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Failure to understand landowner notification leads reporter to decline appeal

A reporter in seeking to address a failure by an applicant to properly serve affected landowners of plans to construct a 15-kilometre underground electricity cable, sub-station and transformer to connect a wind farm in Fife, decided that the appellant had failed to understand the importance of serving the correct certificate under section 35(4) of the Town and Country Planning (Scotland) Act 1997.

In reviewing the appeal papers the reporter identified a failure at application stage for the developer to have omitted to serve notice on all requisite landowners. Despite an appeal having been lodged and accepted as valid the reporter invited the appellant to correct this omission before he addressed the merits of the scheme. This led some landowners to question the legality of such a course of action. It also generated other comments from other landowners who would be likely to be affected but who still had not received notification of the appeal.

Dealing first with his ability to determine the appeal, the reporter rejected claims that it was beyond his power to determine the appeal when the application had clearly been legally and procedurally flawed. Nor did he accept that his invitation to the appellant to correct the erroneous certification procedure meant that he was pre-disposed to allow the appeal. He had highlighted a flaw in the process and had sought a mechanism to correct it which would not prejudice any part.

However, it appeared despite his protestations to ensure that all landowners along the route were notified, that this had not in fact happened. The appellant’s agent had available information on how to determine whether the route of the cable would be on highway land or on land owned by third parties. It was not permissible under such circumstances to assert that all reasonable steps had been taken to notify owners and the reporter decided to decline to determine the appeal without addressing the planning merits.

Report: David Russell; Written representations