(1) In this application the Auquhirie Land Company Limited claim £2,594,599 of compensation from the respondents in respect of the grant by the Scottish Ministers of a necessary wayleave for pylons carrying a 275kV overhead transmission line across their land. The claim is made under para 7 of Schedule 4 to the Electricity Act 1989 (“the 1989 Act”). The loss is said to arise from the fact, as the applicants aver, that the wayleave has prevented them erecting two wind turbines on their land in addition to three for which they were able to get planning consent and have now been built. The relevant date, for the purposes of the claim, is 12 October 2010, the date on which the necessary wayleave was granted. The respondents are Scottish Hydro Electric Transmission plc.
Schedule 4, para 7:
Provisions supplementary to paragraph 6
7 (1) Where a wayleave is granted to a licence holder under paragraph 6 above -
(a) the occupier of the land; and
(b) where the occupier is not also the owner of the land, the owner,
may recover from the licence holder compensation in respect of the grant.
(2) Where in the exercise of any right conferred by such a wayleave any damage is caused to land or to moveables, any person interested in the land or moveables may recover from the licence holder compensation in respect of that damage; and where in consequence of the exercise of such a right a person is disturbed in his enjoyment of any land or moveables he may recover from the licence holder compensation in respect of that disturbance.
(3) Compensation under this paragraph may be recovered as a lump sum or by periodical payments or partly in one way and partly in the other.
(4) Any question of disputed compensation under this paragraph shall be determined by the Tribunal; and section 4 of the Land Compensation Act 1961 or sections 9 and 11 of the Land Compensation (Scotland) Act 1963 shall apply to any such determination.
Arnold White Estates Ltd v National Grid Electricity Transmission plc  EWCA Civ 216
Berkeley v Secretary of State for the Environment and Anr  2 AC 603
Bolton Metropolitan Council v Waterworth (1891) 29 EG 625
Bwllfa & Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks Co  AC 426
Director of Buildings and Lands v Shun Fung Ironworks Ltd  2 AC 111
Gordon v National Grid Gas plc LTS/COMP/2009/04, decision of 3 June 2016
Horn v Sutherland Corporation  2 KB 26
Macleod v National Grid Company plc  2 EGLR 217
R v Swale BC Ex p Royal Society for the Protection of Birds  1 PLR 6
R(Dry) v West Oxfordshire District Council & Anr 2011 1 P & CR 16
Scarborough Muir Group Ltd v Scottish Ministers  CSIH 5
Steel v Scottish Ministers  SLT (Lands Tr) 81
Transport for London (formerly London Underground Ltd) v Spirerose Ltd (in administration)  1 WLR 1797
(2) At a procedural hearing on 17 November 2015 we agreed, at the suggestion of the respondents, to split the hearing of the application into two stages; planning and valuation. We heard the first stage over six days from 13 to 20 May, when the applicants were represented by Mr James Findlay, advocate, and the respondents by Miss Ailsa Wilson QC with Mr Brian Gill, advocate. It is with that hearing that this decision deals.
(3) On the morning of 13 May Miss Wilson raised a matter arising out of Mr Findlay’s Note of Argument and Summary of Position, which had been lodged in advance of the hearing. She was concerned about what she said was a new approach being taken to valuation by the applicants. It appeared that a case based on a special assumption that planning permission for an additional two turbines would have been granted by the relevant date was being departed from in favour of a case based on hope value. Mr Findlay denied that such was the case, pointing to paras 3.8, 3.9 and 3.13 of the record. We heard limited argument on the matter before proceeding with the proof but the issue was to become something of a running sore as between Miss Wilson and Mr Findlay, being returned to in closing submission and, indeed, in letter form, after we had taken matters to avizandum. We see no merit in rehearsing all that was said on both sides at these various stages. Suffice to say this: that although the special assumption formed the basis of the applicants’ case when the application was raised – see paras 3.8, 3.9, 3.34 and, in particular, 3.35 of the original application – it seems to us to be clear enough from the applicants’ pleadings as adjusted on 26 January 2016 that the case was no longer based on that assumption and was instead based on hope value – see paras 3.8, 3.9. 3.13, 3.35 and 3.38. Of these, perhaps para 3.8 contains the clearest statement of the applicants’ position: “In the absence of the Wayleave the Applicant’s Property would have been valued as at the relevant date on the basis that it would have been likely to receive planning permission for erection of two further 2.3MW turbines at locations 4 and 5 in addition to those approved on 31 August 2010.” That likelihood was quantified at para 3.13 of the record in the following terms: “Savills conclude in the Planning Report that there are no considerations that would have justified the refusal of planning permission for the additional two turbines at locations 4 and 5 assessed as at the relevant date and in the further Planning Report that the prospects of planning permission for the additional two turbines being granted assessed at the relevant date would have been in the order of 90%”.
(4) Accordingly, we are satisfied that, in terms of the record on which the case went to proof, the respondents had sufficient, and sufficiently clear, notice of what the applicants’ case was.
(5) For the applicants, evidence was given by Mr Lloyd Garvie, a former director, Mr Tim Neighbour BSc (Hons) FSA Scot MCIfA, Mr Andrew Jones BA (Hons) DipLA MLI and Mr Iain Pattenden BSc (Hons) MSc MRTPI and for the respondents by Ms Victoria J Oleksy BA (Hons) MA, Robert Bainsfair BLA BA (Hons) MLI and Mr Steven Black MSc MRTPI. We found all of them credible and reliable. There is in any event no factual dispute between the parties. All but Mr Garvie were expert witnesses and the differences between them were ones of professional opinion.
(6) The evidence began with Mr Garvie, as a former director of the applicants explaining the history of matters and setting the application in its context. Thereafter, as suggested by parties, the evidence was led according to subject matter, with the relevant witness for the respondent following immediately after the relevant witness for the applicants.
(7) Subject to a minor correction to para 46, Mr Garvie adopted his witness statement as his evidence-in-chief. It describes a background in property development and, since 2006, renewable energy. He told us how, in that year, he and a partner had bought 89 acres of land at Auquhirie for a windfarm. They had created Auquhirie Land Company (‘ALC’) as a vehicle for the purchase and paid £195,000 – its agricultural value – for the land. It had been his first venture into renewable energy but, one way or another, he has been involved in up to 20 other windfarm sites since.
(8) The site was affected by two sets of power lines and two underground pipelines, all with ‘stand-off’ distances within which wind turbines could not be erected. These were such that no more than three turbines could be erected on the land. In 2006 they had applied for planning permission for three turbines 100m in height but, on their architect’s advice, this application had been withdrawn in 2008 and replaced with one for the same number but at the reduced height of 76m, which application had been consented to by Aberdeenshire Council in December 2009. By that time, however, they had become aware that the neighbouring Clochnahill Windfarm, originally consented at a height of 76m, had obtained permission for an increase in height to 81m and that there were other windfarms in the vicinity which had obtained consent for turbines of 100m tip height: mention was made specifically of Tullo, Droop Hill and Glenbervie. So in November 2009 they had lodged an application for a height extension to 92.5m and it had been granted on 10 January 2011.
(9) At that time the political wind, nationally and locally, had been very favourable to renewable energy projects. Locally, Kincardine and Mearns Planning Committee had had a majority of Liberal, Independent and SNP members, all supportive of the Scottish Government’s renewable energy policies. Several other windfarms had been “consented” in the area.
(10) Against that background, it was common sense that Auquhirie would have been granted planning consent for the two other turbines which the site could have accommodated absent the 275kV power line. There was a gap between the Clochnahill turbines and the three consented Auquhirie turbines and these additional turbines would fill that gap. Also the Auquhirie land lay, generally, lower than Clochnahill, so turbines thereon, even if taller, would be less obtrusive.
(11) For those reasons he had begun to investigate the removal of the pylons and overhead lines. (Two lines traverse the land, one at 275kV and one at 132kV and he spoke of both but only the 275kV one affects the intended locations of turbines 4 and 5.) He wondered whether it would be possible to run them underground at reasonable cost. His solicitors had discovered that Scottish Hydro Electric Transmission Limited (“SHETL”) had neither wayleaves nor servitudes entitling them to have pylons and power lines crossing the land. So, on 22 June 2009, he had written to them requesting that they be removed or diverted, to which they had responded by applying for a necessary wayleave. Despite opposition, the wayleave had been granted on 12 October 2010.
(12) In the course of the application for the necessary wayleave, SHETL had asked Auquhirie to confirm the planning authority’s view of additional turbines on site. He had done so with Mr Robert McIntosh, a Planning Officer with Aberdeenshire Council, who had, in a letter of 12 October 2009, confirmed that, subject to the usual environmental studies, he was not aware of any reason why the additional turbines would not be consented. He had also contacted two of the councillors for the local ward and both had been supportive, expressing their preference for additions to existing layouts, such as Auquhirie, to sporadic single turbines across the landscape.
(13) On 31 August 2010 the planning committee of Aberdeenshire Council had approved the height increase application to 92.5m. Although conditions were attached, none of them was onerous or otherwise unacceptable.
(14) In cross-examination Mr Garvie acknowledged his lack of experience of windfarm developments, that a number of his sites had been ‘constrained’ by various restrictions – for example Ministry of Defence radar concerns at Frawney – and that, in terms of the price paid, he had not paid value for the building of five, or indeed any, turbines on the land. He also acknowledged that he had qualifications neither as a planner nor as a landscape architect. It had been when the ‘minded-to-grant’ decision had been made for the three turbines that he had realised that permission would probably have been granted for another two, but for the overhead lines.
(15) The 2006 application had been withdrawn because the authority had wanted an Environmental Impact Assessment (‘EIA’). The 2008 application had been accompanied by an EIA. That application had been for 76m turbines because his architect, Mr Neil Lindsay, had said turbines of that height would be “easier to establish” and less objectionable to the planners. He agreed that this had been the purpose of the application and that, the application having been approved, they had put in one for taller turbines. The Landscape Officer had objected on the ground that the turbines were now to be over 80m.
(16) Although he acknowledged that the acceptability of turbines from a planning perspective was dependent on a whole array of assessments, looking at the situation as an ordinary person, it seemed obvious to him that two more turbines were not going to create any additional impact. He acknowledged that the Reporter dealing with the application for the necessary wayleave had described the prospects of getting planning permission for turbines at locations 4 and 5 (the intended sites of the additional turbines) as “by no means certain, especially in view of the terms of the fourth paragraph of the letter dated 12 October 2009 from Aberdeenshire Council”.
(17) He doubted that it would take up to 18 months to obtain an EIA for the two additional turbines. They already had the environmental data and, at the time of the wayleave application, it would simply have been a case of getting a visual impact assessment done.
(18) He resisted the proposition, put to him repeatedly by Miss Wilson, that, had an application for two additional turbines been lodged, the planning authority would have had to adjudicate on whether five turbines were acceptable. As often as the proposition was put to him, he replied that the authority had already decided on three. The question for them would have been whether an additional two would have been acceptable. It would have been senseless for ALC to apply for five turbines as at October 2009, given the existence of the 275kV line. In fact, he thought, they would not have got consent for any turbines, had they applied for five. So they had applied for three.
(19) Under reference to para 3.17 of the wayleave Reporter’s report, ALC’s position had been that in any application to this Tribunal we would be considering the prospects of planning permission being granted and that, in the absence of planning permission, any compensation payable would have to reflect ‘hope value’ rather than actual value (production A6/17, para 3.17).
(20) In re-examination Mr Garvie agreed that it was a condition of the planning permissions granted for both the 2008 application (production A6/22) and the 2009 height increase application (production A6/31) that “[t]he scale, size and specification of the turbines, proposed colour and any future alterations to the development of the Hillhead of Auquhirie development shall be as closely coordinated with the neighbouring Clochnahill development as is reasonable”. These conditions had been satisfied.
(21) Mr Neighbour is a director of CFA Archaeology Ltd and a trustee of Archaeology Scotland. Since 1989 he has worked as an archaeologist in the Museum of London, for the West Yorkshire Archaeology Service and, since 1991, the Centre for Field Archaeology (‘CFA’), formerly attached to the University of Edinburgh and “spun-out” from the University in 2000. His primary role is managing and carrying out cultural heritage consultancy, including the production of cultural heritage chapters for Environmental Statements for planning applications for windfarms, having been involved in around 100 such applications and 11 planning inquiries.
(22) He had been responsible for the chapter on Cultural Heritage in the Environmental Statement prepared in connection with the application for planning permission for the three turbines (production A1/2.2, Chapter Six) and two further reports, one issued in June 2015 (production A2/3), and the other in January 2016 (production A3/2).
(23) In assessing prospects for planning permission for wind turbines at Auquhirie he would not start with a clean sheet: one always took account of approved turbines, in this case those at Clochnahill and the three already consented to at Auquhirie.
(24) He explained his methodology in assessing impact of development on monuments. He took into account the nature of the monument and its placing in the landscape and how the development would change one’s understanding and appreciation of the monument within its setting. This was now a three stage process: one had to consider the nature of the monument, then the importance of its setting and finally the significance of the effect of the development on the site. There was a difference between his methodology and that of Ms Oleksy who had prepared the respondents’ report; production R1/4, as was explained by Ms Oleksy herself at para 7.8 of her report.
(25) There was discussion of Ms Oleksy’s findings as set out in Table 6 of her report. She had reported a moderate effect on the long cairn at Bruxie Hill. A moderate level of effect was significant. That did not mean, however, that the effect was unacceptable, as the presence of so many windfarms in this area showed. He agreed with Mr Findlay that it was a “building block” in the assessment. CFA’s assessment of the effect of the three turbine development on Bruxie Hill had been one of low magnitude impact resulting in an effect of minor, not moderate, significance: production A1/2.2/para 6.6.11. AOC had been assessing the impact of five turbines but another two turbines would make no difference to his own assessment of the effect on Bruxie Hill.
(26) There had been a similar difference in treatment in relation to Brucklaywaird Farmhouse: AOC assessed the magnitude of impact as high (page 29 of production R1/4) whereas in the original Environmental Statement (ES) CFA had assessed a medium magnitude of impact and an effect of minor significance.
(27) Similarly with Carmont Hill, AOC had assessed medium magnitude of impact and moderate effect (para 6.40) whereas CFA had assessed high sensitivity, low magnitude and minor impact (para 6.6.16 of A1/2.2). Again two more turbines would make no difference.
(28) There was a similar divergence of view in relation to Fetteresso Castle, although there CFA has assessed the magnitude of impact as imperceptible whereas AOC had assessed it as medium; see page 29 of production R1/4 and para 6.6.14 of A1/2.2.
(29) Referring to CFA’s report of June 2015, dealing with a baseline including the three existing turbines on Hillhead of Auquhirie and assessing the effect of another two, (production A2/3), the overall change to visual effects would be minimal and would result only in a minor (and, therefore, not significant) effect or cumulative impact.
(30) In cross-examination the witness confirmed that the CFA contribution to the 2008 ES had been edited by him but written by a George Mudie; that Mr Mudie had also written their contribution to the 2009 Environmental Report (ER); that the 2015 report had been written by Mhairi Hastie and edited by Mr Mudie and that the January 2016 report had been produced by himself. He had inherited his colleagues’ assessment work. They had carried out on-site field studies as well as desktop work. You could do a certain amount without field studies, on the basis of “wirelines”. He accepted that the AOC report contained ZTV (Zone of Theoretical Visibility) maps showing visibility ranges, wirelines and photomontages. He confirmed that the 2008 ES had been dealing with three turbines of 76m height. The ZTVs referred to at para 6.2.4 of production A1/2.2 would be different for 92.5m turbines. He accepted that the assessment contained in this production had been done on the basis of theoretical views of the turbines.
(31) Chapter 6.1 of the ES dealt with direct effects – effects on sites in close proximity to the windfarm – while 6.2 dealt with indirect effects on external receptors. It had been these last that he had been discussing in evidence-in-chief. The indirect effects would include the fragmentation of the historic landscape and reducing views to or from the cultural heritage; para 6.4.10 of the ES.
(32) Miss Wilson took the witness through the hierarchy of sites of international/national, regional, local and lesser status shown in table 6.1 and he agreed that nationally important sites included ancient monuments, of which Bruxie Hill was one. Similarly she took him through the hierarchy of magnitudes of impact – high, medium, low, imperceptible and none – at table 6.3. He accepted that Carmont Hill should have been categorised as being subject to medium magnitude of impact because it was a site of regional significance. Fetteresso Castle was also of regional importance but he defended the classification of imperceptible magnitude of impact notwithstanding that it would be visible from the development and the development from it.
(33) He accepted that the assessments carried out by CFA in 2008 contained no discussion of cumulative impacts and that Historic Scotland (HS) had criticised the ES because of that. He also accepted that the discussion of the Bruxie Hill Long Cairn at para 6.6.11 of the ES did not explain how the surroundings contributed to the understanding of the monument in detail but said it was implicit. He accepted that, contrary to the requirements of HS as explained in their letter of 6 July 2006 (R1), not all scheduled monuments, archaeological sites and landscapes had been included in the ES: AOC had identified ones which weren’t. He accepted that this omission had been repeated in the CFA report of 2015. He denied these omissions were significant: no one else had identified significant effects associated with them. He denied that the AOC assessment was more robust.
(34) Another omission, he accepted, was the failure to assess direct as well as indirect effects, as required by said HS letter. Another requirement was the production of photomontages or wirelines where significant effects were predicted. He accepted that the wirelines produced, for example Figure 7.26 relating to Bruxie Hill, were not of the best quality and did not compare with the AOC report’s treatment of the site, with its photomontage and wirelines. These showed turbine 1 as clearly visible although the ES, at para 6.6.11, suggested it would have been at least partially screened by woodland. He agreed that the predicted effect of the woodland had been one factor in the CFA assessment of low impact.
(35) A similar comment, about the screening effect of woodland, had been made about Fetteresso Castle in the ES and had informed the conclusion of imperceptible magnitude of impact and minor significance whereas the AOC material (pages 16 and 17 of the appended figures) showed that only two of the three Hillhead of Auquhirie turbines were substantially screened.
(36) A similar exercise was carried out for Carmont Hill. Mr Neighbour entirely accepted the quality of the AOC photomontages and wirelines and that they had been carried out in accordance with accepted practice and guidelines but maintained that they supported a conclusion of minor detectable impact. Under reference to para 6.40 of the AOC report he agreed in part with the view that the cairn had high relative sensitivity to changes in its setting but that did not make him change his mind so far as magnitude of effect on the setting was concerned: that would still be low and CFA’s conclusion of minor significance (at para 6.6.16 of the ES) would remain. He disputed that the turbines would cause partial severance of the cairn from its setting: one would still be able to understand the relationship between them.
