement with the construction of the 1989 Act which was favoured the Lord Ordinary in Petition for Judicial Review by Sustainable Shetland, supra, and which is adopted by the petitioners. I respectfully decline to follow that construction. In my opinion the 1989 Act conferred power on the Ministers to grant s36 consent to the interested party.

[46] I do not overlook the fact that in the present case both the interested party and the Ministers - probably for pragmatic reasons - approached matters on the basis that the petitioners did indeed have the Sched 9, para 3(1) duties. That has no bearing on the present issue: the correct construction of the statute is a question of law. However, had I found in favour of the petitioners' construction, the way parties in fact approached matters would have been one of the factors I would have required to consider when deciding whether the Court should reduce the respondents' decisions. I shall return to that issue later.

 

Apparent bias

Counsel for the petitioners' submissions

[47] Mr Steele submitted that several factors, separately, or at least cumulatively, would raise in the mind of the fair-minded and informed observer a real possibility that the decision-maker was biased (Porter v Macgill [2002] 2 AC 357, per Lord Hope at 494H; Packard, Petitioner [2011] CSOH 93 at para 63; R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) [2000] 1 AC 119; R v Secretary of State for the Environment, ex parte Kirkstall Valley Campaign Ltd [1996] 3 All ER 304 at 326b-d; R(Condron) v National Assembly of Wales [2007] 2 P&CR 4, at para 43, R (Lewis) v Redcar & Cleveland Borough Council [2009] 1 WLR 83 at paras 62-63, 71, 94, 96 and 106-107; Helow v Secretary of State for the Home Department 2009 SC (HL) 1, [2008] 1 WLR 2416, per Lord Hope at paras 2-3; R (Gardner) v Harrogate BC & Atkinson [2008] EWHC 2942 Admin at para 23.

[48] The first factor founded upon was "the appearance of, and actual, financial involvement of the respondents in the project". The complaint was that, because the project had received certain assistance, directly and indirectly, from various sources of public funds (e.g. from Aberdeen City Council and the European Union), an appearance of bias arose. Those funds would have been "wasted" unless consent was granted.

[49] The second factor put forward was that the respondents had pre-existing policies which supported projects such as that proposed by the interested party.

[50] Next, there was a group of factors: the respondents' "extensive involvement in meetings and correspondence with the Applicant"; comments at a meeting held on 2 December 2009; and the removal of the minutes of that meeting from a public website.

[51] Mr Steele submitted that, looking at the extent to which the respondents and their officials involved themselves in meetings and correspondence with the interested party, the impression of the fair-minded and informed observer would be that the respondents were anxious that consent should be granted.

[53] A meeting of interested parties had been convened by Aberdeen City Council on 2 December 2009. The note of the meeting was 6/30. One contribution noted was "Explained that the Scottish Government was very keen for this project to go ahead in Aberdeen." It was not clear who had said that but two Scottish Government officials had been present. The clear message from the minutes was that time constraints did not permit exploration of alternative locations for the project. Delay would risk the loss of EU funding which was critical to the overall feasibility of the project. The fair-minded and informed observer would form the impression that the project was pushed forward by the respondents and that problems were being ignored.

[53] After the meeting minutes had been posted on Aberdeen City Council's website. Following a query from an official of the respondents who had attended the meeting the minutes had been removed. The fair-minded and informed observer would be likely to form the impression that the respondents' wished to ensure that the public were not apprised of concerns about the project which had been expressed at the meeting.

[54] The next group of factors concerned comments on, and support from Ministers for, the project; support for funding from the EU; a statement by the Minister in the Scottish Parliament; and remarks attributed to the First Minister.

[55] The interested party had written to the Minister for Enterprise, Energy and Tourism seeking his support for their funding application to the European Union European Energy Programme for Recovery. The Minister had responded in a letter (6/29) which had stated:

"... The existence of an Offshore Deployment Wind Centre based in Scotland would be welcomed by Scottish Ministers as (sic) would further enhance Scotland's capabilities as a leader in offshore wind development and support. It would be an asset of value not only to Scotland's growing offshore wind industry but also to the emerging UK and European markets.

 

The vision for this potential project fits within the remit of the EEPR and for (sic) a dedicated EU grant to accelerate development of the deployment centre which potentially can be of benefit to many organisations and partners across the EU ...

 

... The existence of a Deployment Centre would add to Scotland's unique offshore wind skills, experiences and infrastructure.

 

I am happy to offer a commitment by the Scottish Government to do what is necessary to ensure that any application proceeds quickly through the normal consenting process in recognition of the urgent deadlines required by EEPR Regulation. As you will appreciate Scottish Ministers cannot at this stage offer any view on the eventual determination of that application which will be subject to normal licensing procedures and the views of the statutory consultees."

 

[56] On 6 March 2013 in the Scottish Parliament Lewis Macdonald MSP asked the Minister:-

"Does Fergus Ewing acknowledge that it is because Aberdeen has the highest concentration of offshore energy expertise anywhere in Europe that the EU wants to invest in a wind energy deployment centre in Aberdeen bay? Does he agree that it is important to send out the right signals about the priority that Scotland gives to further development of offshore wind technologies?"

 

The Minister replied:-

"As Lewis Macdonald will be aware, Scottish Ministers must refrain from commenting on live applications: it would not be appropriate for me to make specific comment on any application that is before us. However, to answer the question in a general sense, it is absolutely correct that Aberdeen possesses expertise in oil and gas, some of which can be transferred to assist in developments in the offshore wind sector. That knowledge, together with knowledge from the fishing industry about how to operate in the cruel seas around Scotland's waters, is an essential ingredient for the success of the offshore industry. Lewis Macdonald's point is well made."

 

[57] The petitioners also founded upon a conversation the First Minister is said to have had with an unidentified person while having lunch in a tent at Castle Stuart during the Scottish Open in July 2012. The petitioners produced an undated affidavit from Keil Christianson (6/43), an associate professor of psychology at the Beckman Institute, Illinois, USA. Mr  Christianson was also a blogger who wrote "a travel golf blog". On 2 August 2012 he wrote and posted a blog discussing the Trump development. The blog stated:

" ... While I was covering the Aberdeen Asset Management Scottish Open, I had the honour and good fortune to have lunch with Mr Alex Salmond, the First Minister of Scotland. When asked whether the wind farm would be built the First Minister responded unequivocally, 'Absolutely'.

 

Unbidden, the First Minister continued to stress, in no uncertain terms, that he did not appreciate 'Mr Trump trying to dictate my energy policy.' "

 

In his affidavit Mr Christianson deponed:

"2. ... I can confirm that my blog accurately states my recollection of what was said by the First Minister, Alex Salmond.

 

3. I can confirm that I was covering the Aberdeen Asset Management (AAM) Scottish Open at Castle Stuart in July 2012 and was in the AAM tent enjoying an amazing lunch when I and another writer were introduced to the First Minister ... I was preoccupied with a mouth-watering cheese plate, and sat down right next to Mr Salmond to dig in. I heard my colleague ask about whether the wind farm off the coast, near the Trump golf course would ever be built. I wasn't taking notes, but I recall him saying, 'Absolutely' and then the bit about not having 'my energy policy' dictated by 'Mr Trump'. This is when I came out of my cheese reverie and realized, sort of, who he was. At that point I took off my hat and took out my notebook. I didn't write that part down, and there were a few more things said on that topic that I didn't write down and also don't recall, honestly. I only reported that part I recalled distinctly. I ... also recall a few comments on other topics that were 'off the record', a disclaimer that was not made prior to the comments reported in my blog ..."

 

The petitioners maintained that this was a public statement made to the press at a public event; and that it would raise in the mind of the fair-minded and informed observer a real possibility that the Scottish Ministers as decision-makers were biased.

[58] The next factor was the decision not to hold a public inquiry. It was submitted that in the whole circumstances that decision would raise in the mind of the fair-minded and informed observer a real possibility that the decision-maker was biased.

[59] The next group of factors was that site visits were made with representatives of the interested party without notifying the petitioners and other objectors; that officials had "failed" to undertake a site visit to the Trump development; and that they had refused to meet the petitioners.

