Judicial review against MOD given leave despite delay 

A wind farm developer has been given permission to seek judicial review of a Ministry of Defence policy that would block its plans for a wind farm on a site near Eskdalemuir, despite an objection that it had delayed for 21 months in bringing proceedings.

Lord Tyre in the Court of Session allowed the petition by Energiekontor UK Ltd to proceed after a hearing on whether it was equitable to extend the normal three month time limit on judicial review applications.

The MOD’s objection followed a policy relating to the Eskdalemuir Seismic Array, an installation capable of detecting vibrations caused by nuclear tests and comprising part of the verification regime provided for in the Comprehensive Nuclear Test Ban Treaty. The policy, operated since about 2005, set a “noise budget” comprising a seismic ground vibration threshold within a 10km exclusion zone surrounding the Array, and a 50km consultation zone within which the MOD required to be consulted in relation to any application for wind farm development.

MOD policy was to allocate noise budget to applications within the consultation zone on a first come, first served basis. However in relation to developments of not more than 50MW capacity, budget was allocated when it was notified of the planning application by the local authority, whereas with larger developments it was allocated on notification by the Scottish ministers of a scoping request in relation to an environmental impact assessment report. The petitioners argued that this unfairly favoured larger developments, which had budget allocated at an earlier stage. When they applied for planning permission in 2018, the MOD objected because the noise budget had already been reached (and exceeded) by a notified larger proposal.

By May 2018 the petitioners were aware of the detail of the policy and had obtained the MOD’s noise budget allocation table showing how it was used up. They sought to achieve removal of the alleged inconsistency in allocation practice in discussions with the MOD, Scottish Government and a working group of those interested in wind farm developments in the area. These failed to reach agreement and no progress was made after April 2019. A “commercial solution” explored with the MOD between April and December 2019, which would restrict the turbines at other developments of the petitioners, failed to identify sufficient noise budget. The present proceedings were begun on 31 December 2019.

The MOD argued that no sufficient grounds had been shown to allow an application out of time; that it had not been reasonable for the petitioners to wait for some 21 months after becoming aware of the detail of the policy challenged; and that the principle of good public administration required legal certainty, which would be damaged if the petition were allowed to proceed. Judicial review had been in the petitioners’ contemplation since at least May 2018.

Lord Tyre said it was appropriate to consider three periods separately. From the formation of the policy in 2005 until the petitioners became aware of it in April or May 2018, they were excusably ignorant of the policy, and in particular of the detail now challenged.

From spring 2018 until April 2019, the petitioners had sought to achieve a resolution without resort to judicial review. Since that was in principle a remedy of last resort, this was “a reasonable and appropriate course of action to take… On the basis of all of this activity I conclude that it is equitable to extend the three-month time limit until at least April 2019”.

Between April and December 2019, despite much correspondence, “very little of substance was happening. In particular, there is little or no indication that the petitioner was given any reason to think that a solution satisfactory to it was imminent”. To that extent, it had not been demonstrated that proceedings could not have been begun earlier than they were.

However it was not appropriate to test the exercise of the court’s discretion against the earliest possible date at which proceedings could have been brought; rather, it had to take account of the whole circumstances. On that approach it was equitable to extend the three month period to the date the petition was lodged. The issue was an important one that should be determined, and without prejudging the merits, the statutory test of real prospect of success was met. The argument based on good administration was best considered at the hearing on the merits; there were no immediate practical consequences of granting permission.

Finally, no prejudice to the MOD had been identified, since the petition did not seek to threaten the system adopted to safeguard the Array, nor to challenge the first come, first served principle. “The challenge is concerned rather with allocation of priority as between proposed developments, which should be a matter of indifference to the MOD so long as there is noise budget available for allocation.”

Click here to view the opinion.