(37) The witness agreed with the HS comment, in its response to the ES dated 21 August 2008, production R2, that the ES had underestimated the impact of the development on the historic environment and that the cumulative assessment in respect of Castle of Fiddes and the Bruxie Hill Cairn should have been one of moderate significance. He agreed that this underestimation had never been corrected by CFA. He accepted that the revisiting of cultural heritage in the 2009 ER extended to only half a sheet and the assessment in respect of the effect of a change to a turbine height of 92.5 involved only revising the ZTV. In particular, the wirelines had not been re-run. The conclusion was that the increased height made little or no difference to the “viewshed” and resulted in no greater impact than had originally been assessed. The application for which the ER had been prepared had been for an increase in the permitted height only: not for an increase in the number of turbines. A combination of increased height and more turbines may or may not require a complete re-assessment; it depended on the circumstances. If there was no appreciable impact on the wider landscape there was no need for a detailed re-assessment.
(38) He had discussed with Mhairi Hastie the approach taken in her report of June 2015. That report would have taken account of the advice from HS following the ES but he accepted that no mention was made of it. He agreed that she had approached the exercise as one of comparison between the likely effects of the approved (and by then built) three turbine scheme and an alternative five turbine option. He accepted that the report’s assessment of cumulative effect was a single paragraph. It was a generic assessment but it covered what was needed for the key sites. It did not take account of effects on the four external receptors identified by Ms Oleksy as being the subject of moderate effect. He accepted the cumulative assessment was more of a description of how the totality of the turbines would be seen in the landscape. He did not think assessing the development as a five turbine scheme on a greenfield site in October 2010 would have led to a different conclusion. He also, accepted, however, that that was not an assessment he had carried out.
(39) Mr Neighbour was then asked about criticisms he had made of AOC’s work in his own review report of January 2016, production A3/2. He accepted that the AOC report did not conclude in terms that a five turbine scheme would have been unacceptable. Under reference to AOC’s treatment of Bruxie Hill (at para 6.38), he accepted that medium magnitude of impact would result in a moderate effect. Otherwise he disagreed with what was said there. He accepted that his own treatment of the subject was “lifted” from the 2008 ES. Whilst similar to what might be found in a visual and landscape report, it had to be remembered that we were dealing largely with visual effect. Miss Wilson put to him that the effect of the additional turbines would be to remove an area of open view between the Hillhead of Auquhirie and Clochnahill windfarms. He did not see it that way at all: you could still see the broad view across the landscape from the cairn.
(40) In re-examination the witness confirmed that he had visited the four sites in respect of which AOC had predicted the potential for significant effects. Nothing he had seen nor anything said in the AOC report had changed his assessment as set out in his January 2016 report.
(41) Methodology guidance had changed since 2008. At that time it had tended to move from assessing magnitude of impact direct to effect without as much emphasis as there now was on setting out one’s understanding of the monument. With reference to the HS requirement for wirelines and photomontages, that requirement only arose where significant impacts were predicted and none were predicted here. More generally, HS had suggested no concerns about the cultural heritage information provided in the ER nor had the local authority made any adverse comment on it.
(42) Ms Oleksy holds an honours degree in Archaeology and History (2002) and an MA with Distinction in Historical Archaeology (2003). She has worked with AOC Archaeology since early 2006. Her work includes preparing EIAs and she has been involved in a number of public enquiries over the past five years. She is the author of the AOC report in this case, dated 21 October 2015.
(43) There was a difference of opinion between her and Mr Neighbour of CFA in respect of four cultural heritage “assets”. Her criticism of the CFA approach was that if left out a significant step in the process of coming to a conclusion as to the impact of change on an asset. That step was consideration of how its surroundings contributed to the understanding, appreciation and experience of the asset in question. Because of that they were unable to say how the proposed change would affect that understanding, appreciation and experience. She illustrated this from CFA’s treatment of Fetteresso Castle but her criticism applied equally to the other three assets.
(44) She would expect EA work to take account of HS’s Scottish Historic Environment Policy (SHEP) issued in July 2009 and their draft consultation document on “Managing Change in the Historic Environment” issued the following month. She had taken both into account. “Setting” and its significance was explained at page 3 of the latter. Page 4 set out the three stages of assessment of the impact of a new development. It was stage 2 which was missing from the AOC material: “define the setting by establishing how the surroundings contribute to the ways in which the historic structure is understood, appreciated and experienced.”
(45) Lest it be suggested that the earlier guidance did not cover these three stages, Ms Wilson referred her to the Annex to the letter from HS dated 6 July 2006, production 1/1, and the witness pointed out the importance attributed to setting in the third paragraph. In respect of all the assessments produced by CFA, although the text described the surroundings of each asset it did not provide qualitative analysis of how the surroundings contributed to appreciation and understanding of the asset.
(46) In cross-examination she maintained that position: that, whilst it was true that the SHEP guidance at productions R23 and 24 had appeared after 2008, the relevant principles were set out in the 2006 letter. The description and explanation of the sensitivity of a view set out at page 23 of production R12, “Guidance for Assessing Wind Energy Developments” issued by Aberdeenshire Council in August 2005, was broadly equivalent to the approach which had been taken to these matters in 2008.
(47) With reference to her criticism of Mr Neighbour’s site assessments, she accepted from Mr Findlay that it was important to understand what it was he was trying to do. Under reference to R3/2 and the final paragraph of the section on “Approach to Assessment”, Mr Findlay identified that as being assessing “whether the change to the existing cultural heritage baseline setting caused by the addition of a two turbine extension to the approved (now built) three turbine scheme and the other approved schemes could be reasonably viewed as unacceptable, and hence, therefore, whether a five turbine scheme would have been unacceptable on cultural heritage grounds”. She agreed that, had she been addressing, for a client, whether there could have been five turbines at Hillhead of Auquhirie in October 2010, she would not have been starting with a blank sheet; there would have been the four turbines permitted at Clochnahill. She had investigated what view HS and the planning authority had taken of the indirect effects of these turbines on various heritage assets; the planning authority had found them acceptable and HS had made no objection. She agreed that that would be a potentially relevant factor in relation to turbines at Hillhead of Auquhirie but that it was not mentioned in her report. Similarly she agreed that the three turbines consented at Auquhirie would have been relevant and that HS had found only two significant impacts, and these cumulative, not individual. She pointed out that, out of the four heritage assets under discussion, HS’s remit would have covered only Bruxie Hill.
(48) The planning authority would, however, have been concerned with all four assets and had come to the conclusion that there was no significant impact on any of them. She probably agreed with that view in relation to Carmont Hill but had reservations about Fetteresso Castle. She agreed with HS’s assessment of Bruxie Hill as being subject to a cumulative impact of moderate significance.
(49) So far as her own work was concerned, she had not been expressing any view as to the acceptability of the proposals, only the significance of their impact. She agreed that she had not made any reference to what HS and the planning authority had thought about the 92.5m turbines in her report. Nor had she included reference to the fact that, as at October 2010, there was a resolution to grant in respect of 92.5m turbines at Auquhirie.
(50) Had she been advising a client in 2010 as to whether, from a cultural heritage perspective, planning consent was likely to be granted the existing permission in favour of three turbines would have been highly relevant but would not have displaced the need for an assessment of the other two. She accepted that in the hypothetical situation of advising a client in October 2010 against a background of consent for three turbines of 92.5m she would have advised an application for another two, not an application for five.
(51) Referred to para 7.11 of her report, she was asked whether the greater horizontal spread of turbines created by the addition of five turbines to the Clochnahill four was the most important factor on which she was relying. She explained the significance of this in terms of notably increased impact on elements of the setting of the assets which were relevant to understanding and appreciation of them. She accepted that the addition of two turbines to the three already consented at Auquhirie and the four at Clochnahill would not create greater horizontal spread. She thought that the four turbines at Clochnahill and three at Hillhead of Auquhirie would have significant cumulative effect but that the addition of another two would not add significantly to that already significant effect. She accepted that that in the foresaid hypothetical situation she would be advising her client that since there was already planning permission for three turbines at Hillhead of Auquhirie and since an additional two would cause no significant added effect, there was no impediment to the granting of permission for another two.
(52) Asked about the assets she had identified as coming within the ZTV at para 7.2 of her report, she said she had identified the ZTVs for both the two turbine and the five turbine schemes and that no additional assets were brought into play by the five turbine scheme.
(53) In re-examination the witness, asked what she had set out to assess, said that she had assessed the effect of the addition of five turbines of 92.5m height to a greenfield site at Hillhead of Auquhirie, taken together with the four turbines at Clochnahill. She confirmed that increase in the horizontal spread was not the only factor she had considered: she had also considered the greater number of turbines. Those additional turbines would be at locations where people’s capacity to understand the four assets she had identified as being at risk of significant effect would be diminished.
(54) As to the advice she would have given to clients in October 2010, she confirmed that she understood that only “minded-to-approve” decisions had been taken in respect of the three Auquhirie turbines at that time.
(55) Asked as to whether CFA’s June 2015 or Mr Neighbour’s January 2016 reports corrected the defect in the approach to assessment which had been evident in the earlier work, she thought not the 2015 report. The January 2016 report followed a three stage approach but still missed out a crucial part of the second stage; the need to understand and explain how the assets related to their settings.
(56) Mr Jones is a Senior Landscape Consultant with ATMOS Consulting and holds a BA (Hons) from Leeds Metropolitan University (1995), a Graduate Diploma in Landscape Architecture from the same university (1997) and is a Chartered Member of the Royal Chartered Institute of Landscape Architects. He has held a number of appointments as a landscape architect and took up his present position in 2008. He has extensive experience in the renewable energy sector, including windfarms, and has been involved in the preparation of over 50 Landscape and Visual Impact Assessments (LVIAs) for such developments across Scotland. He is the author of an LVIA for a proposed 5 turbine layout at Hillhead of Auquhirie, prepared in April 2014, which is Appendix 1 to the planning report prepared by Savills for the applicants in this case, and a rebuttal report dated January 2016 (production A3/3).
(57) Mr Jones gave evidence that Atmos had been responsible for the LVIA prepared for the purposes of the 2008 EIA and the 2009 ER but the work had actually been done by one Nigel Buchan, a self-employed consultant, on a sub-contracted basis. The April 2014 report referred to above, however, was his own work.
(58) By the time it was written the three consented turbines at Hillhead of Auquhirie had been built. Although called an “LVIA for a Proposed 5 turbine layout”, para 1.1.1 tells us that the assessment focuses on “the additional (cumulative) effect brought by the larger five turbine scheme over the three turbines previously consented, essentially an increase of two turbines to the existing scheme”. Account is also taken of the Clochnahill windfarm.
(59) After setting out the author’s approach, methodology and what is called the “Landscape Baseline”, predicted effects are discussed at para 1.4ff, from which it is convenient here to quote the following:
“Where the additional turbines are visible, the views toward them would range in distance, orientation, elevation and extent. However, they would almost wholly be seen within the context of [the] consented windfarm development cluster at Clochnahill and Hillhead of Auquhirie and would not add any notable additional visual exposure across the area. This is demonstrated by the ZTV in Figure 3. As a result they would not provide a new built element or separate focus in the LCT and would only be seen as a partial alteration to the consented development on the hillside. While they would add to the notable influence in the immediate context up to 1km to the northeast and add some density to the general composition of existing turbines, from most points they would not fundamentally extend the composition of turbines. At times they would also help to consolidate the two slightly separate disconnected clusters into a single combined windfarm element. From most points to the south, they would then be seen at a more notable point to the rear of the Clochnahill ridge. The open, rolling character of this LCT would help to anchor the turbines into the open landscape, provide some shelter and screen the full height of the turbines from the majority of sensitive receptors to the south.”
(60) The additional two turbines did not have significant effects on the ZTV, no new sites being brought within its purview. The fact that the highest turbine tips were to be at Clochnahill explained, to a large extent, the lack of significant impact caused by two additional turbines at Hillhead of Auquhirie.
(61) For his April 2014 report he had selected four representative viewpoints from which to assess the visual effects of two additional turbines; Hillberry, the A90 road at the Memorial to Burns’s father, Tewel Cottage and Bardspark. The results are shown at Figure 8 on pages 12-13 of his report.
(62) Mr Findlay took the witness to criticism of the EA’s treatment of viewpoints at para 5.1.7 of the report prepared for the respondents by Mr Bainsfair of Ramboll Environ, where the writer states that the ES underestimated the magnitude of change experienced at the Burns Memorial when compared with the A90 at Upper Criggie. Mr Jones thought Mr Buchan’s different treatment of these (the significance of effects at Upper Criggie being assessed at moderate-major and those at the Burns Memorial as moderate) may be accounted for by the range and proportions of the view and intervening features, such as the chain-link fencing seen from the Burns Memorial.
(63) Mr Bainsfair had also disagreed with Mr Buchan’s assessment of the cumulative effects at viewpoint 6, the A92 at Catterline, as moderate-major. He did not think there would be any significant cumulative effects and thought there would be no significant individual effects at this location. Mr Jones could understand why Mr Buchan had found the cumulative effect significant but he himself would not have “gone as far in the same direction”. Mr Buchan had erred on the conservative side.
(64) Another criticism made in Mr Bainsfair’s report was that the Atmos methodology was inconsistent with Scottish Natural Heritage (SNH) guidance in its arithmetical approach. Mr Findlay took the witness to the Guidelines for Landscape and Visual Impact Assessment, production A6/33, at para 7.36 and the reference to the magnitude or scale of visual change being described by reference to, inter alia, the proportion of the view occupied by the proposed development. Mr Jones considered this to be an attempt to introduce a degree of scientific methodology to an otherwise subjective assessment: Mr Bainsfair’s criticism was not justified.
(65) At para 5.2.2 of his report Mr Bainsfair had criticised the ER for not having considered the relationship between the Clochnahill and Hillhead of Auquhirie schemes. This was rejected by the witness under reference to Appendix 2, paras 5.15, 5.25, 5.26 and 5.27 of the ER.
(66) In cross-examination Mr Jones was clear that, although he had not been involved in the preparation of the EA and ER, he largely agreed with their scope, the methodology used and the assessments arrived at. There were some individual conclusions on which he differed slightly but that was all. He had spoken to Mr Buchan but that was after the various reports had been written.
(67) Under reference to the LVIA Guidelines he agreed that an LVIA would have to be carried out for the five turbine programme, that such an assessment had not been carried out, that the process of environmental appraisal was an iterative one involving consultation and that it should also consider issues of mitigation. He agreed that there were no statutory consultation responses, particularly from SNH, dating from 2010, nor from members of the public.
(68) Under reference to the quantitative and qualitative approaches discussed at paras 2.10 and 2.11 of the Guidelines, he agreed that two landscape architects could come up with two different opinions about the significance of effects from the same viewpoint. There would always be opposing views. He agreed that assessments should be supported by clear evidence and reasoned argument (para 2.12 of the Guidelines). It was put to him that the absence of visualisations might affect the weight to be given to an assessment but he disagreed; it depended on what stage in the iterative process the LVIA was at.
(69) He agreed that there was nothing in the ES or ER which demonstrated the modification of design to reduce visual impact. Under reference to para 2.3.2 of the ES, he agreed that the optimum turbine height had then been thought to be 76 metres. That was to fit in with Clochnahill; the turbines had to be of similar height, scale and design, although the reference there was only to height. Both SNH and the Environmental Officer of Aberdeenshire Council had agreed with that.
(70) Reference was made to the various layout iterations shown in Figure 2.2 attached to the ES. Turbine 1 remained in the same position throughout and 2 and 3 remained within the area between the two overhead power lines. The constraints of the site were considerable. There was therefore limited opportunity to change locations to take account of environmental considerations. He agreed that the ER contained no discussion of design-led response to anything. He agreed with the principles set out by Mr Bainsfair in his discussion of design guidance at paras 4.1.1 and 4.1.2 of his report and was familiar with Planning Advice Note (PAN) 45. Under reference to the latter, he agreed that public concern was a recurring feature of windfarm planning applications and that a large proportion of objections related to visual impact. He agreed that para 72 of PAN 45 echoed the concern of the Environmental Officer in this case that the turbines did not tie into the surrounding landscape and that the capacity of the landscape to accommodate the development was a defining issue for SNH, the Scottish Government and Aberdeenshire Council.
(71) Passages from the 2010 Aberdeenshire Council planning report (Appendix 1 to the respondents’ planning report) were put to him, saying that the turbines were too tall for the landform, that they would be seen as a dominant and probably overbearing element in the landscape and that it was therefore essential that the Hillhead of Auquhirie and Clochnahill schemes be fully co-ordinated so that adverse landscape impacts were minimised or negated (paras 4.19.1 – 4.19.4). To Mr Jones, what those passages were saying was that the impacts were potentially significant but not necessarily unacceptable. He accepted that, whereas these matters were discussed at section 4 of Mr Bainsfair’s report, they were not specifically discussed in his own. He accepted that the lack of qualitative discussion in the ES continued right through into his own evidence.
(72) The reference to “a strong reason in relation to cumulative assessment issues and scheme design best practice, that the current Hillhead of Auquhirie application should not be viewed positively” at para 4.19.5 of the planning report was based on the height difference between the Clochnahill turbines (81m) and the proposed and built Auquhirie turbines (92.5m) but other design features also had to be considered in regard to scale – landform, visual skylines guidance (to which the development conformed), blade rotation and so on. He accepted that differences in rotation speeds were particularly unacceptable; they increased the visual effect. He accepted that SNH’s lack of objection depended on the same design and scale being deployed as at Clochnahill. He accepted that before such co-ordination could take place, the make, model, scale, design and rate of rotation would have to be known and that it was not known when the planning application for Hillhead of Auquhirie had been lodged. He agreed that acceptability depended on whether the appearance of one windfarm could be achieved.