[60] The first such visit had been by officials. The Minister himself had also attended the second site visit. It was not suggested that every objector ought to have been invited to attend the site visit, but it had been inappropriate that only the interested party had been there. Both site visits were said to have been conducted contrary to the respondents' own guidance, viz DPEA's

"Code of Practice for Handling Inquiries under section 62 and the Schedule 8 to the Electricity Act 1989"

 

and DPEA's Guidance Note 6 on Site Inspections (GN6 of April 2011 (6/44) and May 2013 (7/47)). Officials had "failed" to undertake a site visit to the Trump development. Given the site visits which had taken place, and the importance to the economy of the Trump development, and that the petitioners were the main objectors, such a site visit ought to have taken place. When the petitioners had asked if it would be possible to have a meeting with officials to expand upon their representations they had been advised that would not be possible.

[61] The final factor relied upon in this context was that the decision letter had been issued within 24 hours of the draft decision being submitted to the Minister. This was unusually swift, as comparison with turnaround times in the table 6/17 showed.

 

Counsel for the Respondents' submissions

[62] The respondents submitted that the fair-minded and informed observer, having considered all relevant facts, would not conclude that there was a real possibility that the decision-maker was biased.

 

Financial involvement
[63] It was wrong to suggest that the decision-maker had the appearance of, or any actual, financial involvement in the outcome in the project. The interested party received public funds at various times from a number of different sources - Scottish European Green Energy Centre ("SEGEC"), Scottish Enterprise and AREG. In July 2009 Scottish Enterprise offered a financial contribution of £50,000 to SEGEC to assist with co-ordination and facilitation of the application for European Funding in relation to the proposed Offshore Wind Test Centre. In November 2009, Scottish Enterprise offered to the interested party a financial contribution of up to £160,000 to assist with

"the delivery of detailed multi-stream development required to be progressed in respect of the European Offshore Wind Deployment Centre in advance of the decision on EU funding".

 

Each offer was accepted, and funds were disbursed. Some funds may have been made available to AREG by Aberdeen City Council from the Energising Aberdeen Fund which the respondents had made available from the Cities Growth Fund. The fund was to be used by Aberdeen City Council to stimulate Aberdeen's economy. Scottish Enterprise offered AREG a grant of up to £15,000 in November 2007 as a 50% contribution to a feasibility study for an offshore wind test centre. £12,400 was in fact drawn down. The provision of such financial support for development proposals was an important and normal part of Scottish Enterprise's function of supporting development in Scotland. Decisions on such matters are taken by Scottish Enterprise staff. There was nothing extraordinary about the interested party obtaining the public funds which it did. The petitioners' averments disclosed no financial interest of any type, whether of the decision-maker himself or of the Scottish Government, which would raise in the mind of a fair-minded and informed observer, apprised of the relevant facts, a real possibility of bias.

 

Apparent pre-existing policy support
[64] A policy pre-disposition was wholly normal and unobjectionable. It was not to be conflated with predetermination or a closed mind: R (Alconbury Ltd) v Environment Secretary [2003] 2 AC 295, per Lord Hoffman at para 123; R (Lewis) v Redcar & Cleveland B.C. [2009] 1 WLR 83, per Pill LJ at paras 45 - 49; R(Condron) v National Assembly of Wales, supra, per Richards LJ at para 43; Murphy v Lord Chancellor [2009] NI 167, paras 30-52. The fair-minded and informed observer would be well aware of the constitutional role played by Ministers in the planning system in Scotland.

 

Involvement in meetings and correspondence with the applicant; comments
at the meeting of 2 December 2009; removal of minutes from a public
website

 

[65] In the area of complex development applications policy and guidance dictated that government should engage constructively with potential developers and applicants to facilitate the proper and timeous application of statutory processes, and co-ordinate the involvement of statutory and other consultees. It was perfectly normal for meetings to be held between government representatives, developers and statutory consultees. The aim was to ensure that applications were of good quality and robust, that genuine difficulties were addressed in good time, and that the final application was handled as promptly as possible.

[66] Officials had attended the meeting of 2 December 2009 as observers. They had made no contribution to it. The meeting had taken place under Chatham House rules. When minutes of the meeting had been posted on Aberdeen City Council's website one of the officials who had attended had queried whether this was appropriate given his understanding of the basis upon which parties had participated. It was apparent from the query that if the key players were content with publication the query should simply be ignored. However Aberdeen City Council had immediately realised that a "gross administrative mistake" had occurred.

 

Comments and support from Ministers; support for funding from the EU;
statement in the Scottish Parliament; remarks attributed to the First
Minister

 

[67] It was by no means unusual for letters of support like 6/29 to be provided by Ministers to developers seeking financial support from the EU and similar funding sources. The letter was consistent with Scottish Government policy supporting the development of offshore wind energy. The Minister made clear that the Scottish Ministers could not offer any view on the eventual determination of the application: it would be subject to normal licensing/ development procedures and the views of statutory consultees. The letter had been provided two years before the application for consent was lodged. It had been approved and issued on 14 July 2009, the day after the European Parliament and the EU Council made Regulation (EC) 663/2009 establishing a programme to aid economic recovery by granting Community financial assistance to projects in the field of energy - see 7/36. The regulation specified the proposed project as eligible for funding under the new programme: see item 2.2 in Part B of the annex to the regulation. Given the availability of funding under this new programme, and the stated policy of the Scottish Government, it would have been extraordinary had the Minister not been willing to express support for the proposal.

[68] The 2012 Scottish Open took place on 12-15 July 2012. Mr Christianson's blog was posted on 2 August 2012. His affidavit was signed on an unknown date - probably sometime in mid-2013. Mr Christianson was not the person to whom the First Minister was speaking. According to the affidavit Mr Christianson was focussed on the food in front of him - he was, he says, in a "cheese reverie". He did not make any note of the relevant matters at the time.

[69] It was not possible for the court at a first hearing to come to a view as to what was or was not said by the First Minister. However, the court could conclude that even if it had been said it would not cause the hypothetical observer to conclude that there was a real possibility of bias on the part of the decision-maker. The context was an informal conversation at a private lunch. The First Minister took no part in the consent process. The responsibility for determining the application fell within the portfolio of the Minister for Enterprise, Energy and Tourism, who took the decision complained of. The First Minister was aware of his own responsibility (as First Minister and as a constituency member) and of the responsibility of the decision-maker. He had taken formal advice from the Permanent Secretary in October 2011 (7/44 and 7/45). The report to that Minister dated 25 March 2013 was not copied to the First Minister (6/2, p4).

[70] There was no suggestion in the petition that the Minister who made the decision was aware of anything said by the First Minister at the private lunch in July 2012, or of the contents of Mr Christianson's blog posted in August 2012.

[71] As regards the statement made in the Scottish Parliament by the Minister, he had been careful to say that he could not give specific comment on any application before him; his remarks were general ones. The averments which the petitioners made about the report of those proceedings which appeared in the Press and Journal (6/45) were irrelevant. The fair-minded and informed observer, cognisant of the relevant facts, would not jump to conclusions.

[72] Reference was made to Tesco Stores Ltd v Highland Council 2011 SCLR 579 at paras 38-46 per Lord Malcolm; R (Condron) v National Assembly for Wales, supra; R v Sec. of State for the Home Dept ex p. Al Fayed [2001] Imm AR 134; London and Clydeside Estates v Sec of State for Scotland 1987 SLT 459; Franklin v Minister of Town and Country Planning [1948] AC 87; and Murphy v Lord Chancellor, supra, at para 40-51.

 

The decision not to hold a public inquiry
[73] The petitioners had made no specific averments as to why the decision not to hold a public inquiry supported an argument of apparent bias. If, as the respondents submit, the Minister had been entitled in the circumstances to decide not to hold a public inquiry, this factor could not assist the petitioners.

 

Site visits, and the failure to meet with the petitioners or visit their land
[74] The first site visit which the petitioners complain of was by officials of Marine Scotland ("MS") on 3 October 2012. The officials were accompanied by representatives from Vattenfall Wind Power Limited and AREG (the two partners in the interested party), LDA Design (being the interested party's landscape consultant), and Halcrow (who were appointed by the respondents to advise them on certain aspects of the Environmental Statement).

