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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> PETITION OF WILDLAND LTD FOR JUDICIAL REVIEW OF A DECISION OF THE HIGHLAND COUNCIL DATED 5 AUGUST 2020 GRANTING PLANNING PERMISSION FOR THE CONSTRUCTION OF A VERTICAL LAUNCH SPACE PORT ETC NEAR DUNBUIE, TALMINE, TONGUE [2021] ScotCS CSOH_87 (20 August 2021)
URL: http://www.bailii.org/scot/cases/ScotCS/2021/2021_CSOH_87.html
Cite as: [2021] ScotCS CSOH_87, [2021] CSOH 87, 2021 GWD 27-369

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OUTER HOUSE, COURT OF SESSION
[2021] CSOH 87
P901/20
OPINION OF LORD DOHERTY
In the petition of
WILDLAND LIMITED
Petitioner
for Judicial Review of a decision of The Highland Council dated 5 August 2020 granting
planning permission for the construction of a vertical launch space port etc near Dunbuie,
Talmine, Tongue
Petitioner: MG Thomson QC, Van der Westhuizen; Morton Fraser LLP
Respondent: Burnet QC; DWF LLP
Interested Party (Highland and Islands Enterprise): J Findlay QC, N McLean solicitor advocate;
Brodies LLP
20 August 2021
Introduction
[1]
The respondent is The Highland Council. It is the planning authority for The
Highland Council area. On 5 August 2020 it granted planning permission in respect of
application 20/00616/FUL submitted by Highland and Islands Enterprise ("HIE") for the
construction of a vertical launch space port with launch operations control centre, site
integration facility, launch pad complex, antenna park, access road, fencing, services and
associated infrastructure at land 2.6 km south west of Dunbuie, Talmine, Tongue. The
petitioner controls land adjacent to the site of the proposed development. It made written
representations to the respondent against the proposed development.
2
[2]
The proposed development, to be known as Space Hub Sutherland ("SHS"), is a
dedicated facility for the vertical launch of a range of different launch vehicles ("LVs") by
multiple launch service providers to deliver small satellites into orbit around earth. It is to
be operated by a launch site operator ("LSO"). The key elements of the surface
infrastructure of the proposed development include: (i) a launch operation control centre
building; (ii) a launch site integration facility building; (iii) a launch pad complex from
where LVs will take off; (iv) an antenna park; (v) an access road, 2.5 km in length, from
the A838 road to the launch pad. The site is on the A'Mhòine peninsula. It extends to
approximately 307 hectares, with built development and infrastructure covering
approximately 3.13 hectares. The site boundary overlaps five designated sites, namely the
Caithness and Sutherland Peatlands Special Area of Conservation ("the SAC"), the
Caithness and Sutherland Peatlands Special Protection Area ("the SPA"), the Caithness and
Sutherland Peatlands Ramsar site, and the Ben Hutig and A' Mhòine Sites of Special
Scientific Interest.
Background to the application
[3]
The application was subject to the Town and Country Planning (Environmental
Impact Assessment) (Scotland) Regulations 2017 ("the 2017 Regulations") and was
accompanied by an environmental impact assessment report ("EIAR"). The EIAR
considered environmental effects associated with the construction, operational and
decommissioning phases of the proposed development, and included chapters on, inter alia,
ecology, ornithology, traffic and transport, and a summary and schedule of mitigation and
monitoring. The EIAR recognised that article 6(3) of EU Council Directive 92/43/EEC ("the
Habitats Directive"), as implemented by regulation 48 of the Conservation (Natural
3
Habitats, &c.) Regulation 1994 ("the Habitats Regulations"), requires that plans or projects
that are not directly connected with or necessary to the management of a European site, but
would be likely to have a significant effect on such a site, either individually or in
combination with other plans or projects, are to be subject to an "appropriate assessment" of
their implications for the European site in view of the site's objectives.
[4]
The qualifying interests for which the SAC is designated are: blanket bog,
depressions on peat substrates, otter, acid peat-stained lakes and ponds, wet heathland with
cross-leaved heath, clear-water lakes or lochs with aquatic vegetation and poor to moderate
nutrient levels, marsh saxifrage and very wet mires often identified by an unstable
"quaking" surface. The qualifying species for which the SPA is designated are birds listed in
Annex 1 of Directive 2009/147/EC on the Conservation of Wild Birds and/or breeding birds
listed in Schedule 1 to the Wildlife and Countryside Act 1981 ("WCA"), in particular: black-
throated diver, common scoter, dunlin, golden eagle, golden plover, greenshank, hen
harrier, merlin, red-throated diver, short-eared owl, widgeon, and wood sandpiper.
