This case law update in relation to renewable energy projects focuses on developments from the courts in the past month that are of general public interest, which change or clarify the law in a particular area, or raise practice points of broader application.
Enforcement of suspensive conditions outwith developer's control
Two appeals under section 239 of the Town and Country Planning (Scotland) Act 1997 arose out of a planning permission obtained by Community Windpower Limited for the construction and operation of a windfarm at Sneddon Law, East Ayrshire.
The planning permission was subject to a number of conditions, including supplemental conditions to protect the quantity and quality of private water supplies to neighbouring properties and ensure that there was an alternative supply in place in the event that the principal private supply was contaminated or disrupted. Fulfilment of these supplemental conditions was a condition precedent for commencement of the development.
In July 2017, the developer provided documentation to the planning authority purporting to demonstrate that these conditions had been fulfilled. Site investigation works then began. The planning authority did not agree that the conditions had been met and it served an enforcement notice alleging a breach of planning control in August 2017.
Appeal to reporter
The subject of the appeal was whether the actions the developer had taken to make provision for an alternative water supply to the properties were sufficient to purify the suspensive conditions.
For some of the properties, the developer had taken steps to create an alternative water supply by drilling boreholes and providing pipes for connection but these pipes were not fully connected to the properties. There was not therefore a fully operational replacement water supply which could instantly be turned on if the existing water supply became contaminated or disrupted. These final connections were dependent on the cooperation and consent of the property owners, which cooperation and consent had not been forthcoming.
Another of the conditions required that holding tanks were to be installed at each property, capable of holding at least 24 hours’ supply of water. These were not installed to all of the properties because the property owners had either not responded to correspondence or had refused to allow them to be installed.
In both cases, the refusal to allow these alternative water supplies to be connected or installed stemmed from the property owners' preference that the developer establish a water supply to their properties from the public mains rather than from a borehole or other private water supply.
The reporter found that, on 11 different counts, the suspensive conditions had not been fulfilled and the enforcement notice was upheld.
Court of Session appeal
The judges held that the conditions required a result or state of affairs, not simply the developer's best effort to achieve that result or state of affairs. That the developer has tried its best but failed by reason of the actions of others is "nothing to the point" and as a matter of fact, the conditions were not fulfilled and the enforcement notice was properly upheld.
The decision does express some sympathy with the position of the developer, noting that the reporter who imposed the supplemental conditions cannot have intended that it would be a way for the proprietors to block development. Nevertheless, the conditions require a result or a state of affairs to exist before development proceeds and that has not been achieved.
The court noted that it is not uncommon for planning conditions to require a result that it is beyond the developer’s powers to achieve, whether that is because it requires the cooperation of a third party which is not forthcoming, or for some other reason. Those conditions are still enforceable and will not be waived just because the developer has tried to achieve them but has been unsuccessful through no fault of their own.
Late judicial review of MOD's objection to windfarm development
A renewable energy company that wants to develop a wind farm close to a centre that monitors for covert nuclear tests has been given permission to take legal action against the Ministry of Defence, despite the judicial review petition being lodged late.
EnergieKontor UK Ltd applied for planning permission for a wind farm development within the consultation zone surrounding the Eskdalemuir Seismic Array, a series of seismometers capable of detecting vibrations caused by nuclear tests. The Ministry of Defence has responsibility for protecting this technology from seismic vibrations from other sources that could interfere with its capability to detect nuclear testing activity.
The Array is able to deal with a certain amount of interference but there is a "noise budget" which must not be exceeded by developments within a 50km consultation zone. MOD policy is to allocate this noise budget on a first come first served basis and once the whole of the noise budget has been allocated, no further development in the vicinity would be supported by the MOD.
The issue in the present petition arises out of a distinction in MOD policy as regards the allocation of noise budget between developments with capacity greater than 50MW and of those with capacity not exceeding 50MW. The different planning process for each size of development means that noise budget is allocated to large proposed schemes earlier in the application process, giving them an unfair preference under the "first come first served" policy. The petitioner submits that the MOD’s policy of allocating noise budget is thereby unreasonable, ultra vires and unlawful.
The petitioner became aware of the difference in treatment applied by the MOD in spring 2018 but continued with its negotiations to seek to change MOD policy. Only when it became clear that a change in policy wasn't going to happen, 21 months later, did it raise judicial review proceedings.
The MOD argued that it was inappropriate and unreasonable, having regard to the principle of good administration, for EnergieKontor to wait for so long before raising proceedings. The MOD had allocated noise budget according to a policy that had been in operation since 2005; developers and relevant statutory authorities had proceeded on the basis that the policy and the noise budget allocation table were valid, although there was no consensus within the wind farm industry regarding the correct approach.
Lord Tyre split up the period when no judicial review of the MOD's policy was raised into three periods:
- From 2005 until spring 2018 EnergieKontor was excusably ignorant of the policy. As observed in R (Gavin) v Haringey LBC  1 PLR 61 at paragraph 45, a claimant cannot fairly be criticised for failing to take action before he knew that there was anything to take action about.
- From spring 2018 until April 2019 EnergieKontor sought to resolve matters through the Eskdalemuir Working Group, a body set up in 2004 to consider the potential impact of wind farms in the vicinity of the Array. This was a reasonable and appropriate course of action for the petitioner to take. Judicial review is in principle a remedy of last resort and it is reasonable to seek to first resolve the issue without litigation.
- From April 2019 until proceedings were raised in 31 December 2019, there was nothing to suggest that the MOD may change its position therefore proceedings could have been raised earlier. However, exercise of the court's discretion must take account of the whole circumstances and not merely the earliest date when the petitioner could, if it had chosen to do so, reasonably have begun its litigation.
In allowing the petition to proceed, Lord Tyre noted that the issue is an important one that requires to be resolved and there was no prejudice to the MOD. Lord Tyre saw no advantage in refusing the present petition because of the possibility that another petition raising the same issue may be brought in the future. The substantive issues in dispute will therefore be heard at a later hearing.