[75] The second site visit was by the Minister on 25 February 2013. He was accompanied by officials from MS, representatives from Scottish Natural Heritage ("SNH") and from Halcrow, as well as an official from his private office. The Minister did not meet the applicants, or any objectors or supporters, during his visit.

[76] Neither DPEA's "Code of Practice for Handling Inquiries under section 62 and the Schedule 8 to the Electricity Act 1989" nor DPEA's Guidance Note 6 on-site inspections was applicable to the site visits which were carried out. The DPEA Code of Practice (7/26) applied where an inquiry was held. That was evident from its title and from paragraph 1 of the code. DPEA Guidance Note 6 related only to cases progressed under the Town and Country Planning (Appeals) (Scotland) Regulations 2008, and not to applications under the 1989 Act. The version in force at the time of the events which were the subject matter of the petition was 7/47. The current version of the guidance note (6/44) likewise did not apply to applications under the 1989 Act. In each case the guidance applied to reporters carrying out their functions during a public inquiry, not to site visits or other procedures in cases where no public inquiry was being held. It was therefore incorrect to say, as the petitioners averred, that the respondents were acting contrary to their own guidance in the way in which they carried out the two site visits. There was no justification for the suggestion that the site visits were improper or that objectors such as the petitioners ought to have been given the opportunity to attend. A reporter appointed to carry out a public inquiry was acting in a quasi-judicial capacity. An official visiting a site was acting in an administrative capacity.

[77] The petitioners' agents had made a verbal request to officials for a meeting on 22 November 2012, but without specifying any particular subject matter. Officials declined the request as consultation with objectors was principally a matter for the interested party to deal with; and because officials were awaiting further information and submissions from the petitioners' agents, which they had been invited to provide. On about 6 February 2013 the petitioners had telephoned an official of the respondents. The discussion had been in regard to the progress of the application as the file note of the conversation (7/34) showed. There was no record of any request for a meeting having been made at that time. The petitioners had no entitlement to a meeting and it was perfectly reasonable of the officials to require that any representations be submitted in writing

[78] There were many objectors to - and many supporters of - the proposed development. The way in which objectors and supporters made their views known was by responding to the notice of the application during the consultation period. The petitioners had ample opportunity to state their objections.

[79] There was no need for the respondents to visit the petitioners' development. The Environmental Statement ("ES") contained photomontages showing viewpoints from various locations. The viewpoints had been agreed by the interested party in discussion with SNH, Aberdeen City Council and Aberdeenshire Council. Viewpoint 1, Balmedie Beach, was close to the petitioners' development. In the ES visual impact from there had been assessed at the highest level, viz. "major". The Supplementary Environmental Impact Statement ("SEIS") prepared included further photomontages to demonstrate the potential visual impact of the proposed development on golf courses in the area, including the golf course on the Menie Estate. Viewpoints 26, 27 and 28 in the SEIS showed, respectively, the potential views from the petitioners' proposed hotel site, the front nine holes of the golf course, and the back nine holes of the course. With the petitioners' objections they had submitted a photomontage bearing to show the adverse visual impact at a viewpoint adjacent to the 4th green (6/7, p77). At para 6 of the objections the petitioners stated that this photomontage "accurately shows the adverse visual impact of the wind farm on our development" (6/7, p3). The objections also stated that the impact shown in that photomontage was "not dissimilar to the impact shown to us by the Applicant from the hotel site...It is also not dissimilar to the impact shown in the ES on Balmedie Beach." (6/7, at para 25 on page 6). The petitioners' landscape expert did not suggest in either of his reports (6/8, pp31‑97) that the viewpoints prepared by the interested party were not representative of the impact on the petitioners' development. Nor had the petitioners' objections advised the respondents of any proposed layout for a second golf course on the petitioners' land.

[80] The wealth of information which the respondents had about visual impact was based on visualisations and also on having actually gone to the location. In light of the ample available information, and the fact that the visual impact from the site closest to the petitioners' development had been assessed at the highest level, viz. "major", there was no need for the respondents to visit the petitioners' development. In the whole circumstances the fact the respondents did not visit it would not raise in the mind of the fair-minded and informed observer the real possibility of bias.

 

The short period of time taken by the Minister to determine the application after receipt of the final Report

 

[81] The fair-minded and informed observer would be aware that it was part of the ministerial function to take decisions on complicated matters quickly. He would also be aware of the Minister's position. In Bushell v Environment Secretary [1981] AC 75 at page 95, Lord Diplock observed:-

"Discretion in making administrative decisions is conferred upon a Minister not as an individual but as the holder of an office in which he will have available to him in arriving at his decision the collective knowledge, experience and expertise of all those who serve the Crown in the department of which, for the time being, he is the political head. The collective knowledge, technical as well as factual, of the civil servants in the department and their collective expertise is to be treated as the Minister's own knowledge, his own expertise."

 

The Minister was not required or expected to go behind or re-visit work carried out by civil servants. The report to the Minister was the result of work over a period of more than 18 months since the application was lodged in August 2011. It was by no means uncommon for decisions in complex matters to be made by Ministers in a short time - indeed, the work of government demanded this.

[83] The fair-minded and informed observer would also be aware that the Minister had, in fact, been involved in the decision-making process prior to seeing the report dated 25 March 2013. On 15 November 2012, during a visit to the Marine Laboratory in Aberdeen, the Minister was provided with information on the application. He was shown the Environmental Statement and photomontages. The Minister paid a visit to the site on 25 February 2013. He went to each viewpoint and examined the relevant photomontages there. He was briefed by his officials and experts before and after the visit.

[84] The table (6/17) did not compare like with like. Some entries related to cases where a public local inquiry had taken place: it gave the date of the reporter's report, not the date of its submission to the Minister. Once a reporter's report had been prepared it was considered by civil servants. In due course a submission to Ministers with a recommendation was prepared. Some entries in the table concerned applications where the local authority had not objected to the proposal, but had made recommendations. The table gave the date of such recommendations, not the date of submission to the Minister. In such cases, civil servants considered the recommendations and prepared a submission and recommendations for the Minister.

 

Counsel for the interested party's submissions

[85] Mr Armstrong adopted Mr Mure's submissions. The petitioners had raised no issue of bias in correspondence with the respondents or the interested party during the application process. The interested party had been open and transparent as to where its funding had come from. It had been a matter of public record.

[86] The respondents' meetings and correspondence with the interested party had been appropriate in the context of a complex project. In complex development applications, such as this application, it was normal for meetings to be held between government representatives, developers and statutory consultees. One of the roles of Marine Scotland was to facilitate the making of applications, and to co-ordinate the involvement of statutory and other consultees. Discussions often led to objections being withdrawn, as had been the case here. It was fallacious to suggest that the respondents ought at all times to remain at arm's length from an applicant and objectors. The scheme of the Act was for the respondents to have a role in facilitating and focussing applications (eg in relation to pre-screening consultation, scoping opinions etc). The formal site visit by the Minister, as part of the application process, took place on 25 February 2013. No-one from the interested party was represented at that formal site inspection.

[87] The application had been submitted on 3 August 2011. The Addendum had been submitted on 6 August 2012. The statutory period for consultation and lodging of objections ended on 20 September 2012. Nonetheless, the respondents had accepted late objections (6/8) from the petitioners on 24 September 2012. Thereafter they accepted further objections from the petitioners in October 2012 (6/9) and on 29 January 2013 (6/13).

[88] The Minister had been involved with, and was very familiar with, the application prior to his receipt of the report on 25 March 2013. He had undertaken the site visit to various locations on 25 February 2013. Before that visit he had been briefed on the substance of the application and the objections to it. Following that visit, he had met and consulted with technical advisers and other civil servants.

 

Decision

[89] I am not persuaded that any of the factors relied upon by the petitioners, individually or cumulatively, would raise in the mind of the fair-minded and informed observer a real possibility of bias on the part of the decision-maker. I find myself in very substantial agreement with almost all of the submissions of the respondents and the interested party.

 

Financial involvement
[90] It is clear on the material before me that neither the Scottish Government nor the decision-maker had any actual financial stake in the outcome of the project. Public funds were made available directly and indirectly to the interested party from various agencies. Neither the decision-maker nor the Scottish Government were responsible for deciding whether the relevant funds should be advanced to the applicant. Nothing in any of the material suggests other than that decisions by such agencies to make funding available were lawfully, properly and appropriately made. The fair-minded and informed observer, apprised of all the relevant facts, would not conclude there was a real possibility that the Minister was biased.