(73) Under reference to para 6.6ff of the planning report, the witness accepted that officials considered that the proposal departed from planning policy in terms of height of the turbines, unacceptable impact on residential amenity and SNH’s and the Landscape Planning Officer’s doubts about the capacity of the landscape to accommodate further development. He accepted that these concerns, although referred to, were not discussed in his reports. With particular reference to his statement at para 2.4 of his rebuttal report that “A subsequent application for an additional two turbines … would not have had to answer the same points given the planning committee’s 31st August 2010 determination on the issue”, he accepted that he did not know what the Council would have done but he thought the way these points would be addressed would perhaps have been different; a more detailed LVIA would have taken note of the Planning Service’s observations. He accepted, however, that both the Landscape Planning Officer and SNH regarded compatibility of design as between Clochnahill and Hillhead of Auquhirie as essential mitigation if the development was to be approved.
(74) As a general principle how turbines were grouped was also a relevant factor; PAN 45, para 79. That was not just a consideration for Aberdeenshire Council, it was Scottish Government policy. Under reference to PAN 58 (production R8) at pages 11-12, he agreed that all the steps set out there would require to be undertaken in the course of an EIA for a five turbine proposal. He estimated that this process would take six months. He agreed with the guidance contained in SNH’s “Siting and Designing windfarms in the landscape” published in December 2009, paras 1.11, 2.2, 2.8 and 2.9. The last of these says that Design Statements should indicate how existing nearby windfarms or cumulative impacts have influenced the design and layout of a new proposal. He denied that there was nothing about that in the ES and his own work; his own report spoke of compatibility of layout and scale. Paragraphs 3.6. 3.14, 5.4 and 5.12, dealing with turbine properties such as height, colour and individual design, turbine size, cumulative design objectives and the relationship between inter-visible windfarms, were likewise put to him and he agreed with them all.
(75) Senior counsel’s questioning then reverted to para 2.4 of the witness’s rebuttal report and the suggestion that it would not be necessary to do a five turbine assessment but he maintained that what would have to be assessed and consulted on was the effect of the two additional turbines. The first step would be to consult the authority about the scope of the assessment and in many cases such a request would include a request that matters which had already been consented be included as part of the baseline. He resisted a suggestion that it was inconceivable that, in a hypothetical situation where an authority was being asked to grant permission for an increase from three turbines to five, they would do anything other than consider the five and also those to be built at Clochnahill; he knew of cases where the strong likelihood of things being built was allowed to form part of the baseline. He did, however, accept that the effect could not be assessed without looking at all five turbines; that would have to be done at some point in the LVIA.
(76) There was further questioning along these lines with reference to paras 64 and 65 of PAN 58 involving senior counsel pressing the need for an assessment of the development as a five turbine development and the witness maintaining it would be an exercise in assessing the effect of an additional two against a baseline including the three already consented (to minded-to-grant stage). It would be pointless to repeat it.
(77) The witness’s position at the close of cross-examination on this matter can fairly be stated as being that, whilst the objective of the exercise would be to assess the incremental effects of two additional turbines, at some point in the LVIA assessment process the effect of all five turbines would have to be looked at.
(78) He accepted that, in carrying out visual landscape impact assessment, the proportion of the view taken up by the proposed development was not the only thing that mattered: angle of view, distance from viewpoint, the extent of the area over which changes were visible and vertical proportion were also relevant. None should be over-emphasised.
(79) Finally, in cross-examination, Mr Jones agreed that there could be a range of professional opinion on these matters.
(80) In re-examination, Mr Jones was taken to SNH’s response to the ES, production A6/18. They had not objected to the proposal and their full advice was set out in Appendix B. He confirmed that SNH required, as a matter of mitigation, that the small scale and specification of turbines implemented at Clochnahill should be used for the Hillhead of Auquhirie development. Under reference to production A6/21, the minded-to-grant decision of 24 March 2009, it was noted (para 2.6) that an increase in the height of the Clochnahill turbines to 81 metres had been consented to in June 2008. He agreed that what Aberdeenshire Council had required was close coordination with Clochnahill, not a high degree of uniformity. Having visited the site, Mr Jones was of the opinion that this requirement had been achieved. There was no noticeable difference in rotational speed of the turbine blades.
(81) Reference was made to the SNH response in relation to the application for consent to increase the height of the turbines at Hillhead of Auquhirie, production A6/26, noting their “broad agreement” with the assessment of landscape, visual and cumulative effects and that increase in turbine height was unlikely to give rise to any additional significant effects outwith 4km of the development. SNH had had no concerns about design, layout, rotational speed or the like.
(82) Mr Findlay dealt with the Planning Service’s reasons for recommending refusal of the application for consent to an increase in height contained in the report to the Kincardine and Mearns Area Committee meeting of 31 August 2010. In addition to height itself, these were (i) the re-location of turbine 1, now closer to residential dwellings than it had been, and (ii) cumulative impact (see paras 6.7 to 6.9 of the report). So far as location was concerned, Mr Jones explained that turbines 4 and 5 (the two additional turbines) would be located further away from residential dwellings even than turbines 2 and 3, never mind turbine 1. So far as height and cumulative impact were concerned, the decision taken on 31 August 2010 had been that the Committee were minded to approve the increase in height; production A6/28. Against that background, in October 2010 he would have used a baseline which included the four consented turbines at Clochnahill and the minded-to-grant decision for three turbines at Hillhead of Auquhirie.
(83) As to whether, in his April 2014 report (Applicants’ Planning Report, Appendix 1), he had been assessing the effect of a five turbine or a two turbine development, his summary at para 1.4.1 was in relation to five turbines. That was made clear in the Summary of Additional Cumulative Effects at pages 14 and 15 of the report.
(84) In his January 2016 rebuttal report he had concluded that that there were no additional effects highlighted in the Ramboll reports which could reasonably have resulted in the refusal of permission, whether the project was viewed as a two turbine extension or as a five turbine scheme, so he had looked at matters both ways.
(85) As to whether the ES had taken account of the need to avoid conflict with Clochnahill, he agreed with Mr Findlay (much of the re-examination consisted of Mr Findlay leading the witness to material countering the criticisms made of the Atmos reports in cross-examination) that para 7.3.2 expressly set out as an objective the need to avoid “complexity and visual confusion, taking into account the adjacent turbines of Clochnahill windfarm”. Likewise para 7.2.41-42 made clear that regard had been had to PAN 45.
(86) As to compatibility of design, his visualisations had used the consented tip and hub heights for Clochnahill and the minded-to-consent heights for Auquhirie. One might notice such design differences as there were between the Auquhirie and Clochnahill turbines very locally, perhaps within a kilometre, but further afield, for instance at the A90 viewpoints, they would not be significant for either passing motorists or residents. Indeed he thought the increased height of the Hillhead of Auquhirie turbines might be an improvement.
(87) “Stacking” and overlapping of turbines was possible wherever you had two or more turbines but here it was not a problem when viewed from the predominant north/south perspective. Also, in most of the important views, turbine 1 was not seen as an outlier. Overall the addition of turbines 4 and 5 had the potential to enhance the broader landscape in some respects.
(88) Mr Bainsfair is a Chartered Landscape Architect of over 20 years’ experience and holds the degrees of Bachelor of Landscape Architecture and BA (Hons) in Landscape Design from the Metropolitan University, Manchester. He has worked across a range of sectors, including energy, and has extensive experience in the preparation of LVIAs. He is currently Landscape Architecture Manager with Ramboll Environ UK and, in that capacity, prepared the “Technical Review of Landscape and Visual Issues Hillhead of Auquhirie Windfarm” which is item 3 in the respondents’ bundle of expert reports. He explained that a technical review was an examination of what others had done for rigour, accuracy and methodology, reviewed against relevant guidance and professional standards.
(89) He had not heard anything in Mr Jones’ evidence which caused him to revise his opinion that both the ES and ER had underestimated the effects of the project.
(90) The guidance and principles which had informed his own report (paras 4.1.1 and 4.1.2) were wholly consistent with SNH guidance. That guidance (production R22), issued in 2009, had been applicable in 2010. Miss Wilson took him through parts of it to do with design options. Design objectives should be identified and then applied consistently. He did not think landscape and visual impact had been taken into account in the ES and ER; instead the principal drivers had been the non-landscape constraints on the site.
(91) There were differences between Clochnahill and Hillhead of Auquhirie in terms of layout and disparity in turbine typology. This involved a conglomeration of issues; dimensions, hub height, rotor and type of machine used and its specific geometry. The photographs in the SNH guidance (at page 11) illustrated the sort of difference there could be as between different kinds of turbine. The addition of two turbines at Auquhirie would exacerbate the effect: because the turbines would be closer together the contrast would be more obvious. These differences would not be immediately noticeable but “if you were sat in your garden” you would see them. Here, one set of turbines (Clochnahill) were Enercon turbines and the others Siemens. Siemens turbines were more elegant, Enercon’s had a much more substantial column and blades and the curving of the blades was more apparent. Enercon’s also had very distinctive nacelles.
(92) Mr Jones’ suggestion that additional turbines would be an enhancement involved the notion that they would be infilling a gap between the Hillhead of Auquhirie turbines and those on Clochnahill but the success of that effect was predicated on the use of consistent design and selection of similar turbines etc.. In any case the five turbine layout would lead to a greater degree of stacking than would be the case with only three.
(93) It was not his experience that one could notice the differences between the two kinds of turbine only in close proximity to them: the differences were visible from the A90, at Upper Criggie and the Burns Memorial, over a kilometre away. The differences were also much clearer on site than they were in Mr Jones’ photomontages (accompanying table 7a of his April 2014 report) which relied on differentiations available in software packages intended to illustrate this sort of thing (although he thought the 2016 photographs showed the actual turbines.) As well as the A90 locations he had identified differences between the two windfarms from Bardspark, 1.138 metres away.
(94) The effect, even of the original scheme, on residents in the locality would be significant in visual amenity terms; whether it would be overbearing he could not say. He had not carried out surveys at the individual properties concerned. The standard procedure would be to study and analyse visibility in relation to a number of “Lavender tests”. That analysis would take account of cumulative schemes visible from the viewpoint. So, if doing a study of five turbines at Hillhead of Auquhirie, one would have to include the four at Clochnahill. Mr Jones’ “LVIA for a Proposed 5 Turbine layout” was in fact an assessment of the difference between five and three turbines, so it was an assessment of the effect of two additional turbines in all but name. One could perform a true five turbine assessment only by assuming a bare site.
(95) With reference to the SNH response of 18 December 2009, production A6/27, although objections from SNH to planning proposals were rare they often expressed concerns. Here they were expressing concern about the scale of the development and height of the turbines. “Scale” here was in relation to the landscape. The Environment Officer had expressed similar concerns about the height of the turbines and their scale in relation to the landscape as well as concerns about their cumulative effect, taken with the turbines at Clochnahill; production A6/28. The assumption in the ES that the speed of rotation of the turbines would be similar was not correct.
(96) Fragmentation was to be avoided and the position of turbine 1, as an outlier, was of some concern. It would not have been unusual for a planning authority to ask for such an outlier to be removed. It was also important to avoid stacking and anything else which was going to add to the contrast within the scheme.
(97) At the close of examination-in-chief Mr Bainsfair deleted, as inaccurate, the final sentence of para 6.1.2 of his report.
(98) In cross-examination he confirmed that he had visited the site twice, for a day on each occasion. Difference in speed of rotation was visible on both occasions but he had not mentioned that in his report because he could not be sure that it was to do with rotor speed, rather than other factors. He did not have the expertise necessary to assess that.
(99) The error which he had just corrected had been brought to his attention by Mr Black, the respondents’ planning expert, just prior to these proceedings. [The sentence deleted wrongly asserted that inconsistencies between the development and the landscape and design policies and guidance applicable at the time had been raised as an objection by Aberdeenshire Council’s Landscape Planner in his consultation response.] Mr Findlay suggested to him that para 5.1.16 of his report required to be corrected for the same reason and that this error had infected his whole report and his judgment. He resisted the latter suggestion: his judgments had not been affected by the Landscape Planner’s position. The error at para 5.1.16, said Mr Findlay, was to suggest that his criticisms echoed comments made by SNH in response to the 2008 application, whereas they had said nothing of the kind. Giving his evidence, he could not recall the truth of the matter so Mr Findlay took him to the SNH response at production A6/18.
(100) Mr Bainsfair agreed that it was usually when issues of national importance arose that SNH objected to a development. Where they did not object but had concerns, they would comment on those and their comments could, sometimes, influence Reporters to refuse permission. He agreed that on the second page of this production (being the SNH response to the 2008 application, dated 3 October 2008) they expressed no concern about anything, including the quality of the ES, which was quite contrary, he accepted, to what he had said in his report.
(101) At page 7 they said that the development did not impact on any nationally designated landscapes and agreed that the effects would not be significant. He disagreed with that. He agreed that he had no support from the planning officers for that in relation to the 76 metre turbines.
(102) He accepted that he had not carried out a detailed survey of impact on an Area of Landscape Significance (‘ALS). He was accused of lack of rigour; “no assessment, no viewpoints, no rigour?” He disagreed: he had carried out a field survey and drafted wirelines, albeit they were not in his report. He accepted that SNH’s acceptance of the conclusions of the ES was wholly at odds with his report. Their agreement that the ES had been right to concentrate on the relationship between Hillhead of Auquhirie and Clochnahill was likewise, he accepted, contrary to the thrust of his report. However, he had been involved in many cases where sites of national importance were affected yet SNH had not objected so he doubted that their lack of objection on this occasion amounted to an endorsement.
(103) To the SNH suggestion that the three turbines would complement those at Clochnahill and reduce visual clutter, Mr Bainsfair thought that, at a distance, the perception would be of a tighter cluster. The impact of two additional turbines viewed from the Stonehaven War Memorial would not be hugely perceptible. But there was potential for increased effects, for instance at the roadside at Catterline, which was not, he accepted, within the ALS. He had not suggested any other viewpoints in his report: he had used the ones in the ES so as to enable direct comparison.
(104) He had seen production A6/19, the Environment Response to the 2008 application, although it was not referred to in his report. He accepted that it did not contain anything supporting his conclusions at para 5.1.15 of his report. Nor was there anything in A6/27, the Environment Response to the height increase application, dated 10 February 2010, which supported his view. Likewise he accepted that there was no criticism of the EIA by the Planning Officer in the 24 March 2009 Committee Report, which collated and discussed the responses, production A6/21. Nor did it contain a request for more information or a suggestion that the ES was inadequate.
(105) The condition in the full planning permission, production A6/31, relating to the need for close coordination with Clochnahill was put to the witness and he accepted such conditions were a means whereby a planning authority sought to control a development for which permission was being granted. Planning officers had continuing ability to control this. He presumed that the planning officers in this case were satisfied that there was sufficient coordination but his own opinion was that there was not.
(106) He accepted that the SNH response to the 2009 application, production A6/26, contained no criticism of the ER. He agreed that it was a reasonable approach to concentrate on the height difference and its effects in the ER. Although the response said that cumulative effects were not significant that was qualified by saying that significant effects were confined to a relatively limited area. Because of the nature of the viewshed there was a potential for effects beyond the 4 km radius referred to in this response. Again he had the roadside at Catterline in mind but, even there, he thought the effect would be marginal rather than significant. He confirmed that he had identified no other viewpoints affected by any concerns.
(107) In relation to the Environment Response to the height increase application, production A6/27, Mr Bainsfair confirmed that there was nothing in this response about outliers, again contrary to his own report. His was, he said, a different perspective. Although there was no comment about turbine 1 being an outlier in this report there was reference to that sort of concern in Aberdeenshire Council’s policy documents. He accepted that there was no complaint that the ER lacked information required for a proper response. However, the Environment Officer had concluded, in A6/27, that the proposed turbines were too large in relation to the landscape and that there was a distinct variation in height as between them and the ones at Clochnahill. The witness agreed with all of that.
(108) He had not identified any properties other than the one residential property identified in the Planning Report to the Committee of 31 August 2010 which would be impacted by two additional turbines which were going to be further away from that property than the other turbines. But he was reluctant to concede that turbines 4 and 5 would not contribute to any overbearing effect the existing turbines may have: no one had tested it.
(109) He agreed that notwithstanding the three reasons for refusal advanced by officers – too high for surrounding topography, turbine 1 too close to a residential property and cumulative effect – the Kincardine and Mearns Area Committee had granted the 2009 application by its decision of 31 August 2010; production A6/28. He accepted that this decision represented the view of the Council. He resisted the suggestion that the ultimate test of acceptability was whether what was proposed got permission. The proof of the pudding was in the eating; acceptability had to be tested in terms of what was built, what was on the ground, what was perceived in the landscape. He adhered to his view that there had not been sufficient explanation of design and layout in Mr Jones report of April 2014.
(110) He accepted that there was nothing in section 2 of his report which suggested omissions in the ES or LVIA but section 2 was just setting the scene. In section 3 he was saying the baseline used in the ES was inadequate. No criticism of the ES or ER was implicit in para 3.1.3 of his report, which lists the key elements of the baseline of the landscape. His criticism was more to do with lack of analysis.
(111) His report, at sub-para 5 of para 3.1.3, pointed out that the area he had studied contained an ALS but that the dataset for this designation was unavailable and there were no clearly defined special qualities which were said to be features of this area. He would, nevertheless, have expected more discussion in the ES of what was potentially more special about this area than the rest of the landscape. He did not accept that SNH’s view on the matter (no significant impact on that area) was conclusive of the matter; he had been involved in a case in Ayrshire where a development had very localised effects and the ALS had no defined special qualities but the local authority and the Reporter had found against the development for want of detailed consideration. He thought there was potential for localised effects along the coastline in this case.
(112) With regard to windfarm design, section 4 of his report, the key thing he had been concerned with was the gap between the turbines and some minor differences in their alignment. There were two gaps: a gap between turbines 2 and 3 and turbine 1 and a gap between 2 and 3 and the Clochnahill turbines. Filling the latter would not fill the former. It was important to get both layout and consistency of typology right. Layout affected stacking. Stacking could occur with any height of turbine and it was the job of design to minimise it by focusing on the most sensitive receptors and prioritising them.
(113) He thought Mr Jones’ report of January 2016 went only part of the way to meeting the deficiencies he had identified. He defended his conclusion at para 4.1.9 that the design approach adopted in the LVIA was inconsistent with Aberdeenshire Council’s Supplementary Guidance and SNH guidance, even if there was no complaint of inconsistency with guidance in their responses.
(114) Moving to chapter 5 of his report – Residual Landscape Effects – his criticism at para 5.1.2 was that the ES proved scant consideration of how the development would alter the special qualities of designated areas or the key characteristics of the landscape. He himself had been criticised in the past for not addressing things that were going to be changed by a development.
