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Court rejects challenge to wind farm consent

A Perthshire landowner’s challenge to a permission allowing amendments to a wind farm has been rejected in the Court of Session.

A reporter had granted permission for the seven-turbine wind farm in 2014. In 2015, the developer applied for an amendment to the permission to allow changes to the size of the turbines and lay electrical and fibre-optic cables to connect the scheme to the national grid.

The claimant argued that the developer had submitted inadequate information to assess the scheme’s impact on two protected species – osprey and wildcats – and consequently the council had insufficient information to conclude that no significant environmental impact would arise. Denying interested parties the opportunity to submit comments on potential impact had also led the council to give inadequate reasons for its decisions, she claimed.

The Outer House of the court dismissed the challenge. Supporting its decision, the Inner House held that in accordance with Wordie Property Company Ltd v Secretary of State for Scotland [1984], the application of planning legislation was entrusted to local planning authorities as decision-makers, and the courts would only interfere where the decision-making process was legally defective. The use of conditions to assess the range of ecological measures to ensure that the protected species would not be significantly harmed was appropriate and competent, the court held.

Lord Drummond ruled that the decision was lawful and rejected the claimant’s challenge. He acknowledged that the public’s right to participate in the decision-making process was an important consideration. However, he thought it sufficient to assume that the planning authority would act in good faith in ensuring that the conditions were fully discharged, noting that their scope included the appointment of a clerk of works to oversee their implementation. Substantial prejudice had not arisen, he held.

Douglas v Perth and Kinross Council

Date: 4 May 2017

Ref: [2017] CSIH 28