 

Apparent pre-existing policy support
[91] The petitioners' submissions on this matter appear to me to be wholly without merit. The fact that Scottish Government policy is supportive of development of offshore wind energy would not raise in the mind of the fair-minded and informed observer a real possibility that the Minister was biased. On the contrary, mindful of the proper constitutional position, he would have no reason to apprehend that the Minister would not perform his statutory duties lawfully and conscientiously.

 

The decision not to hold a public inquiry

 

[92] I agree with counsel for the respondents and the interested party that the petitioners have not made relevant and specific averments as to why, per se, the decision not to hold a public enquiry would raise in the mind of the fair-minded and informed observer a real possibility of bias on the part of the Minister. In my opinion there is an absence of objective justification for any such apprehension. Different considerations may have arisen if the decision not to hold an inquiry had been unlawful: but, for the reasons set out below, in my opinion it was lawful.

 

Involvement in meetings and correspondence with the applicant; comments
at the meeting of 2 December 2009; removal of minutes from a public
website

 

[93] I am not persuaded that the fair-minded informed observer would see anything untoward in any of these matters. 

[94] On the material before me I do not think that the respondents' officials' involvement in meetings and correspondence was in any way problematic. What they did was unremarkable given the role they had, the complexity of the issues raised by the proposed development, and their duty to engage constructively with potential developers (to facilitate the proper and timeous application of statutory processes and co-ordinate the involvement of statutory and other consultees).

[95] The meeting of 2 December 2009 had been called by Aberdeen City Council. It took place some twenty months before the s36 application was submitted. It proceeded on the basis that Chatham House rules applied. Two of the respondents' officials attended, but only in an observer capacity. They did not contribute to the discussion. It seems plain that part of the thinking behind having the meeting was to explore ways forward for the proposed development, and potential obstacles, with statutory consultees and others Those attending were also reminded of the time constraints associated with EU funding. Shortly after the meeting the minutes had been posted inadvertently on the Council's website. One of the officials who had attended noticed this and, conscious that those participating had intended Chatham House rules to apply, queried whether the key participants were content that the minutes were published.

[96] The petitioners contend that the officials' involvement in the meeting would suggest to the fair-minded and informed observer that they were already intent that the development would proceed whatever the difficulties. They submit that the observer might discern a sinister motive in the official reminding the council of the basis on which the meeting had been conducted. Having regard to the context and the whole circumstances there appears to me to be no objective justification for such a view.

 

Comments and support from Ministers; support for funding from the
EU; statement in the Scottish Parliament; remarks attributed to the
First Minister

 

[97] It was not disputed that it is not unusual for letters of support like 6/29 to be provided by Ministers to developers seeking financial support from the EU and similar funding sources; and that the letter was consistent with Scottish Government policy supporting the development of offshore wind energy. It made clear that the Scottish Ministers could not offer any view on the eventual determination of the application which would be subject to normal licensing/development procedures and the views of statutory consultees. In the circumstances, given the availability of funding for the project under the EU programme, and the stated policy of the Scottish Government, I agree that it would have been extraordinary had the Minister not been willing to express support in principle for the proposal for the purposes of assisting the interested party's application for funding. The provision of the letter does not in the circumstances provide objective justification for apprehension of a real possibility of bias.

[98] On a fair reading of the Minister's statement in the Scottish Parliament it would not cause the hypothetical observer to consider there was a real possibility of bias. The Minister was careful to say that he could not give specific comment on any application before him; his remarks were general ones. I do not accept that the slant the Press and Journal article placed on the statement provides any reliable indication of the hypothetical observer's likely conclusions. Such an observer would draw reasonable inferences from established facts: but he would not speculate; or give the facts a slant; or be inclined to look for an angle to improve the news interest of a story.

[99] It is clear from the parties' submissions that issues as to the reliability of Mr Christianson's recollection might well arise were it to be necessary to determine as a matter of fact, at a second hearing, what the First Minister said. It is equally clear that it is not possible for me at this time to come to any view as to what was or was not said by the First Minister.

[100] On the other hand, on the basis of the material placed before the court at the first hearing I am satisfied that, whatever was said, it was said at an informal lunch in a hospitality tent. Context is important (Helow v Secretary of State for the Home Department, per Lord Hope at paras 3-4). The context was a social and sporting event, not a public speech or an interview. The petitioners do not aver (i) that either the First Minister or the person to whom he spoke intended that what the First Minister said would be made public, or (ii) that the person with whom the First Minister spoke did publish what was said. A further relevant factor is that some months previously the First Minister, conscious of the possibility that he might be asked for his views on the proposed development, had taken appropriate advice from the Permanent Secretary (7/44 and 7/45). The hypothetical observer would be likely to obtain some reassurance from that that the First Minister was acutely aware of the respective responsibilities of both himself and the decision-maker; and that he was anxious that these be properly observed. A critical consideration for the hypothetical observer would be that responsibility for determining the application fell within the portfolio of the Minister for Enterprise, Energy and Tourism. The report to that Minister of 25 March 2013 was not copied to the First Minister. There is no suggestion in the petition that the decision-maker was aware of anything said by the First Minister at the lunch in July 2012, or of the contents of Mr Christianson's blog. The hypothetical observer would appreciate who the decision-maker was. He would be aware of the whole facts, including the context I have described; and the absence of any allegation that what was said was communicated to the decision-maker, or that it was the First Minister's intention that it should become public, or that the decision-maker should otherwise be made aware of it. In my opinion, properly considered in their context, the relevant circumstances would not raise in the hypothetical observer's mind the real possibility of bias on the part of the decision-maker.

 

Site visits, and the failure to meet with the petitioners or visit their land
[101] I approach matters on the basis that the site visit of 2 October 2012 was by officials accompanied by representatives of the interested party; but that the site visit of 25 February 2013 was by the Minister, accompanied only by his officials and advisers.

[102] I agree with counsel for the respondents that neither the DPEA

"Code of Practice for Handling Inquiries under section 62 and the Schedule 8 to the Electricity Act 1989" nor the DPEA Guidance Note 6 on-site inspections were applicable to the site visits. The DPEA Code of Practice makes provision for site visits by a reporter in the course of an inquiry. DPEA Guidance Note 6 also relates to reporters carrying out their functions during a public inquiry in cases progressed under the Town and Country Planning (Appeals) (Scotland) Regulations 2008. It does not apply to applications under the 1989 Act. The contention that the site visits gave rise to breaches of that guidance is accordingly ill-founded. A reporter charged to preside over a public inquiry acts in a quasi-judicial capacity, whereas a departmental official who gathers information for the Minister acts in an administrative capacity. In my opinion the petitioners have failed to set out any relevant averments in support of their claims that the circumstances of the site visits were in any way improper or unlawful; or that they ought to have been afforded the opportunity to attend them. In my view the whole circumstances of the site visits do not provide objective justification which would cause the hypothetical observer to conclude that there was a real possibility of bias.

[103] The respondents' officials gave the petitioners very considerable latitude in relation to the making of submissions. The petitioners do not aver that they were entitled as of right to a meeting to expand upon their written representations; or that any refusal to accede to a request for one was irrational or otherwise unlawful. Whether or not a request for a meeting was in fact made on about 6 February 2013 (a matter on which Mr Sutherland's contemporaneous note and Ms Faulds' affidavit appear to differ) I agree with the respondents that there was no obligation on their part to grant it. It is plain from the correspondence that the petitioners had been invited on a number of occasions to submit any written representations they wished the Minister and his officials to consider. If there was anything else they wished the Minister to have before him they had ample opportunity to submit it in writing.

[104] I am also satisfied that there was no need for the respondents to visit the Trump development. No such request for a site visit was made. In any event the respondents had ample information enabling them to assess the likely visual impact of the windfarm on that development. In addition to all the written materials, the Minister had had the benefit of visiting viewpoints and considering the views from them with the aid of the photomontages. In the circumstances of this case, and having regard to the material the Minister and his officials had and the terms of the petitioners' objections, no significant benefit was likely to be obtained from making such a site visit.

