SHEPHERDS RIG WIND FARM AND THE QUALITY OF REASONING.

In Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223, the Court of Appeal (in England)  held that where a decisionmaker had made a decision that was completely absurd, a decision so unreasonable that no reasonable authority could possibly have made it, then the decision may be overturned. Wednesbury, as it is known, is followed throughout the common-law world, and of course also here in Scotland.

The Shepherd’s Rig decision (WIN-170-2005) is one of the most poorly reasoned, overtly political decisions of recent times. In the poverty of its reasoning It brings shame to the very idea that Planning in Scotland in 2023 is in any way objective, and it belongs in the dustbin of jurisprudence.

Consider the following. All extracts are unedited. Emphasis is the author’s and is all added.

1            On 6 April 2022  two experienced Reporters held the first Public Examination into this application for 17 turbines of various heights, and ancillary development. They recommended refusal on grounds of significant adverse landscape and visual impacts. They found that the proposal did not contribute to sustainable development. Their conclusions identified a number of significant residual effects which could not be mitigated.

They recommended refusal because

• the proposal would have significant adverse effects on views from Cairnsmore of Carsphairn and its associated hills, especially in views where there are currently no turbines, on which a premium should be placed, given the preponderance of turbines in views in other directions;

• the proposal would have significant adverse effects on views to these hills, especially from the Stroanfreggan and upper Glenkens area and parts of the Southern Upland Way between Culmark Hill and Benbrack, and other designated walking routes;

• there would be an adverse scale relationship between parts of the Head of the Ken Valley and the proposed development;

• the divergence from the emerging wind farm pattern in the wider area would result in more significant landscape and visual effects from the proposals compared to existing schemes;

• the significant adverse landscape and visual effects would adversely affect the special qualities of the Galloway Hills Regional Scenic Area;

• given that the Cairnsmore of Carsphairn (and associated hills), the Southern Upland Way and the Galloway Hills Regional Scenic Area form key parts of the regional recreational resource, we find that significant weight should be given to the adverse landscape and visual impacts;

2            NPF 4 was published in February 2023. By law, it became part of every LDP.

3            A Second Examination into the same development (in the form of a Hearing) was convened in February 2023 to consider the impact of NPF 4. The development had not changed.

The same Reporters’ Conclusions from the second examination read

• (the development) would have significant adverse landscape and visual effects in relation to views to and from Cairnsmore of Carsphairn, especially from the Stroanfreggan and upper Glenkens area and the Southern Upland Way between Culmark Hill and Benbrack;

• The adverse landscape and visual effects would adversely affect the special qualities of the Galloway Hills Regional Scenic Area. Given that the Cairnsmore of Carsphairn (and associated hills), the Southern Upland Way and the Galloway Hills Regional Scenic Area form key parts of the regional recreational resource, we find that the adverse landscape and visual impacts are greater than localised;

• We find that there would be inevitable traffic disruptions and inconvenience resulting from the construction and decommissioning phases of the proposed development, but that the range of proposed mitigation measures would ensure that impacts are minimised; …

• The applicant has undertaken reasonable mitigation in designing the proposed development in respect of its effects upon the natural beauty of the countryside and in respect of other matters Ministers are required to take into account by Schedule 9 of the Electricity Act. Further design changes to mitigate the significant landscape and visual effects would not be possible due to the particular location and visibility of the site;

• The proposed development has very strong support in principle from national energy and planning policy. Overall, we find that the proposal’s benefits, in particular its contribution to renewable energy targets, now clearly outweigh its significant landscape and visual effects.

• Recommendation

We recommend that consent under section 36 of the Electricity Act 1989 and

deemed planning permission under section 57 of the Town and Country Planning

(Scotland) Act 1997 should be granted, subject to the conditions in Appendix C of

this supplementary report.

4            Scottish Ministers’ decision

• Scotland’s renewable energy and climate change targets, energy policies and planning policies are all material considerations when weighing up this proposed Development. NPF4, the Energy Strategy, and the OWPS make it clear that renewable energy deployment remains a priority of the Scottish Government. This is a matter which should be afforded significant weight in favour of the proposed Development.

• The proposed Development, if built, would align with the strategic outcomes of NPF4 by supporting the transition to a low carbon economy for Scotland and to take advantage of our natural resources to grow low carbon industries. The Scottish Government has confirmed its long-term commitment to the decarbonisation of electricity generation and the proposed Development would help advance this policy objective.

• Net positive benefits to the Scottish economy are anticipated alongside short- and longer-term benefits to the planning authority area of Dumfries and Galloway. The Scottish Ministers are satisfied that the proposed Development will provide carbon savings, and that these savings will be of an order that weighs in favour of the proposed Development and will contribute to the Scottish Government’s strategic priorities.

• The Scottish Ministers are also satisfied that there would not be significant adverse impacts on tourism as a consequence of the proposed Development but note the concerns about the effect on hillwalking.

• However, the Scottish Ministers acknowledge that the proposed Development would result in adverse visual and landscape impacts.

• The benefits of the proposed Development must therefore be considered carefully in the context of the negative impacts on the natural environment that would result and whether or not, on balance, they are acceptable. The Scottish Ministers are satisfied that the negative impacts are acceptable in accordance with NPF4 and in the context of the significant renewable energy benefits and the net economic benefits that the proposed Development would bring in contributing to renewable energy and climate change targets.

• The Scottish Ministers consider that these are significant considerations which strongly support the decision to grant consent under section 36 of the Electricity Act and deem planning permission to be granted.

4            Conclusion

Nothing- but nothing – changed between the two Public Examinations. The landscape and the impacts remained exactly the same. NPF 4 changed nothing except to articulate carefully evolved policies which already existed, and which had served us well. But in observing from the sidelines the excessive jubilation of the successful applicants, one cannot escape the conclusion that professional judgment is moribund, perhaps even dead, and that planning by diktat is where we now find ourselves. Stand in line, and you’ll get your turn.

Is nobody in the Scottish Government even slightly embarrassed by the quality of this reasoning?  Does it really hold the public in such contempt that it thinks this is good enough?

A friend to Scotland Against Spin