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SECOND DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Justice Clerk
Lord Macfadyen
Lord Clarke
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[2006] CSIH 41
XA49/05
OPINION OF THE LORD
JUSTICE CLERK
in
APPEAL TO THE COURT OF
SESSION
under section 239 of the
Town and Country Planning (Scotland) Act 1997
by
THE MORAY COUNCIL
Appellant;
against
THE SCOTTISH MINISTERS
First Respondents;
and
RENEWABLE ENERGY SYSTEMS
LIMITED
Second Respondent:
Relating to a decision of
the Scottish Ministers by their Reporter, Mr Trevor Croft, dated 11 April
2005 to grant planning permission for a wind farm development and for the
excavation of borrow pits at Drummuir Estate, Keith, Banffshire
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For the appellant: JD Campbell,
QC;
Morton Fraser
For the first respondents:
Crawford; Solicitor to the
Scottish Executive
For the second respondent: CM Campbell, QC; McGrigors
14 July 2006
Introduction
[1] On
11 November 2003 the
appellant refused two applications by the second respondent for planning
permission for (1) the erection of a wind farm consisting of 21 wind turbines
and associated works and (2) the excavation of three small borrow pits at Hill
of Towie, Knockan and Machattie's Cairn, Drummuir, Keith, Banffshire. The second respondent appealed against the
refusals. The Scottish Ministers
appointed Mr Trevor Croft (the Reporter) to decide the appeals.
[2] By
letter dated 2 February 2005 the Reporter indicated that he was minded, for the
reasons set out in the letter, to allow the appeals subject to certain
specified conditions and to confirmation by the Keeper of the Registers of the
registration of an agreement between the appellant, the second respondent and
the landowners under section 75 of the Town and Country Planning (Scotland) Act
1997 (the 1997 Act). I shall call this
the decision letter. By letter dated 11 April 2005 the
Reporter, having received the appropriate confirmation, formally allowed the
appeals and granted the planning permissions subject to the conditions.
[3] The
appellant appeals against these decisions on the ground that they were ultra vires of the Scottish Ministers, because
the Reporter failed to take into account certain material considerations, and were
accordingly perverse and unreasonable; and seeks an order quashing the
decisions.
The reasons for refusal given by the appellant
[4] The
appellant refused the applications on the following grounds:
"The proposal is contrary to the Development Plan
policies S/ENV1,
L/IMP1, L/ED10, L/ED15, L/IMP2 and L/IMP3
because: (a) It would result in an
unacceptably intrusive, dominant and overbearing man-made feature in an open
and exposed area of rural landscape which would be detrimental to the
appearance and character of the landscape, (b) The impact of the development
would be exacerbated by the characteristic of movement associated with the wind
turbines and the cumulative impact of this development along with approved
windfarms at Pauls Hill (Moray), Cairn Uish (Moray) and Glens of Foudland
(Aberdeenshire) and (c) There are not sufficient material considerations to
justify a departure from Development Plan policies."
The development plan
[5] The
development plan is published as a unitary document. It consists of the Moray Structure Plan,
approved in 1999, and the Moray Local Plan, adopted in 2000. Although the appellant's reasons for refusal
cited six development plan policies, this appeal is based on only two of them,
namely the Local Plan economic development policy L/ED10 (renewable energy) and
the Local Plan implementation policy L/IMP2 (development in rural areas).
[6] Policy
L/ED10, so far as relevant to this appeal, is in the following terms:
"Proposals for renewable energy will be considered
favourably where they meet the following criteria: ...
(v) they
do not result in an unacceptable impact in terms of visual
intrusion, noise, electro-magnetic disturbance,
pollution, traffic generation or damage to the local ecology.
(vi) they
do not result in an unacceptable cumulative impact."
