Legal comment: Landscape may outweigh climate in wind farm decisions, finds Scottish court

The considerable discretion afforded to those determining consent applications for onshore wind farms has been confirmed in a case brought before the Outer House of the Court of Session.

Plans for an onshore wind farm have been stymied by its impacts on the landscape

The conclusions of North Lowther Energy Initiative Limited v Scottish Ministers [2021] CSOH 104 could result in considerable uncertainty for developers but the case is being appealed.

The North Lowther Energy Initiative (NLEI) had sought consent under section 36 of the Electricity Act 1989 to build a 30-turbine wind farm in the Lowther hills near Sanquhar, Dumfries and Galloway but was refused by Scottish government on 8 January last year.

Ministers agreed with the reporter in the case, who determined the wind farm would have unacceptably adverse landscape and visual impacts and harm the historic setting of Wanlockhead village – the highest in Scotland and a popular tourist destination. But the development would also help to meet renewable energy targets by supplying up to 151 megawatts of power and deliver substantial and economic benefits, the reporter said.

NLEI, part of German firm BayWa, brought judicial review proceedings seeking a declarator that the decision was unlawful and sought to reduce the decision.

The original plan to build a much larger wind farm comprising 140 wind turbines, was cut back to 30 due to widespread opposition. At a public inquiry held in 2019, local community leaders argued that the development would “decimate” the landscape.

The company advanced several arguments before the court as to how the Scottish government had erred in law, including it its interpretation of schedule 9 of the 1989 Act.

On this point, the court held that the reporter displayed a clear error of law when determining that the company was required to mitigate the effects of their scheme, as this obligation only applies to licence holders or those authorised by exemption rather than to parties such as NLEI who fell into neither of those categories. However, it was held that the error was not material. Regardless of whether there is an obligation to mitigate, the Scottish government is under a separate obligation to consider the desirability of preserving natural beauty, conserving flora and the like. Therefore, both the reporter and the Scottish government were obliged to consider these matters.

However, the court disagreed with NLEI’s contentions that Wanlockhead’s setting in the landscape should not have been taken into account and that the reporter had conflated a two-stage process required by the Planning (Listed Buildings and Conservation Areas) (Scotland) Act, pointing out that setting is specifically mentioned in parts of Scottish Planning Policy.

Another argument related to claimed inconsistencies in the reporter’s findings: on one hand, the proposed development would “protect sites, buildings and objects of architectural, historic and archaeological interest” while on the other, the proposed mitigations included in the development proposal were “insufficient to ensure that the natural beauty and historic interest of the area would be preserved”. But the court found that, when the report was considered as a whole, there were no conflicts as such. The reporter had concluded that the buildings at Wanlockhead would be protected but that the visual impact on the village would be too great.

The final contention was that the Scottish government had not applied relevant prior planning decisions, or explained why a different decision had been reached. On this point there was an interesting discussion about the balancing exercise required. The court held that, in each case, the reporter had to balance landscape and visual issues against the requirement for renewable energy. How that balance was struck was an exercise of judgement, considering the facts and circumstances of the particular case. The balancing exercise in this case, in respect of which there were difficult landscape and visual issues, was different from previous cases where the landscape and visual aspects were acceptable. Therefore, it was held that the reporter had not applied previous decisions inconsistently.

The case underlines the discretion afforded to decision-makers and, in turn, creates further uncertainty for developers. It is ironic that this case was being considered in the same month as the case in which environmental campaign group Greenpeace was challenging the government’s decision to grant a permit for BP to extract oil in the North Sea (Greenpeace Ltd v The Advocate General and BP Exploration Operating Company Limited and ITHACA Energy (UK) Limited).

The circumstances of North Lowther were perhaps acute given the largely unspoilt beauty and historic interest of the area in question. However, it does sharpen the focus on what is acceptable in terms of our landscape. If, as a society, we want to move away from fossil fuels and tackle the climate change emergency then renewable energy will need to play a large part of that. Nothing is without some impact. Is it time for the balance to be readdressed?

Laura Tainsh is a partner at Davidson Chalmers Stewart.