(115) It was unwise to extrapolate from a limited number of viewpoints. His criticisms were to do with how sensitivity of landscapes had been ascribed - high sensitivity made it more probable that there would be significant effects – and how information had been extrapolated.
(116) He resisted a challenge to his conclusion, in the final sentence of para 5.1.2,; that “localised significant effects, including cumulative effects, are likely within the ALS designation between Aberdeen and Edzell”. One thing that characterised the view across this area was the role of the hinterland, with very prominent ridgelines. There was the potential for significant effects within a radius of around 5-6 km from placing large structures on that skyline. Taking a cautious approach, he was saying only that there was potential for effects.
(117) He was asked about his criticisms of the treatment of Designed Landscapes in the ES. It seemed to him that nothing in the way of a comprehensive assessment of effects on these landscapes had been done. He would at least expected places like Glenbervie House to have been visited but he accepted that he had been there himself and found significant effects unlikely.
(118) As to his criticism, at para 5.1.8 of his report, of over-reliance on statistical analysis in the assessment of cumulative effects at viewpoints, under questioning from Mr Findlay he accepted that the treatment of the viewpoints in the ES also involved a significant amount of description as well as arithmetic. He was prepared to qualify his criticism but not withdraw it.
(119) With reference to his criticism, at para 5.1.11, of the treatment of residential receptors, he would have expected detailed assessment of individual properties and, although the planning authority had not requested additional assessments, he thought his remarks germane.
(120) With reference to his comments re the treatment of effects on road and railway routes at para 5.1.12 of his report, what was missing from the ES was what SNH would call “the journey” – route analysis with quite a lot of information. This was absolutely vital given the planning authority’s concern around the A90 corridor. It did not, in his view, give the planning authority enough information although he accepted that neither the Planning Officer nor SNH had asked for more. The exercise he had carried out was a technical review. It was based on accepted standards and colleagues would expect a greater provision of evidence to the planning authority. He accepted that the scheme had been consented and that other people did not seem to have had a problem with this lack of information but that remained his view. He modified his criticism of the lack of consideration to potential inconsistencies between the development and Clochnahill at 5.2 of his report to the extent of substituting “insufficient qualitative consideration”.
(121) With regard to the “significant effects” said, at para 6.1.5, to have been identified by his review, he accepted that it would be fair to change that to “potential significant effects”.
(122) Wind speed could cause a difference of rotational speed, hence his caution about attributing the difference to rotor design, but difference in rotation speed amplified the difference between the Enercon and Siemens designs. Differences of geometry could be apparent even when travelling at 60-70 mph along the A90. Differences could certainly be apparent without being significant but to his mind these differences were significant. The differences between the two sets of turbines were so great that he could not bring himself to say that that there was anything but a clear distinction. He would not presume to say that, in granting consent, someone had made a mistake but, to his mind, these differences and their effects were significant. In his view another two turbines would potentiallyexacerbate the existing effects.
(123) In re-examination Miss Wilson sought to clarify what the witness meant by his use of “potential”. In short, his answer was that he was talking about “potential significant effects”.
(124) Under reference to the section on mitigation in Appendix B of SNH’s response of 3 October 2008, she clarified with him that their lack of objection was conditional on the use of the small scale and specification of turbines implemented at Clochnahill being used. That comment reflected his own concerns about the scale of turbines used at Hillhead of Auquhirie. Similarly the comments in the Environment Response of 10 February 2010 (production A6/27) to the effect that the development should not be viewed positively because of the differences between its turbines and those at Auquhirie reflected his own concerns. What the officer went on to say there about the height being excessive in relation to topography and the application not complying adequately with SNH guidance was wholly consistent with his own position. It was also noted that the recommendation in the “Closing comments” section was that, in the event of the committee being minded to approve the application, details of wind turbine rotation rates for both windfarms should be supplied prior to a final decision being taken, not as a condition of planning permission. The views of the planning service expressed in that report were entirely in accord with his own. They had been dealing with a proposal for three turbines at 92.5 metres; a proposal for five would attract similar comments. It also had to be remembered that the SNH response had been to a project involving only three turbines.
(125) Mr Bainsfair explained his understanding of “overbearing” in the context of visual effect on residential properties. It involved unavoidability of the visual effect, such that a house – and possibly a collection of houses – became unattractive to live in, with consequences for their future use. Properties most at risk were within a radius of 800 metres to a kilometre. He could not, however, say what the effect of two additional turbines at positions 4 and 5 would be. It required further consideration and he would expect surveys of receptors to be carried out as part of that.
(126) Ms Wilson invited him to explain more fully what he had meant by the absence of qualitative debate from the ES and ER. It involved consideration of all issues about the land and its scenic quality and involved picking apart the landscape’s key components and assessing the effect of the development on these. He was not satisfied that this had been dealt with sufficiently in this case. The whole process of LVI assessment was iterative, not linear, and issues raised invited further investigation.
(127) Mr Pattenden holds an honours degree in Estate Management from Heriot Watt University and an MSc in Urban and Regional Planning from the University of Strathclyde. He is a Member of the Royal Town Planning Institute, a Member of the Royal Institution of Chartered Surveyors and an Associate Member of the Institute of Environmental Management and Assessment. He has practised as a Chartered Surveyor since 2001 and joined Savills, of which he is now a director, in 2007. His practice involves providing planning advice for various development sectors including energy projects and he has been involved with the planning aspects of over 25 windfarm developments over the past 10 years.
(128) He confirmed that he had prepared two reports for this case. The first was the applicants’ Planning Report (production A1) dated 15 April 2014. It addressed a five turbine layout. The second was dated 22 January 2016, production A3/1. The purpose of this second report had been to “consider the prospects of an additional two turbines (Turbines 4 and 5) being granted planning permission at the relevant date of 12 October 2010”. At that time Aberdeenshire Council had issued their minded-to-grant decision on the three turbines at a height of 92.5m and at the relevant date the resolution of the matters outstanding before full planning permission was granted “would have been considered a matter of formality” (para 2.5). His conclusion, taking account of the second CFA and Atmos reports, was that “there would be no material considerations that would justify a refusal of the additional two turbines”. The same conclusion would apply to an application for five turbines of 92.5m “on the basis that the Council were minded to grant the three Auquhirie turbines of 92.5m and these turbines formed part of the baseline at the relevant date” (para 5.48).
(129) In terms of attaching value to the site, he was happy to take as his starting point Mr Black’s opinion that “any party seeking to attach a value to the site would be likely to take a view on the prospects of achieving planning permission and discount the value according to the planning risk” (para 2.2.10 of Mr Black’s report).
(130) Using that approach, he would not apply a discount in respect of the fact that, as at the relevant date, there was only a minded-to-grant decision in respect of the three turbines at 92.5m. Were he advising a client as at the relevant date, his advice would have been to apply for permission for two additional turbines. Theoretically, a client could, at that point, have applied for permission for five turbines but he would not have advised that, given that there was already permission for three.
(131) Despite the opposition of Council officers to the height increase, the planning committee having approved it, the approach of the Council, going forward, would be to give more weight to the decision of the committee rather than the views of officers.
(132) However, an EIA for the additional turbines would be required. Reference was made to production A8/1, Scottish Government Circular 8 of 2007 (“the Circular”) on the Environmental Impact Assessment (Scotland) Regulations 1999 (“the Regulations”). The witness explained that circulars, as opposed to Planning Advice Notes, dealt with policy rather than guidance (although we note that this circular describes itself as giving guidance). Developments under Schedule 1 of the Regulations always required an EIA. This was a Schedule 2 development. An EIA would be required because erection of a significant number of commercial wind turbines was likely to produce significant effects on the environment. In this case one would be applying the guidance contained in the Circular to a two turbine development but the planning authority would require to have regard to the cumulative effects of the application together with any existing or approved development (para 50). So an EIA as at the relevant date would have considered the effect of the two additional turbines and the cumulative position. Under reference to para 117 of the Circular, he agreed that the onus was on the planning authority to satisfy itself as to the adequacy of an ES. In the present case the only request for additional information had been to do with cultural heritage.
(133) Mr Pattenden did not consider that there was anything in his approach which was inconsistent with what was said by Mr McIntosh, the Planning Officer, who had written the letter of 12 October 2009 to Mr Garvie, contemplating a scenario involving two additional turbines of 76m height.
(134) Although he would make no discount in respect of any risk associated with not getting full planning permission for three turbines at 92.5m, he would make a 10% discount in respect of uncertainty as to whether one would get permission for another two. That was his view of the chances of planning permission for these turbines being granted.
(135) As to factors affecting the likelihood of getting permission for the additional turbines, government policy, UK wide, was generally in favour of renewable energy projects, any objections from local residents would have to identify material planning considerations before being sufficient to justify refusal and no considerable weight should be attached to the fact that the decision in favour of granting permission was not unanimous: although not unanimous, it had not been a close decision. When a Council Planning Officer came to write a report on an application as at 12 October 2010, the baseline used would be one including minded-to-grant consent for three 92.5m turbines. The officer would take the view that, given the resolution to grant, it was very likely that these three turbines were going to be there. His consideration of matters would be against the background of these three turbines plus the four 81m turbines at Clochnahill.
(136) Turbines 4 and 5 lay west of turbines 1, 2 and 3 and would have no unacceptable impact on residents to the east of turbine 1. They were likewise further west of, and therefore further away from, the A90 than turbines 1, 2 and 3. Given that the committee had already decided that the impact of difference in height between the Hillhead of Auquhirie turbines and those at Clochnahill was imperceptible, that was unlikely to change in respect of an additional two turbines. Advising his hypothetical client, he would not ignore the previously expressed adverse view of the Planning Officers but would give greater weight to the decision of the committee and the position it had established. There was an assumption in planning that decisions would be consistent both with previous decisions and with policy. For a different decision to be arrived at on this hypothetical application it would require some change in circumstances brought about by the additional two turbines. If permission for these two turbines was refused there would, nevertheless, be no reason to think that the three turbines already approved in principle would not receive full permission.
(137) He was asked whether the fact that planning permission for the additional turbines might not be granted until six months or so after the relevant dated affected valuation but declined to answer on the ground that it was outwith his area of expertise.
(138) In cross-examination Mr Pattenden denied he was ignoring the practicalities of the situation and, in particular, that there was no actual planning permission for three turbines as at the relevant date and that it would take many months beyond the relevant date for planning permission to be granted. He agreed that he was ignoring the timescale – he did not think it relevant for the purposes of his hypothetical exercise. That was the way in which he had been told to approach the exercise by the applicants’ legal advisors. He agreed that he was envisaging an application for consent to the additional two turbines being made after the date of on which the minded-to-grant decision had been made for the original three (31 August 2010). He agreed that there was only a six week window between that date and the relevant date in which everything would have to be processed if planning permission for the additional two was to be granted by the relevant date. He agreed that the application would have had to be advertised and that an EIA involving consultation would have to be carried out. He agreed that the consultation period alone was 28 days. What mattered to him, however, was what the prospects were for planning permission being achieved for the additional turbines.
(139) A report prepared by Mr Nick Green, a fellow director of Savills, dated 22 August 2014, production A1/5, was put to him. He agreed that, as at that date, Mr Green had been proceeding on an assumption that planning permission for five 92.5m turbines had been granted by the relevant date. A later report prepared by Mr Green, production A4/1, dated 26 January 2016, was also put to him and he confirmed that in that report, at para 1.1.3, there was reference back to Mr Green’s first report, confirming that it was based on the special assumption that all required consents and agreements were in place and that that assumption remained his starting point.
(140) He demurred from a suggestion that Mr McIntosh, the Planning Officer, having recommended refusal of the application for consent to an increase in height for three turbines would react negatively to an immediate application for another two. Mr McIntosh would have to undertake a professional assessment of the new application. Moreover, he would have had to change his position because the planning baseline had changed.
(141) Miss Wilson put it the witness that the project under consideration in the hypothetical situation would be a project for five turbines. He regarded it as a project involving three but agreed that the cumulative effect would have to be assessed. That did not mean, however, that an EIA for five turbines would have to be carried out: Mr McIntosh had not raised that as a requirement in his letter of 12 October 2009 and Mr Pattenden thought it very unlikely that the Council would ask for an EIA for five. Whatever guidance and government circulars may say, in reality it was not the position that an EIA for the whole of a windfarm had to be carried out whenever there was an application for an extension. He disagreed that para 64 of PAN 58 made it wholly artificial to view this as a two turbine development: a two turbine development was how the planning authority would regard it. Repeated questioning did not alter his position.
(142) Mr Pattenden accepted that he was not a planning officer. He had spent six months on a part-time secondment to the planning department of Orkney Islands Council but not in a senior position and not involving reporting to committees.
(143) He accepted that when Mr McIntosh had written his letter of 12 October 2009 the application for consent to an increase in height had not been submitted. He agreed that the letter of 25 September 2009 from Mr Garvie, to which Mr McIntosh was replying, referred to the existing consent, which would be for 76m turbines. Despite the caveats mentioned by Mr Garvie in his letter, the tone of Mr McIntosh’s response had been positive.
(144) As to what form the assessment would have to take, he agreed, under reference to para 87 the Circular, that the assessment of a development should be contained in one easily accessed document. He resisted the suggestion that his approach would involve a paper trail including the original 2008 ES, the 2009 ER and a new assessment for the two additional turbines. What form the EIA for the two additional turbines was to take would be the subject of scoping. It would not be necessary to go back to the 2009 ER; the environmental baseline could be agreed at scoping stage. He accepted that the information the Tribunal had before it comprised only the ES and ER. He accepted that the letter from Mr McIntosh dealt with a different situation – a five turbine proposal with 76m turbines. We did not have a similar letter dealing with two additional 92.5m turbines although it would have been possible to ask Mr McIntosh for one. What Mr McIntosh’s letter did was demonstrate a positive opinion in terms of the sites of two other turbines and bring some clarity in regard to the need for an EIA. It said that two further turbines would appear to be appropriate. Although the reference to location was only a general reference to Hillhead of Auquhirie being in “Tier 4” of site sensitivity, it was, nevertheless, a positive letter and had there been issues in relation to another two turbines one would have expected Mr McIntosh to mention them. He agreed that Mr McIntosh would be the best person to give evidence of these things and that speculation would not be necessary had we had his evidence.
(145) The witness agreed that whether a planning authority had complied with relevant legislation involved questions of both fact and law and that he was not a lawyer. Under reference to paras 50 and 51 of the Circular, he denied that it was necessary for a planning authority to take multiple applications together.
(146) Asked why he had indicated a 90% likelihood of planning permission being granted in his second report but not in his first, Mr Pattenden explained that he had been asked to do that, in order to assist the valuation process, by the applicants’ legal advisors. The 90% assessment was not the result of an arithmetical process; it was simply his assessment of the prospects of consent for the two additional turbines being granted. He accepted that the conclusion arrived at in his January 2016 report was to do with two additional turbines. Had the planning authority been faced with an application for five 92.5m turbines, it would have been aware that it had already considered and granted one for three such turbines. He agreed that he did not know whether they would accept the approach of a baseline including the three already considered.
(147) His 2016 report had not been intended to supersede his 2014 report; its main purpose had been to respond to Mr Black’s report. In his 2014 report he had considered the planning history. He agreed that the purpose of that was to establish considerations already identified as relevant to the site. These could be wide-ranging and he agreed that they could not all, necessarily, be identified from any previous planning consent itself. In the present case, he accepted that he had not referred to SNH’s and the Planning Officer’s caveats. He confirmed that the development to which SNH had not objected was one for turbines of the same small scale as those at Clochnahill (production A6/18 at page 7) and that he had not mentioned that in his report. Nor had he mentioned the caveats contained in the Environment Response, production A6/19. What was important was the main principle coming out of the earlier decisions.
(148) The contents of the committee report of 31 August 2010 were relevant but in an application for consent to further turbines the Planning Officer would have to consider applicable policy and guidance and assess the application on its merits in the light of those. The two additional turbines would be assessed in the context of the three taller turbines having been agreed and the four turbines at Clochnahill. Although the Planning Officer would be writing his report on the two turbine application only a matter of weeks after having written his report to the 31 August committee, it would be a report on a different development. He was not placing a great deal of weight on Mr McIntosh’s letter. What was of much greater relevance was the planning committee’s decision.
(149) Mr Pattenden was then questioned about the reasoning in his 2014 report and omissions therefrom. He did not accept that the consultees’ caveats had been omitted in arriving at his position. It was put to him that the information extrapolated from the ES at para 4.24 of his report had little relevance to a five turbine development at 92.5m height. He accepted that an assessment would have to be done on the effect of the two additional turbines but the Atmos report served that purpose. He accepted that at pages 17-18, discussing landscape and visual effects, there were references to SNH without any reference to their caveats. He accepted that Mr Jones’s report did not address typology of the turbines. Nor did his own 2014 report cover that. He accepted that the absence of treatment of design issues must be a significant omission from a windfarm developments assessment. He agreed that Policy INF\7 was the key applicable policy. Although criterion (g) included effect on residential properties the additional turbines were to be further away from Upper Criggie and Brucklaywaird than the other three. The Council not having asked for a residential survey in respect of the minded-to-grant turbines, they were extremely unlikely to ask for one in respect of the two additional sites.
(150) Having relied on the Atmos assessment of the landscape and visual impact of two turbines at para 6.15 of his 2014 report, it was put to him that this could only take him so far if in fact the correct approach was to assess the effect of five turbines. He thought it was reasonable to conclude that the planning authority would have followed the same approach for five as they had for the three. In respect of criteria (g) and (h) of Policy INF\7 he had relied on the planning history and the Atmos report. He accepted that the Atmos 2014 report was lacking as a cumulative assessment. It omitted typology. He accepted that his conclusion at para 6.22 (as to the requirements of Policy INF\7 having been satisfied) had been arrived at without a number of important determining considerations having been taken into account.
(151) Turning to cultural heritage matters, Mr Pattenden accepted that Ms Oleksy’s evidence regarding Fetteresso Castle, Brucklaywaird House and Bruxie Hill monument was relevant and had such an assessment been before the planning authority they would have had to consider it against the requirements of Policy INF\7. He agreed that when he had written para 6.22 no reports at all had been available. Nor, however, had any cultural or heritage reason for refusal been suggested in the planning history up until then. He accepted that, in so far as his conclusion relating to Policy INF\7 was based on non-planning issues not addressed in his report thereby resulting in omission of a number of important issues, he was not in a position to reach that conclusion.