To supplement policy L/ED10, the
appellant issued Wind Energy Policy Guidance (WEPG) in October 2001. This followed a review of those areas with the
greatest potential for wind farms. The
guidance is directed to the positive promotion of renewable energy developments
and the safeguarding of Moray's high quality environment from inappropriate
developments. The WEPG classifies Moray
into two areas, namely the "unlikely" area which is affected by constraints
such as low wind speeds, prime agricultural land, specific national heritage
value and the like, and the Preferred Search Areas (PSAs), which are free of
such constraints. The appeal site is
located within a PSA. It lies between
Keith and Dufftown, which are about five kilometres from its eastern and
western boundaries respectively.
[7] Policy
L/IMP2 applies to development in rural areas.
So far as relevant to this appeal, it is as follows:
"The Council will seek to ensure that all proposals
for development in the rural area ... are compatible in terms of character,
amenity and design, integrate (sic) sensitively
into the environment and, where possible, located within easy walking range of
public transport (this latter requirement will particularly apply to large
scale developments)."
Planning guidance
[8] For
the purposes of this appeal the relevant national policy guidance is to be
found in National Planning Policy Guideline 6 (Renewable Energy Developments (revd 2000) (NPPG 6)) and in Planning
Advice Note 45 (Renewable Energy
Technologies (revd 2002) (PAN 45)).
According to NPPG 6,
"Planning policy is based on the principle that
renewable energy developments should be accommodated throughout Scotland where the technology can
operate efficiently and environmental impacts can be addressed
satisfactorily. Furthermore, with
improved turbine design, wind farm developers are now able to capture lower
wind speeds than previously and the requirement for exposed sites may not
always be paramount ... (para 19)
The aim of the Scottish Executive ... is to ensure
that the commitment to renewable energy is satisfied and supported through
development plan policies and development control decisions unless, at the site
level, there are serious adverse impacts that can not be mitigated" (para 22).
PAN
45 says inter alia that
"Scotland has a variety of
landscapes. Some will be able to
accommodate wind farms more easily than others, on account of their landform
and relief and ability to limit visibility.
Some are highly valued for their quality. There are no landscapes into which a wind
farm will not introduce a new and distinctive feature. Given the Scottish Ministers' commitment to
addressing the important issue of climate change and the contribution expected
from renewable energy developments, particularly wind farms, it is important
for society at large to accept them as a feature of many areas of Scotland for
the foreseeable future" (para 71).
The Reporter's handling of the appeal
[9] The
Reporter conducted a public local enquiry, after which he made an accompanied
inspection of the appeal site and various surrounding viewpoints and, with the agreement
of parties, unaccompanied visits to a wind farm site under construction at
Glens of Foudland and to operating wind farms at Dun Law and Busbie Muir. The latter site was of particular relevance
because of its proximity to a town, in that case Ardrossan, and because the
turbines there are similar to those proposed at the appeal site in terms of
height and general layout and appearance.
[10] In addition to the development plan, the appellant's WEPG, NPPG
6 and PAN 45, the Reporter also had before him the policy statements of
Scottish Natural Heritage (SNH) on renewable energy (No 01/02, 2001)) and on strategic
locational guidance for on-shore wind farms (No 02/02, 2002)) and its Visual Assessment Of Wind Farms: Best
Practice Report; and consultation responses from numerous interested bodies
such as the Scottish Executive Environment Group, SNH, the Scottish Environment
Protection Agency, Historic Scotland, the Royal Fine Art Commission for
Scotland, the Scottish Civic Trust, the Association for the Protection of Rural
Scotland, and two community councils.
[11] When he came to consider the details of the proposal, the
Reporter had before him the Environmental Statement which the developer was
required to submit in terms of regulation 3(2) of the Environmental Impact
Assessment (Scotland)
Regulations 1999, and certain other environmental information tendered at the
enquiry. He also had the evidence of the
expert witnesses for the second respondent and the appellant, and the evidence
of supporters and objectors. He had the
benefit of technical assessments of the site using, for example, certain
recognised matrices, photographic evidence of the appeal site and other such
sites, and photomontages showing, from various agreed viewpoints, the likely
appearance of the developed site. Lastly,
he had the benefit of his inspection of the site and his visits to the important
viewpoints and to the other wind farm sites.