 

The short period of time taken by the Minister to determine the application after receipt of the final Report

 

[105] The respondents' criticisms of the table 6/17 appear to me to be well made. It does not record the dates of submission by officials of draft decision letters to the decision-makers.

[106] In any case, the fair-minded and informed observer would be aware of the constitutional position of Ministers and the structure within which administrative decisions are made. He would be mindful that Ministers are briefed by officials in their department, and that they rely on the available collective knowledge, experience and expertise of the officials (Bushell v Environment Secretary, supra, per Lord Diplock at page 95). He would be aware of policies relevant to the decision being taken. He would be conscious that it is by no means uncommon for decisions in complex matters to be made by Ministers quickly: and that, indeed, often the work of government demands this. He would be aware of the practice of papers being sent to Ministers in a ministerial bag or box with the expectation that they are dealt with overnight: only an observer who had never read any biographies of former Ministers could be unaware of that.

[107] Here, the papers were dealt with within 24 hours. The Minister agreed with the recommendations of his officials. The receipt by him of the papers and the draft decision letter was very far from being his introduction to the application and the objections. Prior to that date he had been made familiar with the issues. He had undertaken the site visit on 25 February 2013. Before that visit he had been briefed on the substance of the application and the objections to it. Following that visit, he had met and consulted with technical advisers and other civil servants.

[108] In the whole circumstances I have little difficulty in concluding that the short period between the draft decision letter being submitted to the Minister and his decision would not raise in the mind of the fair-minded and informed observer the real possibility that the Minister was biased.

 

Cumulative effect?
[109] The petitioners argued that even if individually the matters complained of would not raise a real possibility of bias, taken together they would. I disagree. Individually most of the matters complained of are very weak. The least weak is probably the complaint about the First Minister's remarks: but in my opinion even that falls well short of the required threshold. So does the combined effect of the matters complained of. In my opinion this is not a case where the whole is greater than the sum of the parts.

 

The decision not to hold a public inquiry

Counsel for the petitioners' submissions

[110] The petitioners aver (Stat. 24) that the Minister's decision not to hold a public inquiry was irrational, contrary to the petitioners' ECHR rights under art 6 and art 1 protocol 1 ("A1P1"), and contrary to "the petitioners' legitimate expectations and the requirements of natural justice at common law".

[111] In oral submissions Mr Steele did not seek to lay out any basis for a legitimate expectation argument. His argument centred on submissions that the decision not to hold a public inquiry was irrational and in breach of art. 6.

[112] The petitioners' main submission on this chapter was to the following effect. Para 3(2) of Sched 8 to the 1989 Act had obliged the respondents

"to consider the objections, together with all other material considerations, with a view to determining whether a public inquiry should be held with respect to the application".

 

It was said to be plain from the terms of the decision letter that the respondents had not had regard to all material considerations. The following matters had been left out of account: (i) that the respondents appeared to have a financial interest in the application; (ii) that Aberdeenshire Council and Aberdeen City Council appeared to have a financial interest in the application as members of AREG, the 25% owner of the applicant, and as providers of funds; (iii) that the respondents' own policies supported the application; (iv) that the holding of a public inquiry would provide a procedural safeguard against the appearance of bias in the decision-taking process; (v) that the respondents had previously found that

"the economic and social advantages of the [Trump] development at national, regional and local level are such as to justify, uniquely, the adverse environmental consequences caused by it ...";

 

(vi) that there was a factual dispute between expert witnesses about the predicted impact of the application; (vii) the (large) number of representations made and level of public interest in the application; (viii) that the petitioners had submitted that they had a legitimate expectation that a public inquiry would be held; (ix) that the petitioners had submitted that it would be contrary to the requirements of the ECHR not to hold a public inquiry. The omission to consider these material considerations rendered unlawful the decision not to hold a public inquiry (Bolton Metropolitan Borough Council v Secretary of State for the Environment (1991) 61 P. & C.R. 343, at page 352).

[113] Subsidiary submissions (stat. 18 and 20) were to the effect that the Minister had also taken into account an irrelevant consideration, namely that neither Aberdeenshire Council nor Aberdeen City Council objected to the application; that he had wrongly dismissed the effect on the petitioners' development as being simply a private interest; and that it was irrational for him to have concluded that what would actually happen to the Menie Estate Golf and Resort complex were the interested party's proposed development to be given consent was "not amenable to answer at a public inquiry". They also submitted that he erred in deciding not to have an inquiry in circumstances where there had been a site visit accompanied by the interested party and no site visit to the petitioners' development; and that the reasons given for the decision not to have a public inquiry were inadequate.

 

Counsel for the Respondents' submissions

[114] The Minister was not obliged to hold a public inquiry. He had a wide discretion as to whether to hold one or not. The question for a court on judicial review was whether in declining to cause a public inquiry to be held the Minister was acting lawfully within the powers conferred upon him by Parliament: see R v Environment Secretary, ex parte Greenpeace Ltd [1994] 4 All ER 352, per Potts J at paras 92 and 105. Where, as under the present Act, there was a wide discretion, the test in law was one of Wednesbury unreasonableness (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). The discretion had been lawfully exercised.

[115] The Minister took account of all matters raised in the objections and the other material considerations. It was not incumbent upon him to list in the decision letter every material consideration which was raised in the objections. It was for the him to decide which considerations were material, subject only to Wednesbury review: Axa General Insurance Company Ltd v Lord Advocate 2012 SC (UKSC)122, [2012] 1 AC 868, per Lord Reed at para 143; In re Findlay [1985] AC 318, per Lord Scarman at pages 333-334; R (Adlard) v Environment Secretary [2002] 1 WLR 2515, per Simon Brown LJ at para 41; R (Khatun) v Newham LBC [2005] QB 37, per Laws LJ at para 35; Derbyshire Dales D.C. v Secretary of State [2010] 1 P&CR 19, at paras 17, 20-28.

[116] In all of the circumstances none of the matters (i) - (ix) relied on by the petitioners required to be identified by the Minister as material considerations. Not all of these matters were raised in the petitioners' objections. Where they were, they were duly considered. In relation to (i) and (ii), neither the respondents nor the councils had any financial interest of the type regarded by law as giving rise to an issue of apparent bias. In relation to (iii) the fact that the respondents' policies supported applications of the type made was of no particular materiality to the decision whether a public inquiry was appropriate. So far as (iv) was concerned there was no need to provide a "procedural safeguard against the appearance of bias"; as discussed above, none of the factors the petitioners suggested gave rise to an appearance of bias did in fact do so. As for (v), the Minister was aware of, and considered, the advantages the Trump development could provide. In relation to (vi) there had in fact been broad agreement on the methodology and approach, and that there would be significant visual impact. SNH did not raise any final objection to the proposal or the methodology. While there were some matters of fact where there was disagreement, the principal differences were as to matters of weight and judgement. The Minister was not obliged to specify each of them or to label them as material considerations. The Minister was fully informed about the visual impacts and was able to make the necessary planning and policy judgements. This was not a case where evidence of those, or any other, matters required to be presented orally. In relation to (vii), the number of representations and the level of public interest were not in themselves material considerations. As regards (viii), the mere fact that the petitioners claimed to have asserted a legitimate expectation did not make that a material consideration (and no relevant basis for such a legitimate expectation having been established had been put forward). Item (ix) was raised in the objections and was considered by the Minister. It was not incumbent upon the Minister to list it among the material considerations. In any event, for the reasons advanced below, the ECHR point was unsound.

