Court backs review body over turbines decision

Upholding a lower court ruling, the Court of Session's Inner House has rejected claims that a local review body (LRB's) decision to grant permission for two wind turbines in southern Scotland was fundamentally flawed.

rmission for the 100-metre-high turbines had previously been refused, but in March 2013 the LRB reversed the planning officer’s decision and decided that they should be approved. This decision was upheld by the Lord Ordinary in the Outer House. The claimant argued that the Lord Ordinary failed to subject the LRB decision to rigorous scrutiny.

The claimant maintained that the Lord Ordinary had erred in his interpretation of the Town and Country Planning (Scotland) Act 1997, which sets out the review procedure to be adopted by LRBs. She argued that he failed to take into account technical guidance on the sensitivity of the landscape to the size of turbines proposed and whether there were unacceptable cumulative impacts. She also asserted that the principles of natural justice had been breached because she had been unable to submit representations to the LRB, which had not undertaken a site visit.

The Inner House rejected all these arguments, ruling that the Lord Ordinary’s decision could not be criticised. It emphasised that issues of planning judgement were irrelevant to the verdict. It noted that under the statutory provisions for reviewing delegated decisions, LRBs must approach the matter anew and cannot simply rubber-stamp an officer’s professional view.

The Lord Ordinary had not inferred that the level of scrutiny required by a LRB should be less than that required of a reporter, the court noted. It saw nothing to suggest that LRBs’ operation was incompatible with European law. It found that the Lord Ordinary had examined each of the matters brought before him and had assessed the turbines’ impact on residential amenity and cumulative impact. There had been no breach of natural justice because the LRB had informed the claimant that further representations could be submitted, it ruled.

Carroll v Scottish Borders Council

Date: 7 October 2015

Ref: XA52/13

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