Scots law lord upholds Scot-Govt decision to approve first wind-turbine-farm on Wild Land

An appeal by a major Highlands landowner against a decision by the Scot-Govt to grant planning – for the first time – for a commercial-scale wind-turbine-farm within Scotland’s Wild Land has been dismissed by the courts.

Wildland Ltd and Welbeck Estates had appealed against the plan, claiming:

  • The development would adversely impact the local environment
  • That the development should in any event by dismissed because it is to be located in specially-designated Wild Land, and that
  • Scot-Govt Energy Minister Paul Wheelhouse, MSP, had ignored the precedent (against development) set by other Highland wind farm cases.

Danish millionaire Anders Povlsen funded the challenge against the decision to approve the 72.6-MW Creag Riabhach wind farm, a 22-turbine development be built on the Altnaharra estate in Sutherland.

However, all these arguments were dismissed by the judge, Lord Boyd, in his solo-verdict in the Court of Session (Scotland’s supreme court) yesterday in Edinburgh.

Boyd said, in his written judgement; “There has been an ongoing development in policy on wild land culminating in Scottish Planning Policy 2014.

“It seems clear that the policy contained in SPP 2014 is more rigorous in the protection of wild land than previous policy. It is not, however, an absolute protection against any development.

“Whether or not a policy is “strengthened” or weakened by the adoption of a new policy may, of course, be of interest in helping to understand its application.

“However, the issue for the court is not a qualitative assessment of present against historic policies but whether or not the decision-maker has applied the policy in force at the time.

“Apart from pointing out that the earlier decisions were refusals and that this was the first one where permission had been granted, where there had been considerations of wild land, the petitioners (Wildland Ltd & Welbeck Estates) have not put forward any particular reason for suggesting that these decisions were material considerations in this case.

“The earlier cases cited all relate to windfarms and, without reading each in detail, it appears that the issue of wild land is one of the determining issues. However, the developments are of different sizes, in different locations, each with their own location specific issues and environmental statements.

The impact on wild land will differ one from the other and the potential benefits of the developments will also no doubt differ.

“It is not for the court to make assessments as to why decisions on individual applications  might reach different results. These are planning judgements for ministers on the facts of each case applying the policy in force at the time.

“Ministers acknowledged the conflict with Wild Land policy, limited as it was, and struck a balance with other competing policies. In doing so they appraised the negative impacts against the benefits they perceived flowing from the development.

“Having gone through that process, Ministers reached a planning judgement taking into account all material considerations.

“In my opinion, there is no error of law either in the way in which they reached their decision or expressing their reasons for it.

“In short the petitioners’ position  (Wildland Ltd & Welbeck Estates) appears to be that no windfarm development whatsoever should be allowed on designated wild land areas. That may be, but that is a political decision, and not one for the courts.”

Importantly, Lord Boyd also referred to the recent case of RSPB v Scot Govt ex parte Mainstream Renewable Power) – which is now subject to a final appeal against development of a £2 billion Scottish offshore wind farm at the British Supreme Court in London.

Boyd noted that in this case at the Inner (superior) House of the Court of Session, Lord Carloway, Lord President, Scotland’s most senior judge in his verdict against the RSPB had said:

“It is not the role of the court to test the ecological and planning judgement made in the course of … the decision making process. Assessing the nature extent and acceptability of the effects that a development will have on an environment is – apart from the limited scope for review on public law grounds – exclusively a task for the planning decision-maker.”


See also: Renewables and Energy Law After Brexit

Keynote conference, Dundee University

1 December 2017

Wildland Ltd & Welbeck Estates had argued that the Scot-Gov should have followed previous decisions against approving development of wind farms in Glen Morie, Limekiln, Allt Duine, Glencassley and Sallachy. They also said that the Scot-Govt was being inconsistent in refusing these applications while upholding the current case.

A spokesman for Wildland Ltd & Welbeck Estates, commented later: “We are saddened and disappointed at the Court’s decision.  

“Let there be no doubt – this development is a substantial incursion into the wildland area between Foinaven, Ben Hee, Arkle, Ben Hope, Ben Loyal and Ben Klibreck – from whose summits this industrial scale development will be highly visible.

“We suspect the same can be said for Suilven, Quinag and Canisp in Assynt as well.

“These iconic hills now provide the backdrop to the North Coast 500 and the new tourism businesses that will maintain a sustainable Highland economy for decades to come.

“Those businesses, and the tourists who support them, are ultimately ill-served by policies that seem to afford little protection to Wildland Areas and National Scenic Areas across Scotland.

“This particular proposal always seemed so substantial in an area renowned for its scenery, its wildness and nature. It is troubling in the extreme that, despite the special qualities of this and other areas of wild land, the Scottish Government has not afforded them the protection under law that they so clearly deserve and need.”

31 Aug 2017

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