(152) Questioning turned to his 2016 report. We did not know for certain what conditions might have been applied to consent for a five turbine development but his assessment had been based on those attached to the previous consent. It was not known whether conditions might have been attached which were unacceptable to the developer but given the significant planning history, including knowledge of the conditions attached to the existing consent, an assumption could be made. He agreed that it had been the position of the Landscape Officer that no approval should be granted until details of the Clochnahill turbines had been obtained and, consequently, full co-ordination of the two sets of turbines achieved. He accepted that it was a possibility that since that had not happened in relation to the previous application the Planning Officer might take the view that it was all the more important to insist on it this time round. He disagreed with Mr Black’s view that the Planning Officer may have more reason to recommend refusal this time: Mr Black’s report was based on a five turbine scheme which did not take account of the planning history. Whereas Mr Black, at para 3.2.18 of his report, relied on the Acting Head of Service’s view, as at August 2010, that three 92.5m turbines did not comply with the Development Plan, it had to be remembered that the Acting Head of Service had been looking at a different application with a different baseline from that which the witness had been addressing in his report. Whilst accepting that as at 31 August 2010 the proposal then being considered was contrary to policy, in a subsequent application for consent for two additional turbines considerably less weight would have been given to the reasons for which the Planning Service had recommended refusal of the 2009 application.
(153) He accepted that the SNH caveats were not mentioned in his second report either.
(154) Although he had referred to the later Brucklaywaird decision in his report, he had not attached significant weight to it. It had certainly not been the only reason for coming to his conclusion on the policy issue.
(155) His conclusion that an extension of two turbines would not contravene criterion (f) of Policy INF\7 had been based primarily on the planning history of the 2009 application and the views expressed by CFA. He had not discussed AOC’s conclusions. He had taken the same approach with criterion (g), relying on the Atmos report in that case. He accepted again, in relation to this second report, that the Atmos approach could take him only so far because it did not address geometry or typology.
(156) He accepted that the committee, in going against the recommendation of officials at its meeting on 31 August 2010, had not disputed that their decision would involve a departure from both policies INF\7 and Gen\2. He resisted a suggestion that his conclusion, at para 4.59 of his 2016 report, that the additional two turbine development would have been found to accord with the Development Plan at the relevant date did not take account of all of the available evidence: it wasn’t all set out in his report but he had been aware of all of it.
(157) So far as process and timing of an application were concerned, he had accepted at para 5.35 of this report that representations from Community Councils would have been material considerations. He confirmed his understanding that, this being an EIA development, decision-making could not be delegated to officers. So far as the political context of decision-making was concerned, the fact that there were two committee decisions in favour of the three turbine development and its subsequent increase to 92.5m height was very relevant. He could not be 100% certain that planning permission for two further 92.5m turbines would be granted but his assessment of 90% likelihood, whilst not the result of an exact science, reflected the factors on which he had relied, with significant weight being given to the previous decisions. The discount had been arrived at as a result of a balancing act and was not just the product of the political nature of the process and the risk of the proposal being held to be contrary to the Development Plan. It was intended to cover everything that might prevent consent being granted. He accepted the proposition that a recommendation against acceptance would increase that risk. He confirmed that his conclusions in part 6 of this report were based in part on the proposed application being considered to be in conformity with the Development Plan. He accepted that his conclusions had been reached in the absence of any view by the planning authority or by statutory consultees on a five turbine development.
(158) So far as scoping in relation to the proposed application was concerned, he confirmed that there had been nothing to stop the applicants from asking whether the matter should be addressed as an application for two turbines but that that had not been done. Nor had there been anything to stop them asking SNH and HS for their views but he was not sure how they would respond to such an approach.
(159) In re-examination Mr Pattenden said that his second report was a response to the respondents’ planning report and did not supersede his first report. The two reports were to be taken as a whole.
(160) What was said by Mr Green at paras 4.8-4.10 of his second report about the level of certainty of full planning permission for the three turbines at the increased height being granted being such that no further discount of the prospects of success of a subsequent application for consent to two additional turbines should be made on that score reflected his own approach. Mr Green had not been assuming that full planning permission pursuant to the minded-to-grant decision would have been received by the relevant date; he was assuming it at some later date. Likewise he was assessing a 90% chance of obtaining consent for two further turbines being obtained at a later date, not by the relevant date.
(161) With reference to many questions in cross-examination being predicated on consent being obtained by the relevant date, he agreed that the planning authority could not have lawfully considered a five turbine application without an ES. He agreed that a new planning application was not constrained so as to have to be initiated and completed between the minded-to-grant decision of 31 August 2010 and the relevant date. An application could have been made earlier than the minded-to-grant decision.
(162) With reference to the requirements of para 50 of the Circular, there was no difficulty in taking account of the minded-to-grant decision for the three Hillhead of Auquhirie turbines along with the application for two more. If the matter was being dealt with as an application for a five turbine development, rather than a two turbine extension, one would hope, from a planning perspective, to get the same answer for turbines 1, 2 and 3 as had been given the first time. Mr McIntosh, in his letter, was considering all the turbines and the wider area and that was consistent with the witness’s understanding of the correct approach.
(163) In his opinion the lodging of an application for another two turbines while the application for the original three was still at minded-to-grant stage would not, of itself, cause the original application to be reconsidered. There would be no justification for coming to a different decision in respect of the original three. He had never heard of a minded-to-grant decision being recalled simply because a second application had been lodged.
(164) In response to questioning in cross-examination about the weight he had attached to the letter from Mr McIntosh, counsel took from the witness that he had in fact only made limited reference to this letter in his reports; at paras 4.6 to 4.8 of his first report and paras 5.36 to 5.38 of the second.
(165) By the time the new application was lodged the minded-to-grant application would have set a precedent as to height. The baseline would then have included the consented turbines at Clochnahill and the minded-to-grant taller turbines at Hillhead of Auquhirie.
(166) The caveats expressed by consultees had been dealt with by way of conditions in the application for three 92.5m turbines. The same could be done for the additional two. The references to existing planning permission in his reports included references to the conditions attached to those permissions.
(167) In so far as his reports were affected by any failure on the part of Atmos to deal with typology, nothing he had heard in the evidence of the witnesses thus far made him change his mind.
(168) So far as failure to consider the AOC material on cultural heritage impact was concerned, no cultural heritage report had been available when he had written his first report. So far as concern about a “paper trail” of documents was concerned, he agreed with counsel that it would be possible to prepare a new EIA incorporating all that had been in the previous one.
(169) In response to a question from Mr Oswald as to what his percentage assessment of the likelihood of getting planning permission on a five turbine application was, Mr Pattenden replied that it would be the same – 90% - because the baseline would still include the minded-to-grant decision in respect of three of those turbines. As to how long planning permission would take to obtain, again in answer to Mr Oswald, he thought, on the basis of the previous applications in this case, nine months was reasonable.
(170) Mr Black, who holds the above qualifications, is a Director of Jones Lang Lasalle dealing with planning matters from their Edinburgh office. He worked as a planning officer in local government, in Fife for ten years and Edinburgh for five, before taking up post with his present employers in 2007. In that earlier part of his career he worked variously as a technician, Assistant Planner, Enforcement Officer and Planner. His duties included some EIA work and assessing planning applications. He has extensive experience of electricity generating applications, including windfarms. He is the author of the respondents’ planning report. He identified the purpose of his report as being to comment on Savills’ April 2014 planning report for the applicants.
(171) He would caution a client against submitting another planning application while a current one remained live. Even if there was a minded-to-grant decision on the current one it was still not “over the line”. It remained liable to reconsideration on a change of circumstances. The mere making of a second application may cause the authority to delay the final grant of planning permission in respect of the original application. There was also a difficulty about the two applications being live and in process but not covered by a single EIA. There was no prospect of the second application being determined within six weeks where an EIA was required.
(172) His understanding from Mr Garvie’s evidence had been that it was intended to submit the second application after 31 August 2010. As at the relevant date, such an extension application would be considered to be premature because there was no final consent in respect of the original application and, therefore, no scheme to extend. He was not aware of any instance in which a developer had applied for an extension before consent had been granted in respect of that which was to be extended.
(173) If advising clients as to the likelihood of getting planning permission, he would have attached relatively minimal weight to Mr McIntosh’s letter of 12 October 2009; planners would often say that an application was “in the broad area of search”.
(174) Limited weight would also attach to the Planning Committee’s decision of 31 August 2010 because it had not been dealing with additional turbines; only an increase in height.
(175) In cross-examination Mr Black confirmed that his primary experience, so far as windfarms were concerned, was in promoting them rather than dealing with planning applications in his role as a local authority planner: he had dealt with none in his time at Edinburgh and only with a few enquiries before that.
(176) He confirmed that his approach to attribution of value to a windfarm site remained as stated at para 2.2.10 of his report: “take a view on the prospects of achieving planning permission and discount the value according to the planning risk”. He would have advised a client to wait until planning permission had been granted for the original application; in this case in January 2011. He accepted that, absent a second application, there was nothing to prevent minded-to-grant being converted into a grant. He would expect the variation of the sec 75 agreement and the discharge of the planning conditions to follow fairly swiftly after the minded-to-grant decision. If nothing else changed, there was nothing onerous about the conditions which would have had to be overcome.
(177) As to his evidence that he had never heard of an extension application being submitted before full planning permission had been granted to the original, he had been thinking about an extension of the number of turbines rather than an application to increase the consented height. He was not aware of any suggestion that the height increase application in this case had prompted the authority to review its original decision to grant planning permission for three turbines. He accepted that Mr McIntosh’s letter had been written before full planning permission had been issued, however pre-application enquiries were very different from a live application.
(178) If the application for three turbines had not been determined by the relevant date one would be looking at the prospects of it happening in a matter of months and, he agreed, any discount would be minimal. Similarly, for the additional two turbines, where there was no prospect of a determination by the relevant date, one would be trying to assess the prospects of planning permission being granted at some stage in the future. One might delay applying until consent for the three turbines had been confirmed. However, he had not taken his consideration of matters relating to the two additional turbines beyond the relevant date.
(179) Asked whether he had included in his report everything he had considered relevant at the time, he pointed out that his report was not a full assessment but a response to Mr Pattenden’s report. He had written his report taking the same baseline as Mr Pattenden had taken in his. He confirmed that he had had an opportunity to submit a rebuttal report but had not done so. He had not been instructed to prepare one nor had he suggested one.
(180) He accepted that he had not mentioned SNH caveats in his report but that did not mean he had not regarded them as important. He denied that he had not referred to the 2008 permission and the reports which had led to it: these were referred to as part of the background to the applicants’ special assumption at para 2.2.3. The planning report on the 2009 application, Appendix 1 to his report, also contained discussion of the earlier application. He accepted that it said, at para 2.1, that “the principle of the erection of three wind turbines on the site has already been established”. He could see no reference to that in his own report but it was clearly a matter of fact. Failure to mention it was not an important omission in his report: it was clear what was being discussed, the established position was being accepted.
(181) He also accepted that his report did not mention the possibility of the Planning Officer or the Council recalling the minded-to-grant decision.
(182) He denied that his hypothesis – that what was involved was an application for a five turbine development – was unreal: the fact was that there was no planning permission for three 92.5m turbines as at the relevant date. What he had been asked to consider was the special assumption in Mr Pattenden’s report that all planning permissions would be in place at the relevant date. Whether or not Mr Green’s position had moved on from the special assumption, the special assumption was what he had been asked to consider.
(183) He had not dealt with any required EIA in his report. Asked whether he had included the three minded-to-grant turbines in his baseline, he had been aware of these but in the scenario which he was addressing it would not have been possible to regard planning permission for three turbines as being in place at the relevant date.
(184) With reference to a statement at para 3.1.1 of his report that “With no formal application relating to the 5 turbine development, the best available evidence is the Council’s own reports on the planning applications submitted” it was put to him that the best evidence was these reports in the context of the Council’s rejection of them. That rejection was not irrelevant but the committee members had not gone through the full assessment process and their decision did not change the assessment which had been carried out by their officers. When a subsequent application came in they would have to consider it in the light of all that had gone before, including the Council’s decisions on the earlier applications. He agreed that, assuming the grant of planning permission for the 2009 application, the committee’s decision meant that, in principle, 92.5m turbines were being considered acceptable for Hillhead of Auquhirie. In response to the proposition that if the planning permission for three turbines at that height was in the baseline and the matter was being reconsidered by the officers in respect of a subsequent application, their concerns about height would be history (because they would know the principle had already been decided), Mr Black accepted that the officers would have to respect the fact that the Council had decided that 92.5m turbines were acceptable for that development. He had not criticised or analysed the councillors’ view that the height difference between the Clochnahill and Hillhead of Auquhirie was imperceptible: what he had done was drilled down into the report that informed their decision. He was not, however, saying that the conclusion that the height difference was imperceptible was unreasonable. It was a rejection of the Landscape Officer’s and the Acting Head of Planning’s analysis with respect to these three turbines.
(185) He agreed that there was neither guidance nor any other provision which allowed rejection of an application for two turbines on the basis that it should have been an application for five; if officers felt uncomfortable with an application they would write out with their concerns.
(186) He agreed that, in terms of para 51 of the Circular, a particular development should not be regarded in isolation; one had to go wider than that. Relating an application for consent to turbines at locations 4 and 5 to the sites of the minded-to-grant turbines, he calculated that, whereas turbine 1 was some 400 metres from Hillhead of Auquhirie Farmhouse and around 500 metres from Brucklaywaird, the new turbines would be at least 760 metres away.
(187) Questioning then turned to Ramboll’s findings in relation to Policy Gen\2. With reference to Mr Bainsfair’s characterisation of the significant effects he had identified as being “potential significant effects”, Mr Black agreed that there was a difference between “significant effects” and “potential significant effects” and that if it was right to add in the word “potential” that would affect the conclusions in that part of his report.
(188) On that basis he was asked about his application of the Ramboll findings in relation to Policy Gen\2 at para 4.3.7 of his report. He remained of the view that a five turbine development would result in significant effects including those listed at para 4.3.7 Mr Bainsfair had concluded that there were likely to be significant effects and that was obviously an issue of relevance. Mr Bainsfair had been looking at a five turbine development whereas the planning officers and SNH, who had concluded that there would be no significant effects, had been looking at only three. Ms Oleksy had also been assessing the impact of five turbines. Although she had said there would be no significant impact from an additional two turbines, HS concern about the horizontal spread of turbines should be taken into account.
(189) With reference to impact on local residents, the second reason for which the officers had recommended refusal, although it arose from the proximity of turbine 1 to the nearest residences, it was still relevant. Although the distances mentioned related only to turbine 1 he did not believe that concerns were related solely to that turbine. In his view, expressed at para 4.3.43 of his report, a five turbine development would have been likely to result in additional significant impacts contrary to Policy INF\7(g) beyond those identified by the Acting Head of Service in the 2010 committee report.
(190) Although the LVIA witnesses had been at pains to say they were not concerned with acceptability of the proposals, there was a report from the Acting Head of Planning identifying that there was concern about significant additional impact. If the Planning Officer had found three turbines unacceptable it went without saying that the same would apply to five. His conclusion was that the planning balance would probably weigh negatively.
(191) In terms of the material considerations identified in his report, he agreed that, although this was only a two turbine development, the policy support for it was no less. An apparent contrast between his conclusion at para 5.3.12 of this report and para 4.4.12-13 of a report he had prepared in relation to a development at Glenmorie, production A5/5, (the latter finding more support for the development in question from national policy than the former) was put to the witness,. He explained that national policy lent greater support in the Glenmorie case in terms of supporting the finding of sites to accommodate developments of that scale (the development involved 43 turbines at tip heights of 110 and 125 metres). He was not saying that national policy was not important in this case. In the present case he had been commenting on Mr Pattenden’s report and he had not deliberately used different wording in the two reports. Several other references from his Glenmorie report having been put to him by counsel (paras 4.2.7, 4.41 and section 4.7), he resisted the suggestion that he had underestimated the weight to be given to renewable energy development policy in this case.
(192) Returning to his report in the present case, 32 representations of concern had been received from the local community. Whilst these did not raise any concerns not covered in this hearing, Mr Black thought it important for the Tribunal to know that the issues raised at this hearing were consistent with the concerns of people within the local community.
(193) He agreed that the tone of Mr McIntosh’s letter was positive. He agreed that there was no doubt as to what Mr McIntosh was being asked. He was not giving the view of the authority but he was giving his view as an officer of the Council. People working in planning authorities were not encouraged to pre-judge matters and Mr McIntosh said as much in his letter. But it was admittedly relevant that Mr McIntosh had been involved with the previous application and knew the site. Mr Findlay put it to him that this wasn’t, therefore, a letter dealing with Tier 4 sites generally; it was dealing specifically with this site and one would expect any concerns in his mind to be raised. The witness replied that a planning officer within a local authority would be very guarded as to what to put in this sort of letter given the level of interest in this kind of application.
(194) As to the political context, whilst planning committees were supposed to decide applications in accordance with planning law, one could never be sure. Whilst what would influence planning officers was fairly easy to predict, not so with elected members; there were so many things which could influence them that it was very difficult to predict what committees would do.
(195) He denied that he had undervalued policy and overstated problems. The clearest evidence available to him, or the Tribunal, was the view of the Acting Head of Planning given just six weeks before the relevant date. He likewise denied that a key flaw in his approach was to attribute more weight to the recommendation of officers than the decision of the Committee. The Committee had simply gone against the recommendations as to increase in height: they had not considered anything else. Neither, it was acknowledged, had the officers.
(196) In re-examination he confirmed that when he had said the minded-to-approve decision was very likely to turn into full planning permission he had been assuming there were no other factors which could affect that. One such factor would be a second planning application.
(197) Under reference to paras 4.3.8, 4.3.19 and 4.3.36 senior counsel took from him that in coming to his conclusion he had taken account of cumulative effect, local landscape designation and cumulative negative impacts in connection with Clochnahill.
(198) Asked by Mr Oswald for his assessment of the prospects of success for a second application seeking consent for two additional turbines made after the minded-to-grant decision had become full planning permission, he thought it unlikely to be granted, so less than 50%. He thought it would take about 14 months for such an application to be processed.