The Reporter's decision
[12] In making his determination, the Reporter was obliged to "have
regard to the provisions of the development plan, so far as material to the
application, and to any other material considerations." (1997 Act, s 37(2); s
48(5)(a)). He correctly took as his
starting point section 25 of the 1997 Act which required him to determine the
appeals in accordance with the provisions of the development plan unless
material considerations indicated otherwise.
He considered that the issues were (a) whether the proposal was
consistent with the development plan and (b) if so, whether other material
considerations justified the refusal of planning permission. He considered that the material
considerations that were of particular relevance were Scottish Executive policy
guidance and advice on renewable energy developments and technologies; the WEPG;
the views of SNH; the public
perception of the proposals and the impact on local residential amenity (para
114).
[13] He then considered each of the development plan policies referred
to in the appellant's reasons for refusal (paras 118-148). In particular, he considered criteria (v) and
(vi) of policy L/ED10, which he described as being the appellant's principal
reasons for refusal. He noted that the appellant
had relied on SNH for landscape advice, that SNH had not objected to the
proposals and that it was satisfied, following certain amendments to it, that its
impact would be acceptable (para 127). Fifteen
specific viewpoints had been agreed with the appellant to be important. He was satisfied that they were sufficiently
representative to enable a considered view to be taken. He visited five of them that were judged in
the environmental statement to be likely to suffer significant change. He concluded that the visual intrusion of the
proposal in terms of criterion (v) would not be unacceptable (paras 131, 138). He concluded that the impact of the proposal,
together with the impact of other proposed schemes, would not be so great as to
justify refusal on the ground of conflict with criterion (vi) (para 141). He considered it possible that a different
conclusion could be reached if other potential wind farms were taken into
consideration; but he was of the view that, since there was no guarantee that
any of them would come to fruition, the possibility that some of them might was
not sufficient on its own to justify refusal of proposals that would otherwise
accord with the development plan (para 142).
[14] He regarded policy L/IMP2 as relevant. He was satisfied, for the reasons given in
his analysis of L/ED10 in relation to the facts (paras 121-143), that the requirements
of the policy relating generally to siting and design, location, infrastructure
capacity and environment were complied with (para 146).
[15] Taking all the policies together, he concluded that the
proposal accorded with the provisions of the development plan (para 148).
[16] The Reporter then considered numerous considerations of
possible materiality on a wide range of questions such as residential amenity
and employment (paras 149-160) and concluded that, when all of them were taken
together, they did not justify the refusal of planning permission.
Submissions for the parties
For the appellant
[17] Counsel for the planning authority submitted that the Reporter had
misdirected himself in three specific respects, namely (1) he misunderstood and
wrongly analysed the landscape and visual impacts of the proposal; (2) he
misdirected himself in relation to the cumulative impact of this and other proposed
wind farms; and (3) he misdirected himself on the effect of the proposal on
residential amenity.
[18] Counsel for the appellant submitted that the decision letter
failed to set out a proper assessment of the natural environment or an understanding
of the impacts of the development. The
developer's own evidence was that the landscape quality was "high" and that the
effect of the wind farm upon the landscape character would be "major." The decision wrongly conflated the landscape
impact of the proposal with its visual intrusion and failed properly to
consider such impacts other than within the site boundary. There was no analysis in the decision letter
of the evidence of the expert witnesses for the second respondent and the
appellant. The Reporter had limited his
consideration of visual amenity to the photographic material in the
environmental statement. By conflating and
confusing landscape and visual impacts he had misdirected himself and had failed
to give proper consideration to the landscape impact. Moreover, by ignoring certain material, he
had disabled himself from forming a judgment as to the acceptability of the
proposal on the whole of the evidence put before him. He therefore erred in law in reaching his conclusions
on this critical issue. In any
assessment of the landscape and visual impacts of such a proposal, there would
be an element of subjectivity; but the Reporter was bound to have regard to the
evidence. From the decision letter it
was impossible to say whether or not he had taken into account any of the
technical landscape evidence, other than that of the second respondent, or what
his conclusions on it had been. Although
he set out the appellant's evidence in detail (paras 78-89), he failed to say
how he had analysed it and what conclusions he drew from it. He had found that the intrusion was major
(para 133), thereby accepting the substance of the appellant's factual case;
but he said that it was not unacceptable.