[117] In identifying in the decision letter the matters to be considered along with the objections, the Minister had not acted unreasonably. So far as the remaining submissions were concerned, it was erroneous to suggest that in having regard to the fact that the councils maintained no objections the Minister had taken account of an irrelevant consideration. They were the closest democratic bodies to the site of the development, and they had submitted representations. Their final positions on the application were not irrelevant. The petitioners' private financial interests were not a material consideration. The relevant consideration was whether the proposal would unacceptably affect the amenity and existing use of land which ought to be protected in the public interest. The Minister reasonably considered that he was sufficiently informed to reach a planning judgement on whether there was any incompatibility in terms of land use between a golf development and the proposed wind farm. He was entitled to accept the petitioners' claim that they would not build out their development but would sell the investment on. The task of deciding whether the impact of the wind farm was so serious that consent ought to be refused was a planning judgement for the Minister. A public inquiry was not a proper forum for the speculative consideration of what might in the future happen to a development which had planning permission, but which the existing owner had decided to sell off in the event that another development was built. It was reasonable for the Minister to conclude that the task of weighing up the relative public and other interests would not have been materially assisted by a public inquiry of the type sought by the petitioners. Neither the fact that the site visits already described had been carried out, nor the fact that there was no site visit to the petitioners' development, made it necessary to have a public inquiry. The petition contained no challenge to the adequacy of the Minister's statement of his reasons: in any event the reasons were intelligible and adequate (South Bucks D C v Porter (No 2) [2004] 1 WLR 1953, at para 36; Moray Council v Scottish Ministers 2006 SC 691). The petitioners had fully engaged as objectors in the application process, and had been well aware of both the context and the details of the case: see R (Redcar and Cleveland Borough Council) v The Secretary of State for Business, Enterprise and Regulatory Reform, supra, per Sullivan J at para 34. This was not a case where it was essential that particular evidence was given orally (R (Little) v Secretary of State for Trade and Industry [2002] EWHC 3001 (Admin) and R (Redcar and Cleveland BC) v Secretary of State for Business, Enterprise and Regulatory Reform, supra).

 

Counsel for the interested party's submissions

[118] Mr Armstrong adopted Mr Mure's submissions. The Minister had applied his mind genuinely and rationally to the issue of whether or not to hold a public inquiry. It was worth noting that items (i) to (iv) were not matters which had been raised by the petitioners in the objections.

 

Decision

[119] The Minister had a wide discretion as to whether to hold a public inquiry. The petitioners require to demonstrate that the decision not to hold a public inquiry was Wednesbury unreasonable. In my opinion the petitioners have failed to do that.

[120] I am satisfied from the terms of the decision letter that the Minister had regard to all the matters which were raised in the petitioners' objections. It was for him to decide which matters - whether or not raised in the objections - were material considerations. He listed the material considerations at page 13 of the decision letter.

[121] In my opinion, in the circumstances of this case, it is unlikely that items (i), (ii), (iii), (iv), (vii), (viii) and (ix) would even have been "on the radar" of a reasonable Minister, far less have been candidates for identification as material considerations. Neither the respondents nor the councils had any financial interest of the type regarded by law as giving rise to an issue of apparent bias. The fact that the respondents' policies supported applications of the type made was of no particular materiality to the decision whether a public inquiry was appropriate. There was no special need to provide a "procedural safeguard against the appearance of bias". The number of representations and the level of public interest were not in themselves material considerations (cf. R (Little) v Secretary of State for Trade and Industry, supra, para 26). Any claim that the petitioners made that they had a legitimate expectation to a public inquiry was no more than bald assertion; no attempt was made to set out the necessary legal and factual basis for it. The claim that ECHR considerations required that there be a public inquiry was clearly ill-founded.

[122] What then of (v)?

"that the respondents had previously found that the economic and social advantages of the [Trump] development at national, regional and local level are such as to justify, uniquely, the adverse environmental consequences caused by It ..."

 

It is very hard to see why a material consideration ought to have been formulated in those terms. For present purposes what was relevant was that the Trump development could result in economic and social advantages at national, regional and local level: the balance between those advantages and adverse environmental consequences caused by the Trump development was not germane to the s36 application. But was the Minister obliged to identify and list the advantages as a specific material consideration? In my opinion he was not constrained to approach, or articulate, matters in that particular way.

[123] Among the material considerations listed at page 13 of the decision letter were "the impacts on the tourism industry both in Aberdeenshire and in Scotland"; "the impacts on recreation in Aberdeenshire" and "the economic impact on the golf resort at the Menie Estate". In my opinion, encompassed within those relevant impacts was the affect, if any, of the proposed development on the economic and social advantages which the "building out" of the Trump development was expected to provide.

[124] In my view the Minister was entitled to identify the relevant material considerations in the way he did. It was not incumbent upon him to further subdivide them. It was for him, not the petitioners, to decide on which side of the scales each relevant factor should be placed, and the weight which should be given to it. It was for him to judge where the balance should be struck. It cannot be said that the way he chose to approach matters was Wednesbury unreasonable.

[125] That leaves (vi):

"that there was a factual dispute between expert witnesses about the predicted impact of the application"

 

In my opinion it was open to the Minister to conclude that in light of the limited nature of the factual dispute between the experts this was not a material consideration. There was broad agreement on the correct methodology and approach, and that there would be significant visual impact. He was entitled to proceed on the basis that it he had sufficient information on the potential visual impact to form a view: and that it was unnecessary to hold a public inquiry to investigate it further.

[126] In my view it is incorrect to say that the position and the views of the councils were an irrelevant factor. They were the closest democratic bodies to the site of the development. They had submitted representations. On no view can it be said that the Minister was not entitled to have regard their final positions on the application.

[127] I turn next to the submission that the Minister wrongly dismissed the effect on the petitioners' development as being simply a private interest. I do not consider that to be a fair reading of the decision letter. The Minister had regard to the potential benefits of the Trump development (see in particular page 17 of the decision letter). He went on to remind himself (page 18) that a more relevant consideration for him (than the effect on the petitioners' financial interests) was whether the proposal would unacceptably affect the amenity and existing use of land and buildings which ought to be protected in the public interest.

[128] The Minister's judgement that what would actually happen to the Trump development were the interested party's proposed development to be given consent was "not amenable to answer at a public inquiry" was attacked as being irrational. I think the attack is without substance. The context in which the Minister reached his conclusion was the petitioners' unequivocal position that they would not proceed with further development if the deployment centre was built. It was not unreasonable for the Minister to accept that at face value. Accordingly, it was not a factual dispute on a material matter which required resolution at inquiry. It is a reasonable inference from the terms of the decision letter that the Minister did not consider it would be appropriate, or of any material assistance to him, to have a public inquiry to explore the prospects of the Trump development being built out by another occupier. That was a view he was fully entitled to hold: he knew that when he came to deciding whether to grant consent he would have to weigh up competing policy and other considerations and exercise judgement as to where the balance should be struck. That is ultimately what he did (see, in particular, pages 24-25 of the decision letter).

[129] None of the remaining matters raised by the petitioners in this chapter of their case appear to me to be well founded. Neither the fact that the site visits already described had been carried out, nor the fact that there was no site visit to the petitioners' development, made it necessary for the Minister to hold a public inquiry. The petition contains no relevant challenge to the adequacy of the respondents' statement of their reasons: but in my opinion the reasons were intelligible and adequate (South Bucks D C v Porter (No 2), supra, at para 36; Moray Council v Scottish Ministers, supra).

 

ECHR
Counsel for the petitioners' submissions

[130] Mr Steele submitted that the grant of the interested party's application, involving as it had the rejection of the petitioners' objections, was a determination of the petitioners' civil rights and obligations. A broad approach as to what determination of civil rights and obligations involved ought to be taken. The petitioners' A1P1 and art 6 rights had been engaged. Each of those rights had been breached. In relation to A1P1, Mr Steele submitted that the grant of consent was an interference with the petitioners' peaceful enjoyment of their property. The respondents required to justify the interference as being proportionate. A public inquiry would have enabled the petitioners' interests to be weighed in the balance. The petitioners' right to a fair and public hearing by an independent and impartial tribunal had been infringed by the decision not to have a public inquiry. The Minister was not an independent and impartial tribunal. The decision in Alconbury had relied on the existence of an independent inspector to evaluate the evidence and act as the primary fact-finder, and the procedural safeguards attendant to an inquiry. In the present case there had been no public inquiry, no opportunity for the petitioners or other objectors to cross-examine, and no formal procedure for evaluating the evidence and making findings of fact. In the circumstances the opportunity to seek judicial review was not sufficient to ensure compliance with art 6. I was taken to County Properties Ltd v Scottish Ministers 2002 SC 79, at para 26, and to Alconbury. I was referred (but not taken to) the following additional authorities: Bryan v United Kingdom (1995) 21 EHRR 21, at paras 44-46); R (Kathro) v Rhonda Cynon Taff County Borough Council [2002] Env LR 15, at paras 28-29; Le Compte, Van Leuven and De Meyere v Belgium (1981) 4 EHRR 1, at para 45-47; and Sporrong and Lonnroth v Sweden (1982) 5 EHRR 35, at paras 79-83.