(199) The right to compensation under para 7(1) of Schedule 4 to the Act was conferred in the most general terms, the only caveat being that the loss must be suffered in the capacity of owner or occupier of the land; White v National Grid. The principle of equivalence applied and claims were therefore subject to three conditions – causation, remoteness and reasonableness. It was the loss to the owner of the interest in land which was to be ascertained, not market value. Nevertheless, loss could be ascertained by market value and the applicants’ position in this case was that the loss was the difference between the market value of the land with the benefit of planning permission for three turbines and its value with such benefit but also with the “hope value” of permission being granted for another two. This was consistent with the approach taken by this Tribunal in the Clochnahill case, Gordon v National Grid Gas plc, at para 171.
(200) The proper approach to ascertaining market value was to take a view on the prospects of achieving planning permission and discount the value according to the planning risk. That had been accepted by Mr Black in cross-examination and by Mr Pattenden in unchallenged evidence-in-chief.
(201) The development value of the land had to be assessed. That exercise required consideration of (a) the merits of any planning proposal as at the valuation date and (b) the attributes of the land as at the same date. It had to be assumed, on a parallel with the scheme/no scheme comparison in compulsory purchase cases, that the wayleave disappeared as at the relevant date.
(202) For the purpose of assessing the planning merits as at the valuation date, the time taken to obtain permission was irrelevant, unless it was known or could be foreseen, at the relevant date, that material planning considerations might change in the interim, which was not being suggested here.
(203) This was contrary to the respondents’ approach, which focused on the prospects of obtaining planning permission on the valuation date itself and against a baseline without the three Hillhead of Auquhirie turbines. It was an error of law to proceed on that basis. The correct basis was as laid down in Spirerose. Albeit that was a compulsory purchase case, the same approach should be taken in the present case. It was not a question of proving on the balance of probabilities that planning permission would be obtained and then recovering 100% of the value but discounting the value according to the prospects, necessarily future prospects, of obtaining planning permission. “Hope value” quantification was a very familiar exercise in this area and what was said, to that effect, by Lord Neuberger of Abbotsbury at para 61 of Spirerose was relevant as an answer to the respondents’ submissions in this case as to the difficulty of making such an assessment. Reference was also made to the recent Inner House decision in the case of Scarborough Muir Group Ltd v Scottish Ministers, in particular to Lord Malcolm at para .
(204) Further support for this approach was to be found in Steel v Scottish Ministers in the discussion of these matters at paras  to , from which it was clear (a) that Spirerose prevented a positive finding that before or by the valuation date planning permission would have been granted and (b) that matters had be considered as they stood at the valuation date (paras  and ).
(205) Mr Findlay’s submissions also took the following from Steel:
The Tribunal’s preference for a “top down” assessment – see para ;
That regard was had to “broadly supportive” discussions which had taken place with officers (para ) and to market interest; and
The significance, in relation to criticisms of Mr Pattenden’s reasoning for his 90% assessment, of the Tribunal’s comment (at para ) that “The exercise of weighing and balancing the whole evidence does not lend itself to any helpful detailed explanation”.
(206) Against that background, the applicants’ case in relation to the three turbines was that, pursuant to the resolution to grant planning permission for the land on 31 August 2010, the market would have approached any valuation of the land on the basis that permission was certain or virtually certain to be granted, such that no discount should be applied. This was a situation in which, even applying Spirerose, a finding of certainty could be made and it could be concluded that the market would not have discounted anything for planning risk. As to the two additional turbines, the applicants’ case was that no sustainable reason had been identified as to why planning permission would not have been granted and that any discount should, therefore, be minimal.
(207) As the value of the land was its value to the owner, and not market value, it was legitimate to have regard to the actual grant of planning permission for the three turbines which followed shortly after the relevant date, on 10 January 2011. Support for this was to be found in Bwllfa & Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks Company, particularly at page 431 and also in the treatment of injurious affection claims, Bolton Metropolitan Council v Waterworth, particularly at page 299. Note should also be taken of the fact that in Director of Buildings and Land v Shun Fung Ironworks Ltd the court had had regard to matters in the shadow period before and after the valuation date.
(208) There was no basis in law or practice for the various “process” issues raised by the respondents. In the first place, there was no basis for the suggestion that an application for planning permission for two further turbines, rather than five, would have been rejected without consideration of its merits. There was a legal duty on planning authorities to process applications and no power to refuse to do so, save where a repeat application was made within a certain period of time. Secondly, there was no basis for any suggestion that disgruntled officers would have ensured that the minded-to-grant permission was taken back to the Council on receipt of a further application, nor that the elected members themselves would have wished to reconsider it. Whilst a council could change its mind after a minded-to-grant decision had been taken (R(Dry) v West Oxfordshire Council), in reality there had to be a change of circumstance to justify reconsideration. No such change was suggested here. There was no rational basis for treating the lodging of a further application, in itself, as justification for a change of mind because there would be “nothing new and no reason for a rational planning committee to change its mind” (R(Dry) at para 20).
(209) There was no legal basis in the EIA (Scotland) Regulations 1999, or elsewhere, for the suggestion that the two turbine application would have to be considered as one for five. Regulation 2 made clear that it was the application for planning permission which formed the basis of any assessment under the Regulation. Wider consideration was permitted only for the purposes of deciding whether an application was for a Schedule 2 development; Simon Brown J in R v Swale BC Ex p Royal Society for the Protection of Birds at para 16. Paragraphs 49-51 of the Circular were also relied upon as making clear that it was only for the purposes of deciding whether something was a Schedule 2 development that wider considerations, going beyond the application itself, were permissible. The respondents’ opposing view was based on a strained reading of the second sentence of para 50 in isolation. The aims of the Directive (EC Directive 85/EEC on the assessment of the effects of certain public and private projects on the environment) and the Regulations would not be frustrated because any further application would be subject to the requirement for an EIA in respect of which full regard would have to be had to the cumulative impacts of what was proposed together with the three Hillhead of Auquhirie turbines and four Clochnahill ones.
(210) Criticisms of the ES and ER were baseless. It was primarily for the planning authority to judge whether an EIA was adequate and satisfactory. If not they could and should ask for more to be done. In this case, subject to a one matter in respect of Brucklaywaird which was remedied before consideration, Aberdeenshire Council had not done so. The statutory consultees were likewise satisfied, save as to cumulative impact on two heritage assets in respect of which HS formed its own view and did not object. Mr Bainsfair’s criticisms of the ER for failing to give consideration to the issue of compatibility with Clochnahill had been shown to be wrong (App 7 to the ER). The criticisms made were therefore without foundation in law or fact.
(211) They were also irrelevant because the permissions, for the three turbines and then for the height increase, had been granted pursuant on them and there was no suggestion that these permissions were unlawful on account of any omission along those lines.
(212) In relation to any further planning application the existing ES and ER performed a useful scoping role in narrowing down the issues between the parties and identifying the issues which may have a bearing on the prospects of success of a further planning application for consent to two additional turbines at locations 4 and 5. A whole lot of issues – noise, water supply, aviation interests, ecological and ornithological interests – once thought contentious had been resolved. A new EIA covering those matters would have been a waste of time and money. It would have been an entirely theoretical exercise, since planning permission simply could not be granted in respect of locations 4 and 5 while the pylons remained in place. No Certificate of Appropriate Alternative Development (CAAD) process was available here and it was inconceivable that statutory consultees would have devoted time and effort to responding to a purely hypothetical proposal.
(213) As to the results of the EIA generally, it should be remembered that all commercial scale windfarms had significant localised impacts but that an impact could be significant without being unacceptable. That had been true of the first Hillhead of Auquhirie application; it had given rise to significant but acceptable impacts which did not bring it into conflict with applicable development plans or policies.
(214) As a result of this de facto scoping exercise only two impacts required further consideration; LVIA and cultural heritage. These were the only matters that might arise and have to be addressed in a further EIA. These fell to be addressed against a baseline including the three Hillhead of Auquhirie turbines and the four at Clochnahill, which was the correct approach. The respondents’ contrary position – that the matter had to be assessed as an application for five turbines on an undeveloped site – was flawed in that it assumed the market would ignore the minded-to-grant decision and the certainty, as the applicants believed, that it would become a full planning grant.
(215) As regards the two matters the relevant witnesses for the respondents were Ms Oleksy and Mr Bainsfair. Only Ms Oleksy had carried out a full assessment: Mr Bainsfair had limited himself to comment on the previous material, predominantly the ES and ER, and had identified only potential significant impacts or allegedly significant impacts not supported by evidence. It was not enough for the respondents to identify some issues which might require further investigation which might, in turn, yield further information which might lead to identification of significant impacts which might be unacceptable.
(216) In terms of LVIA issues, the committee’s decision on the application for consent to an increased height of 92.5m had already decided that issue. That being so, there was always going to be a contrast between the heights of the four Clochnahill turbines and the three at Hillhead of Auquhirie and the only relevant question was whether the addition of another two at locations 4 and 5 would exacerbate that (almost imperceptible, as the majority of the committee found) difference to an unacceptable extent. In reality, the issues raised by the two additional turbines would not have to do with height but the cumulative effect of the layout of the whole nine turbines and how they fitted into the landscape and these were issues which the respondents’ witnesses hardly raised.
(217) Turning to cultural heritage matters, all parties were agreed that the effects on cultural heritage assets would be indirect, not direct. Ms Oleksy had found four significant impacts and significant cumulative impacts but that was predicated on a five turbine scheme; in other words on a baseline which did not include the three consented turbines at Hillhead of Auquhirie. However, in cross-examination in relation to para 7.11 of her report, she had agreed that the addition of two turbines (against a baseline including the other three) would not result in significant impacts either by themselves or cumulatively. That baseline had been acceptable to both HS and the Council and there was no evidence to suggest that the Tribunal should take a different view.
(218) The conclusion that the two additional turbines would not add anything of significance to the cultural heritage assessment was unsurprising, given that they would hardly be noticeable from any of the assets except Bruxie Hill Cairn and even there their presence was arguably an improvement in terms of uniting two parts of the overall windfarm, when viewed from that direction. These two turbines would not result in any greater horizontal spread of the windfarm viewed from any direction, which had been one of Ms Oleksy’s main concerns, when assessing matters as a five turbine development.
(219) The views of HS and the Council were more consistent with the conclusions of Mr Neighbour as to the lack of impact of two further turbines in respect of any of the four issues highlighted by Ms Oleksy. In relation to the first proposal – for the erection of three turbines – HS had found two significant cumulative impacts, at Castle Fiddes and Bruxie Hill Cairn, the former of which was agreed by Ms Oleksy and Mr Neighbour to be an error and they had made no comments at all in relation to the second. The Council’s Built and Cultural Heritage Team had assessed only one significant impact, at Brucklaywaird Farmhouse, but it had been considered acceptable by the Council. There was nothing in the cultural heritage evidence to suggest a reason for refusing consent to two additional turbines.
(220) Turning to LVIA evidence, whereas Mr Jones had produced his own assessments, Mr Bainsfair had merely provided a critique of the ES and ER which amounted to “fighting old battles”, in as much as Mr Jones’ assessments had not relied on these and they had, in any event, been accepted by the Council. Moreover, his evidence was subject to the same criticism as Ms Oleksy’s: he had considered five turbines against a baseline of only the four at Clochnahill.
(221) It was clear that the location was, in general terms, considered appropriate by the Council and the consultees for commercial scale windfarm developments; hence the approval for four turbines at Clochnahill and three at Hillhead of Auquhirie. The Council had also found tip heights of 92.5m acceptable. The principle of 92.5m turbines at Hillhead of Auquhirie had, therefore, been established.
(222) Mr Bainsfair’s conclusions were criticised. He had accepted that he had misstated the view of the Council’s landscape planner at para 6.1.2 of his report. That mistake had infected other parts of his report; for example paras 5.1.15 and 16. His own concerns had not been echoed either by SNH or Council officers. He had suggested (at para 6.1.4) that Atmos had adopted the wrong approach, whereas the boot was on the other foot. He had referred to four effects, in respect of which the following points were made:-
(223) Whereas he had criticised the analysis of the qualities of the ALS and the effects of the development thereon in the ES and ER (para 3.1.3 and part 5 of his report), he had not been able to point to one location within the ALS where a significant effect would be experienced.
(224) His view that the disparity between the Hillhead of Auquhirie and Clochnahill turbines was “clearly evident” was at odds with the Council’s view that it was “hardly discernible” and failed to take account of the base height of the two sets of turbines which resulted in them appearing to be of the same height.
(225) As to residential impacts, he had not identified any and turbines 4 and 5 were considerably further away from the properties potentially affected than the others.
(226) His concern about visual amenity from the A90 was based on a five turbine development and not on the effect of an additional two and took inadequate account of the fact that views of the turbines would be transient at speeds of around 60 mph.
(227) In so far as Mr Bainsfair had attempted to assess the impact of two additional turbines, rather than five, his concern appeared to be with “stacking” (see para 5.3.2 of his report) but, unlike Mr Jones, he had not identified where the key visual receptors were and how much they would be affected by stacking. Mr Jones had identified these receptors as being primarily north and south of the development, from which perspectives stacking was not particularly evident, if at all.
(228) Mr Jones’ approach was to be preferred as being more robust and focused on “the real issues”, whereas Mr Bainsfair’s was more of an academic critique.
(229) Turning to planning issues, there was little between the witnesses in respect of many of the relevant issues but, where they differed, Mr Pattenden’s evidence should be preferred as more realistic. Mr Black provided minimal material explaining why he thought significant effects became unacceptable when the policy framework was applied. He had merely depended on the Planning Officer’s report relating to the second application, which related to a different scheme and focused on the acceptability of an increase in height. Like Ms Oleksy and Mr Bainsfair he had been considering the impacts of a five turbine scheme, not an additional two. He had underplayed the policy support there was for commercial scale windfarms, in which respect the contrast with his Glenmorie planning statement was striking. On the other hand he had overplayed the vagaries of councillors. In the present case a majority of councillors had voted in favour of both previous applications and Mr Garvie had sounded out two local councillors as to the acceptability of five turbines.
(230) The highpoint of the respondents’ case was the Planning Officer’s second report to committee and that the subsequent committee minute recorded that the application was in conflict with the Development Plan. As to the first, the report’s assessment of impacts had been rejected by the committee or been dealt with by way of planning condition. As to the second, the conclusion that the height difference was going to be hardly perceptible to the eye effectively nullified alleged policy conflicts.
(231) In summary, in the real word the market would conclude that the principle of the development to 92.5m had already been accepted and formed part of the baseline for any future application and that the planning focus of such an application would, therefore, be on its own particular impacts, including cumulative impacts. The siting of additional turbines at locations 4 and 5 would provide a layout broadly consistent with Clochnahill and at least turbines 2 and 3 of Hillhead of Auquhirie. They would sit between the two schemes and would not, overall, be higher. The additional impacts would be very limited and given the significant policy support there was for renewable energy, Mr Pattenden’s overall assessment was fully justified. His assessment of a 90% chance of success for such an application should be supported by the Tribunal.
(232) The foregoing reflects the content of the applicants’ written submissions. Mr Findlay’s oral submissions devoted a significant amount of time to refuting Miss Wilson’s charge that he had changed his case from one based on a special assumption that planning permission would be granted by the relevant date to one based on hope value. We have already dealt with that. He also spent time on rebutting some points of detail from the respondents’ written submissions. We need not set those out. Beyond that, the main thrust of his oral submissions was that what we had to do was put ourselves in the position of the market taking a view as to value of the land, not a planning authority taking a decision. It would be an error of law to decide what the planning authority would or would not have done before the valuation date; Spirerose and Steel.
(233) We asked Mr Findlay whether, drawing a comparison with compulsory purchase cases, we should look at what would have happened in a “no pylon, no wayleave” world, in which the applicants would, presumably, have lodged an application for five turbines. He replied that this was an Electricity Act case, not a compulsory purchase one, and that one was looking at the position on a particular date and should not second guess what might have happened prior to that date.
(234) The first eight pages of the respondents’ submissions had to do with Miss Wilson’s submission that the basis of the applicants’ case had changed as aforesaid. We have already dealt with that.
(235) Turning to substantive matters, under the 1989 Act, compulsory purchase and necessary wayleaves had separate regimes. Schedule 3 dealt with the former and paras 6 to 8 of Schedule 4 with the latter. This distinction had been accepted in the case of Macleod v National Grid Co although it had also been accepted, under reference to Horn v Sutherland Corporation, that, as in compulsory purchase cases, the fundamental principle for payment of compensation was equivalence. That approach had been approved in the more recent case of Arnold White Estates Ltd v National Grid Electricity Transmission plc in which Brigg LJ had, under reference to what had been said by Lord Nicholls of Birkenhead in Director of Buildings and Lands v Shun Fung Ironworks Ltd, identified three conditions which applied: causation, remoteness and reasonableness. Of these, it was submitted on behalf of the respondents, causation was particularly relevant in necessary wayleave cases.
(236) The alleged compensatable event in this case was the grant of the necessary wayleave but the real issue was whether the grant of the wayleave had in fact caused the applicants a loss for which compensation was payable. The factual issue was whether the grant of the wayleave was the only cause of the applicants being unable to develop a five turbine windfarm in circumstances where there was no planning permission for such a development as at the relevant date. As at the relevant date the only planning permission which had been granted in respect of the subjects was for three turbines of 1.3MW power. It was, however, conceivable at the relevant date that permission would be granted for a windfarm of three 2.3MW output, given the planning authority’s minded-to-grant decision. It was the respondents’ position that it was inconceivable that such permission would have been granted for a windfarm comprising five 2.3MW turbines as at the relevant date.
(237) It was for the applicants to establish in evidence that but for the overhead line they would have obtained planning permission for the hypothetical five turbine project. As had been made very clear in the respondents’ Preliminary Note of Argument, the question was not whether, as at the relevant date, the applicants would have been likely to have been granted planning permission for the erection of two further turbines but, rather, whether, as at the relevant date, they would have been granted planning permission for a hypothetical five turbine development on an undeveloped site.#
(238) By contrast, the applicants’ experts’ approach, that the development to be assessed was the addition of two turbines as an extension of the already “consented” three, was not only simplistic but divorced from reality because it did not address the planning issues the planning authority would have addressed. It was simplistic in that it reflected Mr Garvie’s view that it was self-evident that permission would have been granted for two additional turbines because it was so obviously an “infill“ development. But Mr Garvie was not a planner.