That was a subjective judgment.
He failed to explain how he came to it.
[19] The Reporter had also reached a view (para 141) that the
cumulative impact of the proposal and of other wind farms, existing or
proposed, would not be so great as to justify the refusal of planning permission
on the ground of conflict with criterion (vi); but he had also considered it
possible that a different conclusion could be reached if other potential wind
farms were taken into consideration. He
had reached that conclusion as a result of considering certain specified material
(paras 139-140), but he had not engaged in any analysis of it. In particular, he had failed to analyse the
effect of the additional turbines, whether individually or collectively. There was therefore no proper analysis of the
landscape impact or of the visual impact of other proposals. He therefore erred in law and acted
perversely.
[20] Counsel submitted, finally, that the Reporter had erred in
concluding (para 146) that the criteria of policy L/IMP2 were complied with. The decision letter contained no qualitative
analysis of the extent of any loss of amenity that would be caused by the
proposed development, notwithstanding the evidence on that issue to which he
referred (paras 103-101). He had
concluded nevertheless that residential amenity would be
"very much affected for a number of people living
locally, especially those who are opposed to wind farms, or at least to this
specific proposal (para 153)."
He concluded that it would be
difficult to quantify the overall impact, with much depending on individual
reactions to the turbines. While he
recognised the importance of residential amenity to those involved, he did not
find the overall impact on residential amenity to be sufficient to overcome the
support for the scheme in the policy guidance expressed in NPPG 6 and PAN 45. To have attempted to balance an indeterminate
quantification of loss of residential amenity against the political imperative
for renewable energy developments was perverse.
NPPG 6 supported the commitment to renewable energy through development
plan policies and development control decisions unless, at the site level,
there were serious adverse impacts that could not be mitigated. The Reporter had found that there would be a serious
loss of residential amenity. That finding
was inconsistent with his conclusion that the proposal would accord with the
development plan. He had failed to
explain how a finding that there would be a substantial loss of such amenity
had been gauged against the requirements of criterion (v) of policy
L/ED10. He had therefore erred in law
and acted perversely. In effect, by
holding that adverse impacts on residential amenity were outweighed by policy, he
had swept aside residential amenity as a material consideration, whereas NPPG 6
(at paras 19, 22) made clear that renewable energy developments should not be
permitted where they would have a significant long-term detrimental impact on
the amenity of people living nearby and where the impact could not be mitigated
satisfactorily.
[21] Taking all three criticisms together, counsel submitted that,
while there was a legitimate area of subjective judgment in the making of this
decision, it was not clear to the informed reader of the decision letter that
the Reporter had considered all relevant evidence.
For the first respondents
[22] Counsel submitted that it was no part of the court's function
to re-examine the Reporter's conclusions unless there was a demonstrable
failure on his part to take account of a material fact, or some other
perversity or irrationality. Matters of
planning judgment were within the exclusive province of the Reporter. They involved an objective analysis of all of
the material placed before him, a weighing up of that material and the making
of a professional judgment upon it. These
were matters for the decision-maker. If
there was evidence on which the Reporter could base his conclusions, his
conclusions could not be challenged in this court. He did not require to refer to each and every
consideration that arose, nor to deal expressly with each and every argument
put to him. It was sufficient that he
set out adequate reasons to enable the informed reader to understand the basis
on which he had reached his decision. He
therefore had to deal only with the substantial issues. A challenge based upon the allegation that
the Reporter had failed to assess, consider, analyse or weigh certain parts of
the evidence was misplaced unless there had been a complete failure to take
account of a material fact (South Bucks
County Council v Porter (No 2) [2004] 1 WLR 1953). The appeal was in substance
no more than a misguided argument that the Reporter should have reached a
different conclusion on the facts.
