Stronelairg was kicked back by the Court of Session. Well done the John Muir Trust for their tenacity.
Lord Jones has, in a 124 page Opinion, found in favour of the John Muir Trust who had lodged a petition for Judicial Review at the Court of Session in respect of Scottish Ministers’ decision to approve the 67 turbine Stronelairg wind farm without holding a public inquiry – Ministers said that they had all the information to be able to make a decision without holding one.
Well, clearly not! Because if they had held one, and taken proper account of the rule of law, the considerations on which this judgement has been based might have been addressed at an inquiry, thus saving a considerable amount of public and private money.
The JMT’s challenge was based on three grounds; within these there were ‘sub-grounds’:
1. the Ministers acted unlawfully and/or unreasonably in granting the consent without the supplementary environmental information (“SEI”), referred to in the decision letter, being advertised and/or being consulted on;
2. the Ministers acted unlawfully and/or unreasonably in granting the consent, notwithstanding Scottish Natural Heritage’s (“SNH”) objection in principle to the windfarm on the ground of its impact on wild land, and failed to give adequate reasons for not following SNH’s advice; and
3. the reasons for their consent which were given in the decision letter are inadequate.
With regard to 1), if additional information is given, the EIA directive orders that the information be re-advertised to give the public a chance to properly participate in the decision-making process.
The fact that The Highland Council (THC) had provided information – because it asked for a reduction in turbine numbers and sizes, and repositioning – in itself substantive, became ‘Supplementary Environmental Information’.
And one of the relevant parts of the Opinion on this is: ‘The THC report contained factual information relevant to, and assessments of, the impacts which the proposed development would have on the environment.
‘It is that type of information that members of the public need to be aware of if they are to be sufficiently well-informed properly to participate in the environmental decision-making procedures. If not, the value of their entitlement is diminished’.
Counsel for Ministers and SSE had asked that if Ministers were found to be in breach, the judgement should not be in JMT’s favour because JMT has suffered no prejudice.
The Opinion states: ‘JMT is not asking the court to vindicate a private right but to intervene in defence of the rule of law. Its interest is in the environmental decision-making procedures provided for by EIA Regs’
On the second and third grounds, the challenge failed in various of its sub divisions, disappointingly on the wild land aspects – why Stronelairg was granted when Dunbeath and Glenmorie were refused; why Stronelairg was removed from SNH mapping, for instance. Sir Crispin Agnew QC gave it his best shot – spoke about ‘rushing ahead to make the decision before the new SNH mapping came out” and the fact that the area was removed from the new map as being ‘sharp practice’. Unfortunately, in the consideration of prior case law, these aspects were not upheld.
What was, however, was the fact that Ministers had misunderstood SNH’s advice.
SNH had said ‘it would not be possible to mitigate the environmental impacts of any wind farm development at Stronelairg’.
Lord Jones said: ‘SNH’s view was so obviously material to the Minister’s decision, particularly when The Highland Council was expressing what was, in effect, the opposite view, not to give direct consideration to it would not be in accordance with the intention of the EIA Regs.’
This last para is arguably the most pertinent, of this Opinion, and for anything else where the Scottish Government thinks that it can flout the rule of law:
‘This ground of challenge is closely bound up with the Ministers’ failure to comply with the terms of regulation 14A. Had the THC report been dealt with as additional information, as I have held that it should have been, its existence would have been advertised before the decision was taken, and the public, including SNH, would have been entitled to have commented on it, and to challenge THC’s assertion that the mitigation measures that had been agreed with the developers were such that, in the balancing of benefits against adverse landscape impacts, it would be appropriate to grant consent. In terms of regulation 4(2)(e), the Ministers would have taken into account the terms of any such challenge, before determining the application. ‘
Which takes us neatly back to our second paragraph. Comply with the law, Scottish Government. Do not imagine that you can buck the system because you can’t. You were shown, at best, to have mismanaged this in your assertion that you had all the information.
And now we have the ridiculous situation of the substation at Melgarve having been approved the other week, the same substation which was going to serve Stronelairg. You are very free, with taxpayer and consumer money, to put the cart before the horse!
We have a message for SSE as well. You’re going to have to accept the rule of law and go right back to the drawing board.