(239) It was not the form of any application which mattered – whether it was for two turbines or five – but the nature of the assessment that would necessarily have to precede the grant of permission. The applicants’ failure to recognise this was demonstrated by the fact that no proper assessment of the impacts from the hypothetical five turbine project had been carried out. Mr Pattenden had been particularly reluctant to accept that, irrespective of what was applied for, the determining issue for the Council would have been the acceptability of a scale of development comprising five turbines. He had accepted that his approach involved treating the minded-to-grant decision as an existing consent and the three turbines to which it related as an existing windfarm, whereas the fact was that no such development existed: there was no built development to extend. At the relevant date the hypothetical development site was undeveloped. Whilst the exercise we had to carry out was necessarily a hypothetical exercise, it was not accepted that it should proceed on an artificial basis which ignored the real situation at or before the relevant date.
(240) No CAAD procedure was available under Schedule 4 of the 1989 Act, a fact that had caused the member of the (English) Lands Tribunal dealing with Macleod to say that he was in the unsatisfactory position of being “required to make an informed guess as to the decisions that would have been made by the local planning authorities on planning applications for the development schemes put forward” (page 227). It was not for us to resolve the differences of professional opinion between the parties’ witnesses as regards the likely significant effects of the development and whether such impacts would be considered acceptable. We were not to carry out our own planning assessment. The question for us was what planning permission would have been likely to have been granted as at the relevant date. In Macleod the evidence that had been considered by the Tribunal had been past planning decisions involving the site, Development Plan policy and the views of the planning authority as revealed in correspondence.
(241) In this case the Tribunal did not have available to it a professional assessment carried out by officers of the local authority nor even an EIA for a five turbine development. It was not in a position to exercise any kind of discretion based on such assessments and any material considerations they threw up. All of this had been accepted by Mr Pattenden.
(242) In order to address the question of how likely it was that the applicants would have obtained planning permission for a five turbine windfarm by the relevant date we had to consider (1) the process the applicants would have required to complete in order for the Council to be in a position to grant such permission by the relevant date and (2) the likelihood of the Council granting such permission by the relevant date.
(243) In relation to the first of these, Mr Black had explained that it would not be possible to consider the development of additional turbines as an extension of a consented development of three 92.5m turbines. That had to do with the time it would take to produce the environmental information necessary to support an application to increase the scale of the windfarm to one of five 2.3MW 92.5m turbines. Mr Pattenden, on the other hand, had dismissed questions associated with process as irrelevant, having been told to do so by the applicants’ legal advisers. He had not applied his mind to the question of how planning permission could have been achieved by the relevant date.
(244) Even if the special assumption had by now been wholly departed from by the applicants, on what basis was it permissible for planning witnesses to look beyond the relevant date for the purposes of their evidence at this stage in the proceedings? Both Mr Black and Mr Pattenden had approached consideration of the Council’s decision-making process by reference to the relevant date; it was the timeframe within which they had considered the likelihood of the Council granting permission for turbines 4 and 5. The starting point for that timeframe was derived from Mr Garvie’s evidence that he would not have submitted an application for two more turbines until the application for a height increase for the three consented turbines had been decided, which happened on 31 August 2010. Mr Black had given evidence that he would not have advised a client in a similar position to Mr Garvie to lodge the second application until full planning permission had been granted for the first. That was because a minded-to-grant application was not yet “over the line” and could be taken back to committee if circumstances changed. A second application lodged before the first was over the line could also result in a decision on full planning permission for the first being delayed. On Mr Garvie’s approach, however, the timeframe for such an application was six weeks. It was agreed that it would have to be accompanied by an ES and followed by an EIA.
(245) Mr Pattenden had accepted in examination-in-chief but resisted in cross-examination the notion that at some stage the development would have to be assessed as a five turbine project. That showed the extent to which he was prepared to allow himself to be led in examination-in-chief and re-examination.
(246) This was not the only criticism made of Mr Pattenden. On the matter of what was the nature of the development which would have to be assessed in an LVIA used for EIA purposes, the evidence of Mr Jones, who had expressly said that he felt himself qualified to give evidence on this but not on planning procedures, should be preferred to that of Mr Pattenden who was “hamstrung” by the applicants’ desire to treat the additional two turbines as an infill development giving rise to so few substantive EIA and planning policy issues as to make the grant of planning permission a foregone conclusion. One also had to bear in mind, so far as Mr Pattenden’s approach being reliant on the application being seen as an extension of an existing windfarm was concerned, his concession that the situations of which he had experience involved extensions to windfarms which were consented, built and operational. This was consistent with Mr Black’s evidence that he had never come across a developer applying for an extension to a windfarm which was not already fully consented. Mr Pattenden had conceded the possibility, although he did not consider it likely, that a second application lodged during the period between minded-to-grant and full grant decisions in respect of the original application could result in the minded-to-grant decision being taken back to committee. Mr Black had explained why a minded-to-grant decision might be taken back to committee in that situation. One possible reason was that the existence of two live applications not covered by the same EIA would make the presentation of information by officers to committee difficult. In this context, as explained by Mr Black, the application for consent to increased height was not to be seen as an application for an extension to the windfarm and the fact that it had not led to the original minded-to-grant in respect of turbines as a lower height to be reconsidered or delayed was not in point.
(247) The trouble with the applicants’ approach was that their witnesses simply ignored the possibility that the planning authority and statutory consultees would not share their narrow approach (that this was a two-turbine extension to a three turbine development which had, in effect, already been consented) and might insist instead on looking at the reality of the situation which was the proposed development of a five turbine windfarm of 92.5m height in juxtaposition to a consented windfarm of four turbines at Clochnahill.
(248) In relation to all planning matters we should prefer the evidence of Mr Black to that of Mr Pattenden, on account of the former’s significantly greater experience as a planner within a planning authority.
(249) It was clear, regardless of whether the application was for two turbines or five, that the project which would require to be assessed by way of an EIA was one for a five turbine windfarm. Mr Jones had accepted as much in cross-examination under reference to PAN 58. Case law was to similar effect: in R v Swale, ex part RSPB the court had said “the proposal should not … be considered in isolation if in reality it is properly to be regarded as an integral part of an inevitably more substantial development”. Similarly a “paper chase” consisting of a disparate collection of documents did not satisfy the requirements of an EIA; what was required was “a single and accessible compilation, produced by the applicant at the very start of the application process, of the relevant environmental information”, Berkeley v Secretary of State for the Environment per Lord Hoffman at page 617E. On the applicants’ approach, the Council was going to be faced with an ES for the originally intended three 76m turbine project, which was not going to be built, an ER (not an ES) for the increase in permitted height application and an EIA for turbines 4 and 5. That amounted to a “paper chase”. The applicants’ approach was not legitimate when considered in the context of what was required of a lawful decision-making process.
(250) As well as ignoring these requirements Mr Pattenden, in assuming that the planning committee would come to the same decision as it had on the 2009 application, was ignoring the significance of the democratic process. In the words of Lord Walker in Spirerose at para 44 a planning authority’s decision-making process “is not arbitrary, but neither is it predictable with certainty”. In addition to that inherent uncertainty there was the uncertainty of how the various planning and material considerations ignored by the applicants’ witnesses would be dealt with. These considerations and the uncertainties to which they gave rise were as follows:
(i) The concerns of the Planning Service and consultees over the scale of development as disclosed through the consultation responses and report to committee in relation to the 2009 application.
(ii) The inadequacy of the applicants’ LVIA in relation to a further increase in scale and the associated difficulty of controlling the compatibility of the turbine type to be used at Hillhead of Auquhirie with that used at Clochnahill.
(iii) The fact that the planning committee had agreed with the view of its officers that the increase in height was contrary to the Development Plan.
(iv) Mr McIntosh’s assessment of the EIA effects of the 2009 application which led to the recommendation of refusal of that application.
(251) The best evidence of the planning considerations which would be taken into account in considering an increase to five turbines was not the decision of the committee in respect of the increase in permitted height but the report to committee for the 31 August 2010 meeting. The applicants had not produced this, relying instead on the more favourably worded report on the 2008 application which had gone to the committee meeting of 24 March 2009. The 2010 report should be preferred to the earlier report and to the expert evidence in this case because (a) it was contemporaneous with the relevant date, (b) it was entirely independent and had not been carried out for the purposes of this case, (c) it had been carried out by the planning authority for the purpose of assessing the policy implications of increasing the scale of development on the referral land, and (d) it addressed the issues which were likely to be determinative and relevant to a further application to increase the scale of the development.
(252) The respondents did not accept that a subsequent report in relation to turbines 4 and 5 would have been in different terms from the report to the 31 August 2010 committee meeting because of the decision taken at that meeting. The issues addressed in that report would have remained relevant and, as Mr Black had stated, a subsequent application to further increase the scale of the development would probably have given rise to greater concern in respect of these issues.
(253) The greatest of the environmental concerns would have had to do with landscape and visual effects. Within that, the need to ensure co-ordination with the Clochnahill turbines was the major matter, so important last time that, in the absence of design information from the Clochnahill developers, the planning officers had said the application should not be viewed positively. Mr Pattenden had not addressed these concerns.
(254) The other LVIA concerns were (a) cumulative impact and no consideration of necessary mitigation, (b) absence of any assessment of impact on residential amenity, (c) increased impact on users of the A90 and (d) impact on the setting of cultural heritage assets.
(255) The submissions dealt with the last of these first. It was acknowledged that Ms Oleksy thought the significance of the impact on the four assets she had identified in her assessment would perhaps be less if turbines 4 and 5 fell to be considered as an extension of an existing windfarm. Her own conclusions had been based on viewing this as a five turbine development. If that was how the Council viewed it, her conclusions were relevant. She had demonstrated the possibility of significant impacts on the setting of one scheduled ancient monument and two listed buildings, such that they would be contrary to policies ENV/18 and 19 of the Local Plan. These policies said that that development should not be permitted where there were to be significant adverse effects on scheduled monuments and listed buildings.
(256) It was not the Tribunal’s job to decide what the planning authority would make of these impacts; what mattered was whether the evidence we had heard had established impacts which would fall to be considered by the authority. The existence of such impacts would affect planning risk, which is what we had to assess. If Ms Oleksy’s evidence was accepted as credible and reliable it became conceivable that these issues would have to be addressed by the planning authority in considering an application for an increase in scale from three to five turbines. They may lead the planning authority to conclude that the grant of permission for such a development would not be supported (that is the way it put in the respondents’ written submissions) by the foresaid policies.
(257) But there were issues of greater significance. Cumulative impact was one. Despite being thirled to the notion that turbines 4 and 5 were to be treated as an extension to the three already “consented”, Mr Jones had accepted that when carrying out a cumulative impact assessment the development would have to be treated as a five turbine project.
(258) In relation to LVIA matters generally the following factors were relied upon: (a) that the LVIA that would have been required for EIA purposes was not the kind of retrospective assessment produced by Mr Jones in his April 2014 report, (b) that Mr Jones had not in any event considered mitigation measures which would be needed to reduce probable significant adverse effects, (c) that no consultation responses were available from SNH or the public in respect of the proposed addition of turbines 4 and 5, (d) that objections to windfarms from members of the public generally concerned visual impact, (e) that the Atmos reports contained no assessment of the qualitative issues relating to design compatability with Clochnahill that Mr Bainsfair had described, (f) that, although LVI assessment was an iterative process, gaps and omissions in the assessment work could alter the weight a decision-maker would attach to LVIA work, (g) that the need for compatability with Clochnahill had been of concern to Council officers in 2010 and effective co-ordination between the two projects was regarded as essential mitigation, (h) that whether enlargement of the Hillhead of Auquhirie windfarm was acceptable would be dependent upon it being “read as one in the landscape” with Clochnahill, (i) that in 2010 neither the Planning nor the Environment Officer had satisfied that the applicants had shown this could be achieved, and (j) that Mr Jones had accepted that although visual effects would be localised they would be experienced by users of the A90 and local residents.
(259) Because LVIA work involved subjective, as well as objective, assessment, two landscape architects could reach different conclusions on the nature and extent of landscape and visual impacts. The Atmos ES and ER and Mr Jones’ own reports could not, therefore, be treated as definitive. Mr Jones had ultimately accepted that the project to be assessed for ES purposes was the five turbine development in its entirety. However no such assessment had been carried out by Atmos. This was a significant omission which led to Mr Pattenden admitting that the Atmos reports could take him “only so far” in his assessment of impact against policy.
(260) There was no basis in the evidence for an assumption that, in dealing with essential mitigation, the Council would simply have made that a condition of planning consent, as they had done when full planning permission was granted for the height extension in 2011. It was unknown how the Council would have dealt with it. Given Mr Bainsfair’s evidence, not contradicted by Mr Jones, it was likely that turbines 4 and 5 would emphasise design incompatibility with Clochnahill, it was unlikely that the Council’s officers would take a different view as to the unacceptable nature of the proposal in the absence of co-ordination. Mr Garvie had given evidence that there was no prospect of getting the necessary information from the developers of Clochnahill who had refused to speak to him or divulge any information. Indeed they had actively opposed the Hillhead of Auquhirie application. And, as it turned out, the two designs were incompatible, as spoken to by Mr Bainsfair.
(261) Mr Bainsfair’s evidence as to residential amenity should also be accepted. No residential impact assessment had been carried out and Mr Bainsfair had given evidence that without one it could not be demonstrated that the concerns of the Planning Officer as regards residential amenity could be addressed nor that the impacts on local residents would not be worse from a five turbine development.
(262) The issues of impact on users of the A90 and cumulative impact along with Clochnahill would also have to be addressed. These had been of concern to Council officers in 2010 and on Mr Bainsfair’s evidence there was continuing cause for concern. There was no evidence to show why these officers, who had advised that the proposal was contrary to Policy Gen\2 (in relation to impact on users of the A90) and Inf\7 (in relation to cumulative impact and residential amenity impact), would have changed their minds in relation to a further application to increase the scale of the windfarm.
(263) Mr Pattenden had been guilty of cherry-picking. He had been content to adopt the committee decision on the 2009 application as the view of the Council but had ignored that the committee had accepted, as was recorded in the minute of the meeting of 31 August 2010, that what they were agreeing to was in conflict with Development Plan policy and the Development Plan itself. Likewise, he had been content to rely on Mr McIntosh’s letter of 12 October 2009 as indicating Council support for the enlargement of the Hillhead of Auquhirie windfarm but ignored Mr McIntosh’s entirely negative assessment in the 2010 committee report.
(264) Mr McIntosh’s assessment in respect of the height increase application was that the proposed height increase in itself, and without any increase in the number of turbines, was unacceptable. That assessment and Mr McIntosh’s conclusion that what was proposed was contrary to the Development Plan were completely at odds with Mr Pattenden’s conclusion that an increase in the number of turbines would be compatible with the Development Plan. That was not a tenable conclusion and Mr Black’s evidence should be preferred to Mr Pattenden’s as being more complete, balanced and reasoned as well as being based on Mr Black’s greater relevant experience. Mr McIntosh could have been led as a witness but instead the applicants had chosen to rely on a planning consultant with virtually no experience of the process of assessing an EIA development.
(265) The only reasonable conclusion was that the hypothetical proposal would have been assessed by the Council as contrary to the Development Plan. Furthermore, because of the nature and range of uncertainties which remained unresolved in the applicants’ evidence, it was clear that the hypothetical development would have faced significant planning risks as at the relevant date. The planning history pointed to a negative, rather than positive, outcome.
(266) Cumulatively, these matters significantly undermined Mr Pattenden’s 90% assessment of likelihood of planning permission being granted. The very fact that he had proferred such a high percentage, in the context of the evidence, undermined his credibility and reliability.
(267) Even if the uncertainties and unresolved issues which increased the planning risk did not persuade us that planning permission would probably have been refused, they were enough to show that the applicants had not discharged the onus on them to establish that it was likely to have been granted by the relevant date.
(268) In this part of proceedings in this application we are required only to come to a view as to what prospects there were, as at the relevant date and in the absence of the overhead line, of planning permission being obtained, at some later date, for two additional 92.5m turbines.
(269) Putting matters that way means that we reject the respondents’ contention that what the applicants set out to prove was that by the relevant date all necessary planning consents would be in place for these turbines. That may be consistent with the application as originally lodged but, as we have explained earlier in this judgment, the case the applicants took to proof was one clearly based on hope value.
(270) This is consistent with the approach taken by the House of Lords in the leading case (admittedly on compulsory purchase) of Transport for London (formerly London Underground Ltd) v Spirerose Ltd (in administration) and by this Tribunal in the recent cases of Steel v Scottish Ministers (another compulsory purchase case) and Gordon v National Grid Gas plc (a case involving loss arising out of the compulsory acquisition of a servitude over land for the purpose of laying a gas pipeline). Thus we are not to come to a decision, on a balance of probabilities, as to whether planning permission would be granted, but assess the risk that it might not and discount the full value of the land with the relevant permissions accordingly. The second part of that exercise – quantification of the value of the land and application of the appropriate discount – is a matter for the second part of the proof, due to take place next month.
(271) Consistently with this, the evidence led by the respondents, in so far as not directed at disproving the foresaid special assumption, was aimed at drawing to our attention matters which had in the past caused or may yet cause concern to the planning authority and may therefore increase the risk that permission would not be granted. Save for the purpose of disproving the special assumption, we were not invited to hold, on a balance of probability, that planning permission would not be granted.
(272) Accordingly, we are not to put ourselves in the role of the planning authority but, rather, of an interested party external to that authority attempting to assess, in the knowledge of all that was known at the relevant date, the nature and magnitude of such risks as lay in the way of planning permission being granted.
(273) What would such a person know, as at the relevant date? He would know the following:
(i) That on 14 July 2008 a planning application for consent to the erection of three 1.3MW turbines with a tip height of 76m at Hillhead of Auquhirie had been made to Aberdeenshire Council.
(ii) That on 24 March 2009 the Council had resolved that it was minded to grant that application.
(iii) That on 4 November 2009, before full planning permission had been issued for the foregoing application, an application had been made for consent to increase the height of the turbines to 92.5m and their output to 2.3MW.
(iv) That on 11 December 2009 full planning permission had been granted in respect of the original application, that is to say, for three 1.3MW turbines with a tip height of 76m.
(v) That on 31 August 2010 the relevant planning committee had resolved that it was minded to grant the application for the increase in height but that full planning permission had not yet been granted.
(vi) That full planning permission had been granted for four turbines of height 81m on neighbouring land known as Clochnahill.
(vii) That in the absence of the necessary wayleave and, consequently, the 275kV overhead line, there may be potential for building further turbines at Hillhead of Auquhirie.
(274) In addition to this skeletal information, an interested party would have available all the planning documentation in respect of these applications, including environmental assessments and planning reports.