[23] The decision letter sufficiently disclosed that the Reporter
had taken account of all the evidence placed before him. In his conclusions (paras 112ff) he had
correctly identified the statutory test and had correctly determined the
issues. He had recognised that the
proposed development would affect the environment significantly. The development plan recognised this
too. The issue was to assess the extent
of the impact and to put it into the context of policy L/ED10. The Reporter had done this (paras 118,
130). He recognised that the landscape
impact consisted of the visual intrusion of the development. That was how the expert witnesses saw the
matter. The Reporter considered that the
impact would be significant; so the question was whether it was
acceptable. That was ultimately a matter
of opinion. There was inevitably a
subjective element. From the material
before him and from his own inspections he was able to make an expert judgment
on the point. He had concluded that the
development would not be unacceptable. That was a matter for him.
[24] Likewise, on the question of the cumulative impact of this and
other proposals, it was clear that the Reporter had carefully considered the
evidence. He was in no doubt that
cumulative impact would occur, but he considered that it was not unacceptable.
[25] As to residential amenity, the Reporter was entitled to
conclude that policy L/IMP2 was satisfied in relation to siting and design,
location, infrastructure capacity and environment. Looking at all the policies together, he
considered that the proposal accorded with the development plan. He then turned to the question of material
considerations and concluded that the proposal did not conflict with national
planning guidance. He considered it
significant that SNH did not object to the proposal and he noted that there had
been evidence by local residents for and against the proposal. There would always be some individuals who
would be affected significantly. It was
difficult to quantify the overall impact.
In allowing the appeal, the Reporter imposed several conditions in the
interests of amenity.
For the second respondent
[26] Counsel for the second respondent adopted the submissions of
counsel for the first respondents. His
basic submission was that the appeal was in essence an invitation to the court
to intrude into the Reporter's exclusive planning jurisdiction. Both the landscape impact and the visual
impact turned on the question of the visual intrusiveness of the proposal. That was par
excellence a matter of planning judgment (Tesco Stores v Secretary of
State for the Environment [1995] 1 WLR 759, Lord Hoffman at p 780, quoted
in City of Edinburgh Council v Secretary of State for Scotland, 1998 SC (HL) 33, Lord Clyde at p 44F-G). There
was no basis for the idea that the Reporter misunderstood the issues. A complaint that the Reporter had
insufficiently analysed the issues could succeed only if he had made a
demonstrable error.
[27] The first submission for the appellant was based on a confusion
between the likely impact of the proposal and its acceptability. Acceptability was the criterion in the key
policy L/ED10. The second criticism made
on behalf of the appellants was no more than an invitation to the court to
criticise the merits of the decision itself.
The third criticism was based on a misunderstanding. L/IMP2 was not a residential policy. It was a general amenity policy. This was not a proposal for development in a
residential area. The bulk of the
objectors lived more than three kilometres away. The Reporter was concerned with questions of
visual amenity and intrusion, a more subjective question than traditional
residential amenity issues. The weight
to be given to national policy guidance was a matter for the Reporter. He found that there was no serious adverse
impact, although the impact was difficult to quantify. Therefore he correctly applied NPPG 6. He also had in mind the advice of PAN 45,
which required an acceptance of wind farms as a feature of Scotland for the
foreseeable future.
Conclusions
Decision letters
[28] Counsel for the appellant has subjected the decision letter to detailed
textual analysis and criticism. In doing
so he has, I think, asked us to judge it by an needlessly exacting
standard. The function of the Reporter is
to make a decision by reference to the provisions of the development plan and to
other material considerations (1997 Act, s 37(2); s 48(5)(a)). In so doing, he has to make his determination
in accordance with the development plan unless material considerations indicate
otherwise (1997 Act, s 25; cf City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33, Lord Clyde at p. 43-44 ). In
the normal case, the Reporter will have to consider, in addition to the
development plan, any relevant national planning guidance, responses from
consultees, expert evidence from the principal parties on the facts and on the
planning issues and representations from supporters and objectors.
