iPlanning - February 2013

• Shetland Wind Farm Consent in Judicial Review Challenge
• City of Edinburgh Council v The Scottish Ministers [2012] CSOH 180
• The Latest Steps in Planning Reform
• Proposed amendment to Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment (“the EIA Directive”)

Shetland Wind Farm Consent in Judicial Review Challenge

The decision of the Scottish Government to grant consent to a 103-turbine scheme in Scotland is facing a judicial review challenge from conservation group Sustainable Shetland. The challenge focuses on the Scottish Ministers’ decision not to hold a Public Local Inquiry (“PLI”) before granting consent for the scheme. Sustainable Shetland is also arguing that the Ministers failed to take into account obligations to protect a rare species of bird under the European Birds Directive.

The requirement to hold a public inquiry for s.36 Applications is set out explicitly in Schedule 8 of the Electricity Act 1989, where there is an outstanding objection from the relevant local planning authority. The Petitioners argue that the Scottish Ministers acted unlawfully in issuing consent for the Viking Windfarm without a Public Local Inquiry, even though there was no objection from the Planning Authority. In issuing consent for the scheme, the Scottish Ministers stated that since they had not objected to the proposal then a PLI was not required.

However, the Petitioners argue that this ignores the further obligation inherent on the Ministers which is to consider whether a PLI is nevertheless necessary. Where a local authority has not objected, the Secretary of State is nonetheless required to consider objections to a scheme, together with all other material considerations, with a view to determining if a PLI should be held with respect to the application. The scheme attracted objections from over 2500 individuals, the RSPB, the John Muir Trust and Statutory Consultee, Scottish National Heritage. Indeed, some 300 people took to the street to march in protest to the application. The Scottish Ministers insist that they took the Birds Directive and the other concerns of objectors into account when granting consent for the scheme.

In a previous English case a judicial review of the Secretary of State’s decision to issue a consent issued under a s36 without the holding of a PLI was unsuccessful.  In R. (on the application of Little) v Secretary of State for Trade and Industry [2002] EWHC 3001 a third party sought leave to challenge a decision by the Secretary of State not to hold a PLI into the erection of a wind farm in an area designated as a Special Landscape Area.

The argument put forward relied on the judgement in R (on the application of Adlard) v Secretary of State for Transport, Local Government and the Regions) [2002] EWCA Civ 735 which held that where an administrative decision was discretionary, there was no requirement that a statutory scheme should provide a right to an oral hearing at the initial proceedings and that the Secretary of State had not acted incompatibly with Convention rights by refusing to call in an application. In Little it was held that deciding whether to hold a PLI the Secretary of State had to carry out a balancing exercise, and in this case, all the information was already available to the Secretary of State. The fact that a development was controversial did not mean of itself that a PLI was required.

The Petitioners in the Shetland wind farm challenge are using a similar line of argument, by challenging the failure of the Ministers to hold a public inquiry. The Petitioners argue that that Ministers failed to give proper consideration to objections over the windfarm and all other material considerations in deciding not to have a public inquiry. It is also argued they failed to give adequate reasons for not having one. A secondary line of argument is that the Ministers have failed to take account of their obligations under the European Birds Directive. The argument is that the Ministers could not reasonably have decided the relevant scientific factual background in relation to protected species without an inquiry. The Court will have to examine not only if it was unreasonable not to hold an inquiry in the face of the objections the scheme sustained, but also if it was unreasonable in that the Scottish Ministers made their decision without verifying if they were in possession of the relevant scientific facts. The Petitioners benefit from a Protective Costs Order (discussed in previous iPlanning editions) which will cap their costs in the action.

The case was adjourned on 1st February to determine whether the UK Government wished to take an interest in proceedings. During the hearing, Senior Counsel for the Petitioners broadened the argument to argue that the Scottish Ministers were in breach of the Birds directive – rather than merely failing to take sufficient account of it. The case was adjourned to establish if the UK Government should take part in the proceedings as if it was found that the Scottish Ministers had breached the Birds Directive, the UK as a member state of the EU would be liable for the breach, as opposed to Scotland.

The case raises a number of important points of wider interest. We will keep you informed as matters develop.

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City of Edinburgh Council v The Scottish Ministers [2012] CSOH 180

A recent Court of Appeal decision has explored the interpretation of section 14(2) of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 which sets out the test to be applied in assessing whether listed building consent should be granted. In particular it considered whether the Reporter hearing the Appeal against the refusal of listed building consent should confined himself to consideration of the factors listed under Section 14(2), i.e. the need to have “special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses” or whether he could consider whether there were, nonetheless, special reasons to justify the grant of consent.

Background

The Council served a Listed Buildings Enforcement Notice on an owner of a property in Edinburgh in January 2011 in respect of unauthorised internal alterations by way of subdivision of a number of rooms in a property which was used as supported lodgings for vulnerable adults. The Council only became aware of the alterations following an application by the owner for an HMO license in 2010 following the acceptance of the property by the Council’s Adult Resource as meeting all National Care Standards for Housing Support, following the unauthorised works. The Listed Building Enforcement Notice required the owner to remove the partitions and reinstate the principal room to its former condition.

Reporter’s Findings

On receipt of the enforcement notice, the owner Appealed to the Scottish Ministers on the grounds that firstly the works did not constitute a contravention of listed building control; and secondly that in any event listed building consent should be granted for the works. (It is worth noting that this is still a valid ground on which to appeal under the listed building regime, in contrast to appeals against enforcement notices where, since the coming in to force of the Planning etc. (Scotland) Act 2006 it is no longer possible to appeal on the basis that planning permission ought to have been granted - in effect to seek retrospective planning permission).