[5]
For the purposes of the EIAR a representative LV with dimensions of 19 metres in
height and 1.3 metres in diameter was used. Furthermore, in relation to the operational
phase a representative launch operating scenario was defined to represent normal
operational activities, and assessments were based on up to 12 launches per year and an
assumption of one launch per month. The EIAR predicted that during the operational phase
the proposed development would lead to increased traffic volumes on a number of roads in
the vicinity on launch days, primarily caused by spectator traffic. It considered that with the
implementation of mitigation measures such as: (i) a Launch Day Traffic Management Plan;
(ii) a Temporary Traffic Regulation Order or Traffic Regulation Order; (iii) improved
signage and (iv) passing place works, no significant residual effects were anticipated. As
4
regards public safety, the EIAR noted that it was anticipated that during certain periods of
launch campaigns, measures would be required to control the public from entering the
launch exclusion zone ("LEZ"), which would include an area of 1.8 km radius around the
launch pad and a downrange land overflight exclusion zone. Those control measures were
provided within the Visitor Management Strategy ("VMS"). In relation to
non-ornithological interests, the EIAR considered that there would be no significant effect of
increased visitors or visitor management on designated sites including the SAC during the
operational phase, due to the VMS. In relation to ornithological interests the EIAR
recognised that unless there were mitigation measures there would be likely to be significant
effects on ornithological interests during the construction phase and during the operation of
the development. However, following the application of mitigation no residual effects were
predicted. The VMS set out a strategy to manage visitors and to identify the principles for
the development and management of safe and effective arrangements for visitor
management around launches, while minimising any damage to the environment. The VMS
envisaged that safety, environment and security for the development would be dealt with in
separate more detailed plans, and that the purpose of the VMS was to explain how those
plans would operate to ensure a holistic approach to visitor management. The VMS would
be provided to the appointed LSO, who would prepare a separate detailed Visitor
Management Plan ("VMP") in consultation with stakeholders.
[6]
In addition to the petitioner, other objectors included Scottish Natural Heritage
("SNH") and the Royal Society for the Protection of Birds Scotland (the "RSPB"). SNH (now
NatureScot) is the public body responsible for Scotland's natural heritage. It is a statutory
consultee where an EIAR has been submitted to a planning authority (2017 Regulations,
regulations 2(1) and 22(2)(a)). The RSPB is not a statutory consultee.
5
[7]
SNH's objection was dated 12 March 2020. It was a holding objection. Among the
matters raised were concerns about the development's effects on the SAC and SPA during
the operational phase. SNH sought information from HIE on a number of matters. Both the
petitioner and the RSPB raised concerns about visitor management and about issues relating
to ornithology.
[8]
The respondent's transport planning team did not object to the application, but it
considered that appropriate mitigation would be required to manage the impact of spectator
traffic on the road network. It sought suspensive conditions to ensure that a VMP is
submitted and agreed in writing prior to any launch being carried out, and that thereafter
the agreed VMP should be implemented in full. It envisaged that the VMP would set out
the size, layout and location of car and coach parking required to accommodate visitors at or
close to viewing areas and suitable and accessible routes for pedestrians from the parking to
the viewing areas, and that the visitor facilities would be provided prior to any launch.
[9]
On 1 May 2020 SNH requested HIE to work through various scenarios, setting out
the detail of how visitors and protestors would be handled. It also asked how the LEZ and
surrounding area would be policed and how protestors would be removed. As a result HIE
provided the respondent and SNH with a document dated 28 May 2020 titled "VMS
Clarifications ­ Scenario Planning" ("VMSC").
[10]
On 8 June 2020 SNH withdrew its holding objection. It indicated that it was satisfied
that sufficient information in relation to visitor management had been provided to
demonstrate that a practical and workable solution to the issue of visitor management could
be found which would avoid an adverse effect on the integrity of the SAC and the SPA. Its
advice was that the proposal could be progressed with appropriate mitigation, but that it
was essential that the provision of that mitigation should be a condition of the planning
6
permission. Condition 11 of the permission was drafted in order to achieve that. On about
15 June 2020 the respondent published a redacted copy of the VMSC on its ePlanning portal.
[11]
The respondent's planning officers prepared a report of handling for the planning
committee which recommended that planning permission be granted subject to a number of
conditions, including condition 11. The report summarised the matters raised in objection to
the application and the events surrounding SNH's objection and its subsequent withdrawal.
The petitioners had queried with the respondent whether the VMSC was supplementary
information in terms of the 2017 Regulations which required to be published. The report
noted this suggestion but opined that the VMSC provided clarifications, did not change the
scope of the development, did not alter the conclusions of the EIAR, and that it was not
supplementary information. It noted that the Habitats Regulations applied, that the
respondent required to consider the effect of the proposed development on the SAC and
SPA, and that the necessary appropriate assessment was contained in Appendix 2 of the
report. That assessment explained the requirements of the Habitats Regulations, the likely
significant effects of the proposed development on the SAC and SPA, and why the
respondent was required to carry out an appropriate assessment. It referred to the relevant
impacts and it concluded that there would not be an adverse effect on the site integrity of
either the SAC or the SPA if the mitigation set out in the appropriate assessment was
applied.