[29] His starting point will be the development plan, considered if
need be in the light of national planning guidance. Having regard to the development plan
framework and the nature of the proposal, he must decide what are the
determining issues. With those issues in
mind, he must make his findings in fact on the nature of the proposal and its
probable effects. It is for him to
decide what lines of evidence are material to the determining issues and what
conclusions are to be drawn from them.
[30] The Reporter must then decide in the light of his findings how
he resolves the determining issues. This
involves the exercise of his planning expertise and judgment. In his decision letter he must set out the
process of reasoning by which he reaches his decision; but that does not
require an elaborate philosophical exercise.
Nor does it require a consideration of every issue raised by the
parties. The Reporter is entitled to
confine himself to the determining issues.
So long as his reasons are intelligible and adequate, he is entitled to
express them concisely. The guiding
principle is that the decision letter should leave the informed reader in no
substantial doubt as to the Reporter's findings in fact and conclusions on the
determining issues, and as to the way in which he has applied section 25 of the
1997 Act in reaching his decision (Perth
and Kinross Council v Secretary of
State for Scotland 1999 SLT 1095).
[31] Lord Brown of Eaton-under-Heywood has observed that "Decision
letters must be read in a straightforward manner, recognising that they are
addressed to parties well aware of the issues involved and the arguments
advanced. A reasons challenge will only
succeed if the party aggrieved can satisfy the court that he has genuinely been
substantially prejudiced by the failure to provide an adequately reasoned decision"
(South Bucks County Council v Porter (No. 2), supra, at para 36).
[32] The determining issues in this case were clear-cut. It was obvious to the parties what they were.
In my opinion, the decision letter in this case is a particularly
well-constructed document in which the Reporter's reasoning is lucid and well
expressed.
The first submission for the
appellant
[33] In my opinion, this submission is based on an artificial
distinction between landscape impact and visual intrusion and on an erroneous
assumption that a major visual intrusion constitutes an unacceptable impact.
[34] The appellant's policy L/ED10 is favourable to developments of
the kind proposed and the site lies within one of the appellant's own PSAs. The only question therefore in relation to policy
L/ED10 is whether criteria (v) and (vi) are satisfied. Both criteria relate to the unacceptability
of certain impacts. For the purposes of
this appeal, we can confine the issue under criterion (v) to that of "impact in
terms of visual intrusion" and we can confine the issue of cumulative impact
under criterion (vi) to the landscape and visual impacts. I do not accept the contention that the
Reporter confused landscape and visual impacts or that he failed to give due
consideration to landscape impact. The
reality in this case is that the landscape impact consists of the visual
intrusion. Apart from the development of
three small borrow pits, this is not a proposal that would alter the landform
of the site in any way. The impact upon
the landscape consists in the siting upon it of the proposed turbines and
associated works. The Reporter saw that
as an aspect of visual intrusion. He was
entitled to make that judgment, which in my opinion was obvious. He acknowledged that the development would
cause a significant visual intrusion upon the landscape. That seems to have been common ground. He concluded, however, that the policy
allowed for such an intrusion, provided that it was not "unacceptable." I agree with counsel for the second
respondent that that conclusion was a pure question of planning judgment.
[35] The Reporter received an abundance of evidence on the policy framework
and on the relevant issues of fact.
Counsel for the appellant implied that because the Reporter failed to
deal expressly with the evidence of the appellant's witness on the question of
landscape impact, and to analyse that evidence, it was to be inferred that he
had ignored it. That is a fallacious
line of argument that is often heard in appeals of this kind. It is not necessary for the reporter to refer
to each and every line of evidence and give his detailed views upon it. If he should fail to deal in detail with any
particular line of evidence, it does not follow that he has overlooked or
ignored it. In my view, it is clear from
a reading of the decision letter as a whole that the Reporter understood the
import of the appellant's evidence on landscape impact and took it into account. It related precisely to the appellant's
grounds of refusal. In any event, it was
for the Reporter, having decided what the real issues were, to decide what evidence
was most relevant to each.