The Reporter agreed with the Council that there had been a breach of listed buildings consent as the works had affected the character of the listed building. The question was whether listed buildings consent should be granted. The Reporter found that there were “few such opportunities in the city and that the loss of this accommodation would have a significant impact on a key council service”. As such he found that there was “a compelling basis for an exceptional grant of listed building consent” and relied on a local plan policy which provided some support to alterations to listed buildings where no unnecessary damage was caused.

In allowing the appeal and granting retrospective Listed Building Consent, the Reporter attached a condition which required the partitions to be removed and the principal room to be reinstated once the property had ceased to be on the Council’s Adult’s Resource Team register of supported lodgings. The Reporter therefore appeared to have come to the most equitable solution, ensuring the protected of the listed building in the long term, but allowing the property meantime to continue its use as lodgings for vulnerable adults.

Statutory Appeal

The Council lodged an appeal to the Court of Session against the Reporter’s decision on grounds that he had erred in law by considering whether the works reconciled with development plan policy and whether there were any special reasons to justify consent being granted and on the basis of his consideration of the visibility of the alterations to the public.

Effectively the Council’s argument was that the Reporter should simply have determined whether listed building consent should be granted, not whether it was reasonable that the unauthorised works should be removed. Had the Reporter used the correct test, he would, in the context of the Special Needs argument, have addressed the question of whether there was a need for the particular property to be used to house vulnerable adults, rather than assessing the impact on the Council of “the loss of this accommodation”. The Council also argued that the Reporter had failed to take account of the Scottish Planning Policy and the Scottish Historic Environment Policy.

Conclusions

The Court of Appeal rejected the Council’s appeal. Lord Tyre confirmed that section 14(2) of the Act was the correct starting point. He held that whilst this test does not serve as an “absolute bar” to consent being granted, nonetheless, before listed building consent can be granted, there must be considerations of “sufficient force to outweigh the adverse effect.”

Lord Tyre held that, when read as a whole, the correct approach was adopted by the reporter in terms of considering national policy as set out in SPP and SHEP. A failure to expressly refer to SPP or SHEP in his decision letter did not mean that the reporter erred, where the reporter had in fact not failed to take account of material considerations. This must be correct.

This case confirms that the decision-maker is not limited only to considering the application of the duty under Section 14(2) to have “special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses” but it appears that, in terms of non-statutory guidance, that that statutory presumption can be rebutted by where there are other material circumstances to justify the grant of consent.

WJM can provide advice in relation to Listed Building Consent and Enforcement Notices.

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The Latest Steps in Planning Reform

Planning reform continued apace with further developments last month. The Scottish Government published its “Key Actions on Planning Reform” last month which sets out a number of “challenges” and the ways that the Government intends to tackle these. These all follow the various consultations of last year.

The first of these is continuing to promote a plan-led system and so implementing the reporter’s recommendations in the Development Plan Examinations Consultation 2012.
This will be done by:

• Production of a revised guidance note for Reporters undertaking Development Plan Examinations, and update to Circular 1/2009, to ensure that examinations are completely in a more timely fashion
• A review of Strategic Development Plans and continue to work to share best practice
• Prepare Scotland’s 3rd NPF, and consult on the Main Issues Report in March
• Review SPP to ensure it reflects the current economic climate
• Produce guidance in relation to architecture and placemaking following the consultation last year.

The second is driving improved performance in terms of the Consultation on Fees for Planning Applications 2012.
This will be done by:

• Increasing planning fees by 20% from April to help relieve resource pressures
• Establishing a high level political group to monitor and improve planning performance.
• Publishing a Scotland-wide performance report, drawing on the recent reports of the planning authorities, and agencies, under the Planning Performance Framework
• Providing funding to support various projects including £673,000 to planning authorities struggling with applications for wind farms.

The third is simplifying and streamlining the system by implementing changes that came out of the consultation on Miscellaneous Amendments to the Planning System 2012. One of these has already been implemented, and this is the removal of the requirement for pre-application consultation when amending a condition on a major development. Other things include removing restrictions on delegating council interest cases for decision by an officer and streamlining requirements to advertise planning applications.

Similarly the Consultation on the General Permitted Development Amendment Order 2012 proposed amendments to permitted development rights and so a statutory instrument is currently being prepared to bring forward the amendments consulted upon.
Finally, there are a number of improvements following the Development Delivery Consultation 2012. These include:

• working with planning authorities to look at new methods of funding infrastructure upfront, and will promote examples of successful practice;
• Circular 1/2010 has been revised to emphasise the importance of ensuring s75 obligations are completed quickly and consideration is given to the commercial viability of a development, and so things like the use of phased payments is encouraged;
• Working with planning authorities to consider whether a model s75 would be appropriate.

In addition, the Government has also recently published a processing agreement template which it hopes will be used in applications for major developments to help manage the progress of development through the planning system. The Government also aims to make the ePlanning system more popular and improve online facilities including improving online local development plan systems to maximise its use.

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Proposed amendment to Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment (“the EIA Directive”)

In October 2012 the European Commission published proposals to amend the terms of the EIA Directive, which is given effect to in Scotland by the Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2011.

The proposals can be found here. The proposals involve a number of wide ranging amendments including mandatory screening, a requirement that environmental statements be prepared by certain accredited experts and increased timescales for consultation, particularly in relation to complex projects. The overall aim is to increase the quality of environmental assessments, and to ensure greater consistency between the EIA and SEA processes.

The Scottish Government is presently meeting with various industry and stakeholder groups to discuss the proposed changes. In due course changes to the 2011 Regulations and other implementing provisions will be required to bring them in line with any amendments to the Directive. We will report further in future issues.

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