The Court of Session has rejected an appeal by a windfarm objector, highlighting the difficulties for objectors in thwarting such developments.
A local review body of Scottish Borders Council had granted permission for the erection of two 110m high turbines near Cockburnspath, overturning the original decision of the single planning officer who determined the original application. Local review bodies were established following regulations introduced in 2008. There is a right of appeal from the decision of a local review body to the Court of Session.
The appeal was made on the basis that the local review body had failed to take account of material considerations and planning policies as well as failing to consider proportionality, breach of natural justice and failing to give adequate reasons.
In rejecting the appeal Lord Armstrong stressed that the 2008 regulations provide for a review procedure, not an appeal and there is no provision requiring a local review body to deal with the reviewed case in the same fashion as if the application was being made in the first instance. It would not be necessary In Lord Armstrong's opinion for the local review body to make its own findings in relation to all specific matters e.g. protection of residential amenity and where the local review body accepted the conclusions of the planning officer who determined the original planning application the acceptance by the local review body"must be interpreted as being informed by his assessment of these factors". Lord Armstrong's decision is of interest given that the Scottish Government Chief Planner sought to clarify local review procedures in a letter of 29th July 2011 where he stated that a"de novo" approach should be adopted in determining cases brought before local review bodies.