The second submission for the
appellant
[36] The issue of cumulative impact to which this submission relates
was one on which the Reporter had to make findings in fact and make a
judgment. His judgment was necessarily
subjective to some extent; but the
subjectivity of his judgment was based upon an assessment of the facts that was
informed by his own expertise. Since
counsel for the appellant has accepted that there was an element of
subjectivity in the judgment, I fail to see how he can ask this court to
disturb the Reporter's conclusions.
Those conclusions have a solid basis in fact, not least in the Reporter's
inspection of the appeal site and his visits to the agreed vantage points and to
other wind farm sites. In my opinion,
there is no substance in this submission.
The third submission for the
appellant
[37] This submission is based on a misconstruction of the
development plan policy L/IMP2 and implies a needless requirement that the
reporter should have quantified residential impact. Policy L/IMP2 is not a residential policy at
all. It is an implementation policy governing
development control in rural areas. I
fail to see how it has any direct relevance to the question which the Reporter
had in view, namely whether the consistency of the proposal with the provisions
of the development plan was nonetheless outweighed by other material
considerations
[38] This submission is in any event based, in my opinion, on the
unsound proposition that the Reporter was perverse in balancing an
indeterminate quantification of loss of residential amenity against national
planning policy. I fail to see how loss
of amenity is capable of quantification anyhow;
but if such a quantification is possible, it was certainly not incumbent
on the Reporter to carry it out.
Although the visual impact of the development was significant, the
Reporter was entitled to take account of the fact that most of the residential
objectors lived over three kilometres away and to hold that their objections
did not outweigh development plan policy and national planning guidance. His decision on that point was a matter of
judgment, subjective to some extent but again informed by his expertise.
Decision
[39] I propose to your Lordships that we should refuse the appeal.
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SECOND DIVISION, INNER HOUSE, COURT OF SESSION
|
Lord Justice Clerk
Lord Macfadyen
Lord Clarke
|
[2006] CSIH 41
XA49/05
OPINION OF LORD MACFADYEN
in
APPEAL TO THE COURT OF
SESSION
under section 239 of the
Town and Country Planning (Scotland) Act 1997
by
THE MORAY COUNCIL
Appellant;
against
THE SCOTTISH MINISTERS
First Respondents;
and
RENEWABLE ENERGY SYSTEMS
LIMITED
Second Respondent:
Relating to a decision of
the Scottish Ministers by their Reporter, Mr Trevor Croft, dated 11 April
2005 to grant planning permission for a wind farm development and for the
excavation of borrow pits at Drummuir Estate, Keith, Banffshire
_______
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For the appellant: JD Campbell,
QC;
Morton Fraser
For the first respondents:
Crawford; Solicitor to the
Scottish Executive
For the second respondent: CM Campbell, QC; McGrigors
14 July
2006
[40] I agree with your Lordship in the Chair that, for the reasons
given in your Lordship's Opinion, the appeal should be refused.
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SECOND DIVISION, INNER HOUSE, COURT OF SESSION
|
Lord Justice Clerk
Lord Macfadyen
Lord Clarke
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[2006] CSIH 41
XA49/05
OPINION OF LORD CLARKE
in
APPEAL TO THE COURT OF
SESSION
under section 239 of the
Town and Country Planning (Scotland) Act 1997
by
THE MORAY COUNCIL
Appellant;
against
THE SCOTTISH MINISTERS
First Respondents;
and
RENEWABLE ENERGY SYSTEMS
LIMITED
Second Respondent:
Relating to a decision of
the Scottish Ministers by their Reporter, Mr Trevor Croft, dated 11 April
2005 to grant planning permission for a wind farm development and for the
excavation of borrow pits at Drummuir Estate, Keith, Banffshire
_______
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For the appellant: JD Campbell,
QC;
Morton Fraser
For the first respondents:
Crawford; Solicitor to the
Scottish Executive
For the second respondent: CM Campbell, QC; McGrigors
14 July
2006
[41] I agree that
this appeal should be refused for the reasons given by your Lordship in the
Chair to which there is nothing that I can usefully add.
