Judicial Review – CWP and FIM v Scottish Ministers

Two procedural hearings have already taken place.

Construction was stopped after local residents raised concerns about impacts on private water supplies. They are not involved in the JR.

Case Description The appellants appeal,under section 239 of the Town and Country Planning (Scotland) Act 1997(“1997 Act”),the Reporter’s decision on an enforcement notice appeal under section 130(1) of 1997 Act dated 12th April 2019.The enforcement notice concerned alleged breaches of planning condition 36 and supplemental planning conditions 1.1–1.5(“SCs”) relating to planning consent granted for a proposed windfarm near Moscow, East Ayrshire. The SCs allegedt o have been breached related to an operational replacement water supply for a number of properties. In the decision the Reporter upheldin part the enforcement notice in so far as it related to certain of the requirements in SCs 1.1 and 1.2,and in respect of which breaches of planning control were specified in Part 3. The Reporter varied the terms of the enforcement notice to reflect her decision and made consequential variations to certain of the steps required to comply with the enforcement notice. In this appeal the appellants submit that the Reporter, inter alia,erred in law in reaching the conclusions that she did, and in not quashing the enforcement notice. The key issues for the court’s consideration include,inter alia, whether, as contended by the appellants,the Reporter: (1) erred in law in misinterpreting SCs1.1, 1.2,(b)(d), (e)and 1.5;(2) took account of extraneous evidence relevant to the interpretation of the SCs in question;(3) failed to have proper regard to material evidence when determining compliance with the SCs in question;(4) applied inconsistent reasoning and reached conclusions not available to her; and (4) erred in law in failing to quash the enforcement notice on the basis of a purported nullity.