 

Counsel for the Respondents' submissions
[131] The petitioners' art 6 and A1P1 rights had not been engaged by the decision not to have a public inquiry or by the decision to grant consent. The decisions were administrative decisions concerning the use of other land. They did not limit or remove the petitioners' right to develop or use their land. They were not determinative of the petitioners' civil rights and obligations. At best they were claims for loss of amenity or property value arising from the grant of consent for the use of other land. Reference was made to Lough v First Secretary of State [2004] 1 WLR 2557, per Pill LJ at para 51; Bovis Homes Ltd v New Forest District Council [2002] EWHC 483 (Admin), per Ouseley J at para 251; R (Mayor and Citizens of the City of Westminster) v The Mayor of London [2002] EWHC 2440 (Admin), per Maurice Kay J at paras 102-104; R(Redcar and Cleveland Borough Council), supra, per Sullivan J at para 42; R(Little) v Secretary of State for Trade and Industry, supra, per Stanley Burnton J at para 13.

[132] If, contrary to that submission, art 6 and A1P1 had been engaged, they had not been breached. Any interference with the petitioners' A1P1 rights was reasonably necessary in the public interest: Regina (Countryside Alliance) v Attorney General [2008] 1 AC 719, per Baroness Hale of Richmond at para 155; Axa General Insurance Ltd v Lord Advocate, supra, per Lord Reed at para 130. Deference is shown by the Courts to administrative judgments in specialist areas such as environmental protection and planning: Axa General Insurance Ltd v Lord Advocate, supra, per Lord Reed at para 131. It was generally very difficult to demonstrate a breach of A1P1 in such areas: Clayton & Tomlinson: The Law of Human Rights (second edition, 2009), at para 18.44. The Minister reached his decision having regard to the purposes and policies of the Scottish Government, and having regard to all objections received, including those submitted by the petitioners. In all the circumstances there had been no breach of the petitioners' rights under A1P1. Art 6 did not require that a public inquiry was held in this case. The petitioners had had ample opportunity to set out their objections to the application. There had been sufficient procedural safeguards. With administrative decisions in the planning sphere such as this the power of this Court to review the legality of the decision and the procedures followed was sufficient to ensure that the requirements of art 6 were met: Bryan v United Kingdom, supra, at para 47; Alconbury, supra, per Lord Slynn at paras 45-48; Lord Hoffman at paras 110, 117; Rena Begum v Tower Hamlets LBC [2003] 2 AC 430, per Lord Hoffman at paras 40-54; R(Adlard) v Secretary of State for the Environment, supra, per Simon Brown LJ at paras 18-32.

 

Counsel for the interested party's submissions
[133] The interested party adopted the respondents' submissions.

 

Decision

[134] For the reasons outlined by the respondents I am satisfied that the petitioners' art 6 and A1P1 rights were not engaged by the respondents' decisions. If, contrary to my view, they were engaged, I am also satisfied that they were not breached. I have no hesitation in concluding that in the circumstances any interference with their A1P1 rights was reasonably necessary and struck a fair balance between their interests and other interests. I am also clear that in the circumstances of this case art 6 did not require the holding of a public inquiry. The essential nature of the decision which had to be made was not the determination of a factual dispute. Rather, it required evaluation, judgement and the exercise of discretion in the public interest. The power of this court to review the legality of the decision and the procedures followed is sufficient to ensure that the requirements of art 6 are met. A more extensive right of review is not required: Bryan v United Kingdom, supra, at para 47; Alconbury, supra, per Lord Slynn at paras 45-55, per Lord Hoffman at paras 110, 117; R(Adlard) v Secretary of State for the Environment, supra, per Simon Brown LJ at paras 18-32; Rena Begum v Tower Hamlets LBC, supra, per Lord Hoffman at paras 40-54.

 

The matters raised in Stat. 27 of the Petition

Counsel for the petitioners' submissions

[135] Mr Steele's first submission was that the Minister had failed to take account of a material consideration - the experimental nature of the project. It was inherent in the proposal that there would be alterations to the location, configuration, size and nature of the turbines.

[136] Second, in terms of Sched 9, para 3(1)(b), in formulating its proposals the interested party had been bound to do what it reasonably could do to mitigate any effect which the proposals would have on the natural beauty of the countryside etc. In terms of para 3(2)(b), in considering the application the Minister had been under a duty to have regard to the extent to which the interested party had complied with its duty under para 3(1)(b). The application had been made on the basis that a design statement would be submitted and approved by the respondents at a later date. The Minister had granted consent on condition that prior to the commencement of the development a detailed design statement would be submitted for the respondents' written approval after consultation with SNH, certain other statutory consultees, and any other advisers the respondents saw fit to consult. Mr Steele submitted that in those circumstances the interested party had not performed its duty to mitigate and the Minister had unreasonably granted consent at a time when he was in no position to assess the actual impact of the development.

[137] Third, (and, according to Mr Steele, the best point of the three) he submitted that as the experimental nature of the development meant that the design would change over its lifetime it was irrational for the Minister to have granted consent in the terms he had. The development could not reasonably be controlled by a design statement and conditions. In particular, condition 14 was not in accordance with the guidance in circular 4/1998 on the use of conditions. It was imprecise and unenforceable.

 

Counsel for the Respondents' submissions

[138] The report to the Minister (6/2, pp18-19) and the decision letter (6/1, p 22) indicated that the Minister and his officials were fully aware of the fact that the development was for a deployment centre. The consent provided inter alia that the development shall include "not more than 11 three-bladed horizontal axis wind turbines each with a maximum blade tip height of 198.5 metres" (6/1, p34). The consent was granted subject to conditions. SNH had provided advice to the respondents on conditions. It had also noted that the "uncertain nature of it being a "deployment centre" rather than a fully designed windfarm raises particular issues ...". It had set out its advice on conditions to mitigate impacts at Annex A (pp8-11). Following the production of the SEIS, SNH had provided the respondents with further advice on conditions. SNH had noted that, given the uncertainties, a design ("Rochdale") envelope had been used in the ES and Addendum to inform and assess impacts on a worst case scenario - an approach which SNH supported. The Report to the Minister had recorded the recommendations made by SNH and its proposals regarding conditions (6/2, pp24-25). The Minister had followed the advice given by SNH. In light of the foregoing, it could not be said that he failed to take account of the experimental nature of the project.

[139] The conditions imposed on the consent were suitable for controlling the development, in particular the design of it. Circular 4/1998 set out government policy on the use of conditions in planning permissions. The consent granted under the 1989 Act is not a planning permission and was not granted under the planning acts. Circular 4/1998 did not apply to it. The Minister had a wide discretion under section 36(5)(a) of the 1989 Act to make the grant of consent subject to such conditions as appeared to him to be appropriate. Whilst not strictly applicable, the Minister did have regard to the guidance in the circular in considering the conditions to be attached. The conditions complied with the guidance. The conditions should not be construed narrowly or strictly, and the context of why the conditions were imposed was relevant when construing them (Dudley MBC v Secretary of State for Communities and Local Government [2009] EWHC 2666 Admin, per Wyn Williams J at para 16). They were precise and enforceable. It was not unreasonable in the circumstances for the Minister to proceed on that basis. The logical conclusion of the petitioners' argument was that any project which was experimental could not receive consent under the 1989 Act or planning consent under the planning acts. That was plainly incorrect.

[140] In fact the Minister had approached matters as if the interested party had had the obligations in para 3(1) of Sched 9. He had regard to the extent to which, in formulating its proposals, the interested party had done what it reasonably could to mitigate any effect the proposals would have. He was satisfied that the proposals, as ultimately formulated and with the conditions envisaged, would involve the interested party doing what it reasonably could to mitigate any effects on natural beauty etc. (para 3(1)(b)). The conditions imposed on the consent were suitable for controlling the development, including the design of it. The Minister had given careful consideration to the advice they had received from its statutory consultee, SNH, on appropriate conditions. The Minister had, in fact, addressed the requirements of Sched 9, para 3 of the 1989 Act in relation to mitigation on the basis that the interested party had had the duties referred to in para 3(1).