Condition 11 of the planning permission
[12]
Condition 11 of the planning permission states:
"11.
No later than 6 months prior to the first launch from the site, a visitor
management plan (VMP) shall be submitted to and approved in writing by the
Planning Authority in consultation with SNH, Transport Scotland, and emergency
services. The VMP shall be based on the principles set out in the Visitor
7
Management Strategy submitted with the Environmental Impact Assessment Report
as clarified by the Scenario Planning with Supporting Planning Assumptions
document (May 2020) and shall set out the proposed management of visitors to the
site and the launch exclusion zone for the period of the launch campaign.
The approved VMP shall include:
a)
The period of the launch campaign;
b)
Details of how visitors will be managed during launch and non-
launch scenarios across the application site and the Launch Exclusion Zone,
having particular regard to the impact of visitor management on the
qualifying features of the Caithness and Sutherland SAC, SPA and Ramsar
site. For the avoidance of doubt there shall be no vehicles used for the
management of visitors within the areas of the Launch Exclusion Zone that
coincide with the Caithness and Sutherland SAC, SPA and Ramsar site,
except in an emergency situation;
c)
The estimated visitor numbers, proposed viewing areas, visitor traffic
routes to these areas and the traffic generation on these routes
d)
The size, layout and location of the car, campervan and coach parking
required to accommodate the estimated visitors at or close to the viewing
areas and details of suitable accessible routes for pedestrians from the
parking to the viewing areas;
e)
Provision of the agreed visitor facilities (including parking facilities)
prior to launch;
f)
Measures to encourage sustainable transport to the site including
remote park and ride and provision of public transport services from rail
stations and larger settlements within Caithness and Sutherland;
g)
Proposals for a suitable Traffic Regulation Order mechanism to
control stopping and waiting on the A838 (and at other locations which are
identified as likely to be impacted by uncontrolled parking in the vicinity of
the launch site). This shall include any associated signage;
h)
Proposals for any byelaws (not relevant to the Space Industry
Act 2018) to establish the Launch Exclusion Zone which will impact on the
public road network;
i)
Security measures which may affect the free flow of traffic on the
public road;
j)
Proposals of road signage to inform and warn road users on the main
visitor routes and within the settlements of Melness, Talmine and Tongue
8
and to redirect road users where required, including any signage on the
public road required for the Launch Exclusion Zone; and
k)
Proposals for a public information protocol and a communications
strategy (including a website) to provide information on the traffic
management proposals and the provision of an advance schedule of
launches.
Thereafter the approved VMP shall be implemented in full. The VMP will also
include provision for monitoring of visitor management and a review of the VMP
shall be undertaken, in consultation with the Council, SNH, Transport Scotland, and
emergency services following each launch during the first year of launches.
Thereafter, monitoring and review of the visitor management plan will take place at
the end of the 2nd year of operation and thereafter every anniversary of the first
launch from the development; or 6 months in advance of the first launch by any new
Launch Site Operator; or at the request of the Launch Event Visitor Management
Group. Following each review of the VMP, the revised VMP shall be submitted for
the written approval of the Planning Authority in consultation with SNH, Transport
Scotland, and emergency services. Thereafter the revised VMP shall be implemented
in full.
Reason: To ensure that visitors are managed in a manner which would not have an
adverse effect on the qualifying features of Caithness and Sutherland Peatlands
Special Protection Area and Caithness and Sutherland Peatlands Special Area of
Conservation, or on the local road network. To ensure the principles in the Visitor
Management Strategy submitted with the Environmental Impact Assessment Report
as clarified by the Scenario Planning with Supporting Planning Assumptions
document (May 2020) are carried forward to the detailed Visitor Management Plan
and to allow sufficient time for planning and implementation. The inclusion of
suitable reviews of impacts post launch, and appropriate monitoring of qualifying
habitats and species is required to inform, and where necessary change, future visitor
management. Changes may be required in response to predicted effects and effects
which have not been predicted due to the novelty of the proposal, the evolution of
technologies, changes in visitor behaviour and unforeseen factors."
Relevant statutory provisions
[13]
Regulations 2, 3, 5, 21, 22, 26 and 27 of the 2017 Regulations provide:
"(1)
In these Regulations--
...
`additional information' means--
(a)
supplementary information required in accordance with
regulation 26(2); or
9
(b)
any other information provided by the developer which, in the
opinion of the planning authority or the Scottish Ministers, as the case may
be, is substantive information about a matter to be included in the EIA report
in accordance with regulation 5(2);
...