(275) Against that background an interested party would have to decide when to lodge an application. Mr Black gave evidence that he would not advise that such an application be lodged until full planning permission for the three turbines of increased height and output had been granted. That was for fear of upsetting the prospect of such permission being granted. Subject to that advice being taken, Mr Black, agreeing with Mr Pattenden in this, saw no reason to doubt that full planning permission would follow from the minded-to-grant decision in due course. Accordingly, we agree with Mr Findlay that no discount falls to be made in respect of any risk that planning permission would not be granted for the three 92.5m turbines: on the evidence there was no such risk.
(276) An interested party would then have to consider what to apply for. The applicants say it would be for two additional turbines against a baseline including what would by then be full planning permission for three turbines at Hillhead of Auquhirie and four smaller turbines at Clochnahill. The respondents say that it would have to be for five turbines on a greenfield site and without any reference to Clochnahill. That would be because, although permission had been granted, nothing had been built on either site.
(277) It seems to us that the position of the applicants is to be preferred. It accords with logic. What is being applied for is planning permission. Why would one apply for what one already had? Nothing in the Regulations, policies or guidance to which we were referred requires such an approach and no examples were given in evidence of such a thing being required by a planning authority. Salami-slicing is certainly discouraged (para 51 of the Scottish Government Circular on the 1999 Regulations)but that has more to do with the need to view developments as a whole. It does not suggest to us that a local authority would reject an application for two turbines and insist on one for five in a situation in which an application for three had already been approved. No doubt in a no-pylon, no overhead line world what would have happened would have been that an application for five turbines instead of three would have been lodged back in 2009; there would never have been an application for only three. But we have to look at matters as they stood on the relevant date. By then there was a minded-to-grant decision for three turbines at Hillhead of Auquhirie and four at Clochnahill. Accordingly, in our opinion, an application made on or after the relevant date would be for consent to two additional 92.5m 2.3MW turbines against a baseline which included (as at the relevant date) the minded-to-grant decision already in place at Hillhead of Auquhirie and the full consent already in place for Clochnahill. We heard no evidence that a planning authority could or would reject such an application and insist on one for five. Instead the application, like any other, would have to be considered on its merits.
(278) The application would have to be accompanied by an EIA. As to what that would have to encompass, the difference between the parties is, we think, more apparent than real. We say that because Mr Pattenden, for the applicants, accepted that, whether the application was for consent to two turbines or five, the EIA would have to assess the impact of the whole five turbine development on the various interests covered by an EIA.
(279) The starting point here would surely be the work already done, that is to say the ES produced by Atmos in 2008 and the ER of 2009. These would have to be supplemented by an up-to-date assessment of the impact of all five turbines but, having regard to the risk of falling foul of guidance against a “paper trail”, we see no reason why these could not be incorporated into the up-to-date assessment.
(280) We heard criticism of the adequacy of the EIA prepared in 2008 and the subsequent ER but we agree with Mr Findlay that what matters is that the planning authority did not question their adequacy nor ask for supplementary information. There was nothing in the evidence to suggest that a different view would have been taken by the officers in respect of a further application which relied in part on the earlier work and continued the same approach into an up-to-date assessment of the impact of what would then be a five turbine windfarm. In the absence of evidence identifying a mechanism whereby the concerns of Mr Bainsfair, Ms Oleksy and Mr Black were likely to come into play in respect of a new application we have no basis for thinking that a new application would be met by a more demanding and rigorous approach.
(281) Anyone preparing such an assessment – and it would surely makes sense to employ those who had carried out the earlier work – would want to pay particular regard to the issues which had proved potentially problematic before: the matters which caused Mr McIntosh, as the author of the report, and the Acting Head of Service, in whose name it went to committee, to recommend refusal of the application to the Planning Committee meeting of 31 August 2010.
(282) Before we come to their reasons for refusal, we would say that in our opinion, when it came to a subsequent application being lodged, the officers who contributed to that report would very probably adhere to and reiterate the views they had expressed in that report albeit they would have to acknowledge and respect the fact that the Committee had gone against their recommendations. We say that because nothing had changed between the date of that report (3 June 2010) and the relevant date which bore upon the merits of their objections to the earlier application, except for the Committee decision itself. None of these officers gave evidence, so we have no direct evidence of what they would have done but we think it stands to reason that, nothing “on the ground” having changed, they would adhere to their original concerns and indeed feel duty-bound to express them.
(283) There were three reasons for recommending refusal: (1) Departure from Aberdeenshire Local Plan Policy Gen\2 on The Layout, Siting and Design of New Development, criteria (a), (d) and (f) in that the height and scale of the proposed turbines did not respect the character and amenity of the surrounding area, important public views and characteristics of the landscape within which it was situated; (2) Departure from Local Plan Policy Inf\7 on Renewable Energy Facilities, windfarm criterion (g), in that proximity to the nearest occupied dwelling resulted in unacceptable visual intrusion for residents of that property; and (3) Departure from criterion (i) of the last mentioned policy in that, due to the height and scale of the proposed turbines, the proposal would have a negative cumulative impact when considered in the context of the differing turbine heights and rotor diameters consented to at Clochnahill.
(284) In deciding to go against recommendation, the Committee did not question the fact that the proposed developed breached the Development Plan policies in the ways the report had identified. Instead, the majority decided that there were good reasons for departing from these policies. Accordingly, it can be accepted that a proposal to build another two turbines of the same height and type would also breach these policies.
(285) So far as the first reason for recommending refusal is concerned, the height and scale of the proposed turbines was also a matter of concern to SNH, as consultees. In their letter of 18 December 2009 (production A6/26) they said this:
“We broadly agree with the assessment of landscape, visual and cumulative effects of the increase in turbine heights to 92.5m as contained within the ER. We recognise that there will be an increased magnitude of landscape and visual impacts and significance of effects within 4 km of the development, beyond which the increase in turbine heights are (sic)unlikely to give rise to any additional significant effects.
However, we are concerned about the precedent that this increase in turbine height sets in relation to the acceptability of this scale of development within the undulating agricultural landscape character of rural Aberdeenshire. We consider that this increase in turbine height, if applied cumulatively to a number of other turbine clusters will significantly affect the capacity of the landscape to accommodate further development. In particular with further developments of this scale, the Aberdeenshire landscape could have turbines as a defining feature of its landscape which could in turn significantly impact on local communities.”
(286) That passage suggests that their concern was that the higher height would be extended to other windfarms. So far as Hillhead of Auquhirie was concerned, they approved the proposal on condition that turbines of similar design and scale to those at Clochnahill were used (Committee Report, paras 4.31.2 and 4).
(287) Mr Bainsfair’s evidence on these matters was in the way of a technical review of the original LVIA and ES. As such, his evidence tended towards a counsel of perfection. His concerns about the adequacy of the LVIA and ES were not, evidently, shared by the statutory consultees nor, in some respects, by the planning officers. He himself was careful to emphasise, in re-examination as well as cross-examination, that his conclusions as to the existence of “significant effects” at certain viewpoints should be read as referring to “potential significant effects”. It does not seem to us that anything in his evidence suggests that an LVIA in respect of an application for two additional turbines carried out in the same way as the original LVIA was (a) likely to have been considered inadequate by the planning authority or its consultees or (b) likely to produce findings which would have made them alter their positions.
(288) The position of Historic Scotland, another of the consultees, in relation to the proposal for three 76m turbines was this (their letter of 21 August 2008, production R/2):
“In general we consider this [i.e. the Environmental Statement] to be an adequate assessment of impacts upon the historic environment. However, we consider that the cultural heritage assessment has underestimated impacts upon the historic environment as there is no assessment of potential cumulative impacts with Clochnahill Wind Farm. In isolation we would generally agree that impacts by a single turbine on the setting of Category A Castle of Fiddes and of SAM Bruxie Hill long cairn 650 WSW of Ferniebrae, may be of minor significance. However, cumulatively we suggest impacts upon both the Castle and the cairn would be of moderate significance.”
(289) They had no comment to make on the increase from 76 to 92.5 metres; see their letter of 16 December 2009, production R/4.
(290) As to what effect the addition of two further turbines of the same height would have, it was Ms Oleksy’s evidence that, whereas the four turbines at Clochnahill and the three already consented to, in principle, at Hillhead of Auquhirie would have significant cumulative effects, the addition of another two would not add significantly to these (already significant) effects.
(291) So far as the second reason for recommending refusal is concerned, it has to do with the effect on Hillhead of Auquhirie Farmhouse. At a distance estimated by Mr Black to be at least 760 metres, the sites of turbines 4 and 5 would be significantly further away from that dwelling than those of turbines 1, 2 and 3; turbine 1, the nearest, being about 400 metres away. Mr Black did not believe the planning officers’ concerns to have been solely related to turbine 1. He thought a five turbine development would have been likely to result in additional significant impacts contrary to Policy INF\7(g) beyond those mentioned in the Committee Report. Whilst the thrust of his argument – that if the planning officers had found three turbines unacceptable the same would be true of five – has to be accepted, so far as this particular ground of objection is concerned, it is difficult to understand – and it was not explained – how two turbines further away from the dwellinghouse in question would exacerbate the position.
(292) It seems to us that it was the third of the reasons given in the Committee Report that was the cause of greatest concern: the cumulative effect along with the four turbines at Clochnahill. As we have seen, it was on condition that the turbines be of the same size and scale as those at Clochnahill that SNH did not object and HS’s single concern also had to do with cumulative effect.
(293) What does the evidence tell us about the effect of the addition of two further turbines at locations 4 and 5? Dealing first with cultural heritage, Mr Neighbour and Ms Oleksy stuck to their guns in terms of their assessment of the significance of effects on cultural assets. Ms Oleksy had found moderate, and therefore significant, effects at four sites. Mr Neighbour had visited all four but nothing he had seen or heard changed his own view nor his agreement with Mhairi Hastie’s conclusion in her June 2015 report (production A2/3) that the addition of two turbines at locations 4 and 5 would result in only a minor difference in the cumulative effect. He also pointed out that the classification of an effect as moderate (and therefore significant) did not meant that the effect was unacceptable. But the most significant evidence on this chapter of matters is Ms Oleksy’s acceptance, in cross-examination, that these two turbines would not add significantly to what was already a significant cumulative effect.
(294) In terms of landscape impact, in his April 2014 report, Mr Jones said this:
“While they [i.e. the two additional turbines] would add to the notable influence in the immediate context up to 1km to the northeast and add some density to the general composition of existing turbines, from most points they would not fundamentally extend the composition of the turbines. At times they would also help to consolidate the two slightly separate disconnected clusters into a single combined wind farm element. From most points to the south, they would then be seen at a more notable point to the rear of the Clochnahill ridge. The open, rolling character of this LCT would help to anchor the turbines into the open landscape, provide some shelter and screen the full height of the turbines from the majority of sensitive receptors to the south.”
(295) This suggests that the addition of two turbines would improve the overall layout and, therefore, the cumulative effect.
(296) Mr Bainsfair seemed to accept this in his evidence, in as much as he said that filling the gap between turbines 2 and 3 and Clochnahill would not fill the other gap, between turbine 1 and turbines 2 and 3. But he pointed out that one effect of filling the gap between turbines 2 and 3 the four turbines at Clochnahill would be that the contrast with Clochnahill would be all the more evident: the two sets of turbines would be closer together and the differences between them would be more obvious.
(297) There is no doubt that the need to minimise differences between the two wind farms would be a major consideration for the planning authority in considering a new application, as it had been to their officers and some of their consultees in the lead up to the 31 August 2010 meeting of the Planning Committee. Thus the Council’s Landscape Planner had advised that, should the Committee be of a mind to approve the application, a final decision should not be made until the Planning Service had been supplied with details of wind turbine rotation rates from both sites. As it turned out, that did not happen and when full planning permission was granted, the following January, the need for co-ordination of the appearance of the two developments was dealt with by way of a condition. In cross-examination Mr Pattenden accepted that it was possible that since the desired co-ordination had not happened in advance of planning permission being granted last time, the Planning Officer may be all the more insistent on it happening next time round. This is an important point and one we return to below.
(298) Up until now we have been dealing with what the evidence tells us about the grounds on which the planning officers recommended refusal of the application to the committee meeting of 31 August 2010. With the exception of the need for close co-ordination with Clochnahill, nothing in the evidence leads us to think that an application for two additional turbines would face any obstacle or ground of opposition significantly stronger than those which emerged when the Planning Committee made its minded-to-grant decision in August 2010.
(299) The factors which persuaded the majority of elected members to reject the officers’ recommendations likewise remained unchanged as at the relevant date. These, so far as relevant, were that a principle had already been set of granting height increases, that climate change and renewable energy targets were to be met, and that the change in height of the proposed turbines would hardly be discernible to the eye. There was no suggestion in the evidence that anything had changed as regards those matters between 31 August and the 12 October 2010. They would carry the same weight as formerly. Nor is there any suggestion of a change in the make up on the Planning Committee in the meantime.
(300) Against that background, we come to consider the factors which bore on risk that planning permission for two further turbines would not be granted. These appear to us to be as follows:-
1. The possibility that the new EIA, including LVIA, which would have to be compiled might produce conclusions significantly more adverse than the earlier ones. That must be a possibility since no EIA or LVIA has in fact been carried out in respect of five turbines but, with one exception, we struggle to find in the evidence any basis for concluding that such a result was likely.
The one exception is, however, significant. It is the fact (as we accept it to be on the basis of Mr Bainsfair’s evidence) that the additional two turbines would bring the two windfarms into closer proximity and make the contrast between them more obvious.
We know that in January 2011 the Council dealt with this, in relation to the earlier application, by way of making it a condition of the planning permission. But, as at the relevant date, how this might be dealt with in relation to a subsequent application which brought the two windfarms into closer proximity was an imponderable in respect of which a significant discount is, we think, appropriate. We do not, however, think it leads to a probability that such an application would be refused. We say that on the basis that the political wind seems to have been blowing fairly strongly behind windfarm developments at this time and that the elected members had proven themselves willing in August 2010 to go against their officers’ recommendation. For these reasons we are inclined to the view that an interested party – or the market – would not be deterred by this difficulty. But they would make a significant discount to allow for it. In our view that discount can reasonably be assessed at 25%.
Beyond that, the evidence has not brought to light anything which seems to us likely to have produced materially different results from the earlier work. The planning authority and consultees found the earlier work adequate and there is, therefore, no reason to think that they would call for anything more extensive in relation to this application. Accordingly, any discount for this must be small.
2. The risk that SNH and HS would respond differently. The concerns of SNH would have been increased by the closer proximity of the two windfarms and the more obvious contrast between them. We do not have a basis for holding that they would have objected to the new application on that ground, however. We think it more likely that, as previously, they would rely on the planning authority to enforce conformity as between the two developments.
3. The disgruntlement of planning officers that another application should follow so quickly on the one just granted against their recommendations. We mention this only because it came up in evidence. We do not entertain it. These officers are professionals and we have no doubt that they would have considered a new application on its merits, whatever their personal views might be. In any event it is difficult to see how such disgruntlement would translate into effective opposition to the application.
4. The risk that the views of elected members might change. They too might feel disgruntled. There may be a feeling of “enough is enough”. A wide range of factors could influence councillors. As Mr Black put it, whereas it is fairly easy to predict what will influence planning officers, less so elected members. On the other hand we have no evidential basis for thinking they would actually deal with another application capriciously or anything other than properly. As we have already noted, nothing had changed in terms of national policy and the drivers behind renewable energy since 31 August. Moreover the precedent of 92.5m tip height turbines had now been set, not just for the area of the Mearns, but specifically for Hillhead of Auquhirie.
(301) In our view the only matter likely to give the elected members more pause for thought on this occasion would be the closer proximity between the two windfarms and the more obvious contrast between them. We know that in January 2011 the Council dealt with this, in relation to the earlier application, by way of making it a condition of the planning permission. As at the relevant date, how this might be dealt with in relation to a subsequent application which brought the two windfarms into closer proximity was an imponderable but we are satisfied that it is adequately allowed for in the discount already made.
(302) A discount also requires to be made in respect of the other more marginal risks discussed above. On the whole matter we consider that the prospects of obtaining planning permission for the two additional turbines are fairly estimated at 65%.
(303) Our finding as to the market perception, as at the relevant date, of the likelihood of receiving planning consent for two further turbines in the “no pylon” world should be treated as an instruction to the valuation witnesses for the purposes of the next hearing in this case. How, by way of methodology, it is dealt with for the purposes of quantifying the applicants’ claim is, of course, up to them, but in our view it is an exercise which is within the sphere of their normal commercial practice.
(304) We make a further finding with regard to the market perception of timing. We heard from Mr Black, as referred to previously, that he would not expect an interested party to apply for planning consent for the further two turbines until such time as the minded-to-consent decision for the three taller turbines was converted into a full planning consent, duly documented. We agree.
(305) Full consent was obtained in January 2011 but, of course, that was not known at the relevant date. Both Mr Pattenden and Mr Black were of the view that there was nothing to prevent the grant of full consent but neither expressed a view as to how long it might take to materialise. In our view, based on the experience of the Tribunal in these matters, it would reasonably have been expected within a period of six months. Accordingly, we ask the valuers, as far as it may be relevant to their consideration, to assume a six month period from the valuation date for receipt of the full consent for the three turbines.
(306) For the avoidance of doubt, these directions to the witnesses do not form special assumptions for valuation purposes. A “special assumption” is defined in the RICS “Red Book” as “an assumption which assumes facts that differ from the actual facts at the valuation date.” Rather, this is an instruction to the parties and expert valuation witnesses as to how the Tribunal has, on the basis of the evidence led, interpreted the market circumstances at the valuation date.
(307) The parties and their experts should therefore prepare for the next hearing on the basis that the market would perceive that there was a 65% chance of obtaining full planning consent for two more turbines at Hill of Auquhirie, and that the application for that consent would be lodged six months after the valuation date.
(308) We had almost completed this judgment when we received a further letter from the respondents’ agents continuing the discussion as to whether the applicants had changed their position in this case and, if so, what the consequences of that should be. A procedural hearing at which the possible need for further planning evidence could be discussed was suggested. That proposal is not consistent with the view we have taken of criticisms made of the presentation of the applicants’ case earlier in this decision. Accordingly the case will be continued to the diet of proof on valuation issues already fixed.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 10 August 2016
Neil M Tainsh – Clerk to the Tribunal