 

Counsel for the interested party's submissions

[141] Mr Armstrong adopted Mr Mure's submissions. The Minister had clearly understood and proceeded on the basis that the project was experimental in nature. The interested party was limited to construction within the design envelope, and turbines could only be installed in line with the consent. The conditions imposed were enforceable. They recognised and addressed the relatively unusual nature of the development. Reference was made to Fawcett Properties Ltd -v- Buckingham County Council [1961] AC 636; Carter Commercial Development Limited -v- Secretary of State for the Environment [2002] EWHC 1200 (Admin); and Bolton Metropolitan Borough Council -v- Secretary of State for the Environment, supra.

 

Decision

[142] In my opinion it is clear beyond peradventure that the Minister and his officials and advisers were fully aware both of the experimental nature of the proposed development and of the consequences that had for design and other criteria. The suggestion that the Minister failed to have regard to these matters appears to me to be groundless.

[143] Sched 9, para 3(1) did not apply to the interested party's formulation of their proposals. That is a short answer to the petitioners' second argument. The interested party had no para 3(1)(b) duty. In respect of para 3(2)(b), there was nothing for the Minister to have regard to. The interested party had the duties which the 2000 Regulations imposed upon it: but the petitioners make no complaint in that respect.

[144] In fact both the interested party and the Minister and his officials approached matters on the basis that the same para 3(1) obligations as applied to licence holders and the specified exemption holders should also be applied to the interested party. That was both pragmatic and understandable. The interested party was content with it; and, besides, the extent to which it had endeavoured to mitigate environmental impact was a factor to which the Minister could have regard in determining the application. Much the same ground was covered by the 2000 Regulations. In terms of those regulations the interested party was bound to include in its Environmental Statement a description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects (Sched 4, Part II, para 2). The respondents were prohibited from granting consent unless the interested party had complied with its obligations under the regulations (reg 3 and reg 4).

[145] In any case, the petitioners argument that the Minister failed to have regard to the extent to which the petitioners had complied with para 3(1)(b) appears to me to be ill-founded. If the duty under para 3(2)(b) was applicable the Minister was to "have regard" to the extent to which, in formulating its proposals, the interested party had done what it reasonably could to mitigate their environmental impact. The Minister was satisfied that the proposals, as ultimately formulated and with the conditions envisaged, represented the interested party doing what it reasonably could to mitigate any effects on natural beauty etc. (para 3(1)(b)).

[146] The gravamen of this argument was that at the time of granting consent - before the Design Statement was submitted and approved - the Minister did not have full design and mitigation details: and that in such circumstances granting consent - even subject to the conditions - was perverse. I have no hesitation in rejecting that contention. In my opinion the Minister was entitled to accept (i) that the design envelope informed and assessed impacts on a worst case scenario (an approach which SNH supported); and (ii) that the conditions recommended by SNH were an appropriate way to proceed in order to mitigate environmental impact.

[147] That brings me to Mr Steele's final point: that the Minister acted unreasonably in placing reliance upon the conditions, in particular because condition 14 did not comply with circular 4/1998. It was, he submitted, imprecise and unenforceable. The condition provides:

"Prior to the commencement of the Development, a detailed Design Statement must be submitted by the Company to the Scottish Ministers for their written approval, after consultation by the Scottish Ministers with SNH, Marine and Coastguard Agency, Northern Lighthouse Board, National Air Traffic Services and any such other advisors as may be required at the discretion of the Scottish Ministers. The Design Statement must provide guiding principles for the deployment of wind turbines. The plan must detail:

 

(a) Layout location for each phase and each turbine; and

 

(b) Turbine height, finishes, blade diameter and rotation speed across each phase, rows and individual turbine locations; and

 

(c) Lighting requirements (navigation and aviation) for each turbine/row, or, as the case may be, phase including any anemometer mast; and

 

(d) further detailed assessment of visual impacts to inform the detailed layout and design of each location and phase of the deployment centre from selected viewpoints to be agreed with the Scottish Ministers and any other such advisors as may be required at their discretion.

 

Reason: To set out design principles to mitigate, as far as possible, the visual impact of the turbines."

 

[148] In my opinion the respondents are correct to say that, strictly speaking, circular 4/1998 does not apply to the conditions imposed which the Minister decided to attach to the consent. I also agree that s36(5)(a) confers a wide discretion on the respondents to impose conditions. However, I do not place reliance merely on those matters. In addition I am satisfied that the Minister cannot be said to have acted unreasonably in granting consent subject to the conditions which he imposed. I am also content that Condition 14 is not void from uncertainty. In my view its terms are clear. Conditions of such a nature - which require matters to be agreed or approved by an authority - are often imposed (see e.g. Roberts v Vale Royal D C (1977) 78 LGR  368; R v Bristol City Council ex p. Anderson (2000) 79 P&CR 358). I am not persuaded that it is unenforceable: or that it was Wednesbury unreasonable of the Minister to proceed on the basis that it is enforceable.

 

The Court's discretion to refuse to grant reduction

Counsel for the respondents' submissions

[149] Mr Mure submitted that if, contrary to his submissions, the Act provided that s36 consent could only be granted to a licence holder or a person having the benefit of one of the four relevant exemptions, in the exercise of its discretion the Court should refuse to grant decree of reduction. All relief granted by way of judicial review was discretionary. The Court could refuse to grant having regard to the needs of good public administration (Bahamas Hotel Maintenance & Allied Workers v Bahamas Hotel Catering & Allied Workers [2011] UKPC 4, per Lord Walker at para 40; R v Panel on Take-Overs and Mergers, ex parte Datafin plc [1987] QB 815, per Sir John Donaldson at p. 840; Walton v Scottish Ministers 2013 SC (UKSC) 67, per Lord Carnwath at para 139). In the present case the interested party and the Minister had proceeded on the basis that the proposals contained in the application had to comply with all the requirements of para 3 of Sched 9. Both had had regard to, and applied, the relevant requirements. The interested party's lack of a licence or an exemption had caused no practical prejudice to the petitioners. The petitioners could have taken the "competency" point at any time after the application was lodged and publicised in August 2011. They delayed doing so until 26 September 2013. Before any electricity could be generated for supply at the deployment centre the person generating it would require a generation licence or an exemption from the prohibition against generating without a licence. In those circumstances the public interest did not favour the grant of reduction. No purpose would be served by re-running the application process anew. Money and time would be wasted in re-visiting matters already analysed and consulted upon. Many third parties (public, private and charitable) would be likely to be put to further expense.

 

Counsel for the interested party's submissions

[150] Mr Armstrong aligned himself with Mr Mure's submissions. However the interested party's seventh plea-in-law was wider than the respondents' eleventh plea-in-law. The latter addressed the scenario that the court found in the petitioners' favour only on the statutory construction argument. Rather than advance additional argument in relation to each other scenario Mr Armstrong suggested that if the court found in the petitioners' favour on any other ground the case should be put out by order to hear further submissions in relation to the interested party's eleventh plea.

 

Counsel for the petitioners' submissions

[151] Mr Steele submitted that in the event of the court accepting that consent could only be granted to a licence holder or relevant exemption holder it should grant the petitioners both declarator and reduction. The court should be very slow indeed to exercise a discretion to refuse to reduce an unlawful grant of consent. The circumstances in this case were not such as to justify that exceptional course. On the contrary, the interests of consistency and good public administration favoured reduction.

 

Decision

[152] Given my rejection of all the petitioners' other arguments, it is unnecessary for me to express a view on this issue. I prefer to reserve my opinion on it. The submissions I heard related to the scenario where the petitioners succeeded on the statutory construction argument, but failed on the remaining grounds of challenge. Had I decided in favour of the petitioners on that ground I would have wished to have heard fuller submissions on the issue of discretion. Time constraints at the First Hearing resulted, unsurprisingly, in less time being devoted to it than to other issues. I was not referred to any authority where this court had refused to grant reduction, far less any where it had done so in similar or analogous circumstances. I would have put the case out by order to give parties the opportunity of making further submissions before I pronounced an interlocutor giving effect to my decision.

 

Disposal

[153] I shall sustain the respondents' first plea-in-law, and dismiss the petition. I shall reserve all questions of expenses.