`the consultation bodies' means--
...
(b)
Scottish Natural Heritage;
...
`environmental information' means--
(a)
the EIA report submitted in respect of the proposed development;
(b)
any additional information submitted in respect of the development;
(c)
any representations made by any consultation body, or other public
body, consulted in respect of the development in accordance with these
Regulations; and
(d)
any representations duly made by any other person about the
environmental effects of the development;
...
3.
Prohibition on granting planning permission without an environmental
impact assessment
The planning authority or the Scottish Ministers, as the case may be, must not grant
planning permission for EIA development unless an environmental impact
assessment has been carried out in respect of that development and in carrying out
such assessment the planning authority or the Scottish Ministers, as the case may be,
must take the environmental information into account.
...
5.
--Environmental Impact Assessment Report
(1)
An application for planning permission for EIA development must be
accompanied by an environmental impact assessment report ("EIA report").
10
(2)
An EIA report is a report prepared in accordance with this regulation by the
developer which includes (at least)--
(a)
a description of the development comprising information on the site,
design, size and other relevant features of the development;
(b)
a description of the likely significant effects of the development on the
environment;
(c)
a description of the features of the development and any measures
envisaged in order to avoid, prevent or reduce and, if possible, offset likely
significant adverse effects on the environment;
...
(3)
Where a scoping opinion (or scoping direction) is issued, the EIA report must
be based on that scoping opinion (or scoping direction, as the case may be), and
include the information that may reasonably be required for reaching a reasoned
conclusion on the significant effects of the development on the environment, taking
into account current knowledge and methods of assessment.
...
21.
--Publication of EIA report
(1)
Where, in relation to an EIA application the developer submits to the
planning authority or the Scottish Ministers, as the case may be, an EIA report the
planning authority or the Scottish Ministers, as the case may be, must publish as
soon as possible a notice in accordance with this regulation.
(2)
Notice under paragraph (1) must--
(a)
describe the application and the proposed development to which the
EIA report relates;
(b)
state that the proposed development is subject to environmental
impact assessment and, where relevant, state that it is likely to have
significant effects on the environment in an EEA State;
(c)
state that the EIA report is available for inspection free of charge and
the times and places at which, and the means by which, the EIA report is
available for inspection;
(d)
state how copies of the EIA report may be obtained;
(e)
state the cost of a copy of the EIA report;
11
(f)
state how and by what date representations may be made (being a
date not earlier than 30 days after last date on which the notice is published);
(g)
provide details of the arrangements for public participation in the
decision making procedure including a description of how notice is to be
given of any subsequent submission by the developer of additional
information and how representations in relation to that additional
information may be made; and
(h)
state the nature of possible decisions to be taken in relation to the
application and provide details of the authority by which such decisions are
to be taken.
...
22.
--Consultation where EIA report received by planning authority
(1)
Where a planning authority receive in connection with an EIA application
(including an EIA application under consideration on review under
section 43A(8) (right to require review of planning decisions and failure to take such
decisions)) an EIA report, they must--
...
(b)
consult the bodies mentioned in paragraph (2) about the EIA report
and inform them how and by what date representations may be made (being
a date not earlier than 30 days after the date on which the copy of the EIA
report was sent).
(2)
The bodies are--
(a)
the consultation bodies;
...
26.
--Supplementary information and evidence relating to EIA reports
(1)
This regulation applies where the Scottish Ministers or the planning
authority, are dealing with--
(a)
an EIA application;
...
(2)
In order to ensure the completeness and quality of the EIA report, the
planning authority or the Scottish Ministers, as the case may be, must (having regard
in particular to current knowledge and methods of assessment) seek from the
developer supplementary information about a matter to be included in the EIA
12
report in accordance with regulation 5(2) which in the opinion of the planning
authority or the Scottish Ministers, as the case may be, is directly relevant to reaching
a reasoned conclusion on the significant effects of the development on the
environment.
(3)
The developer must provide that supplementary information and such
information is referred to in these Regulations as "supplementary information".
(4)
The planning authority or the Scottish Ministers may in writing require to be
produced to them such evidence in respect of any EIA report or additional
information as they may reasonably call for to verify any information contained in
the EIA report or such additional information, as the case may be.
27.
--Publication of additional information
(1)
Where additional information is provided to the planning authority or the
Scottish Ministers, regulations 20 to 22, 24 and 25 apply to the provision of such
additional information as they apply to the submission of an EIA report as if
references to the EIA report were references to that additional information.
..."
[14]
Regulation 48 of the Habitat Regulations (as amended by the Conservation (Natural
Habitats, &c.) Amendment (Scotland) Regulations 2007) provides:
"48.
--Assessment of implications for European site
(1)
A competent authority, before deciding to undertake, or give any consent,
permission or other authorisation for, a plan or project which­
(a)
is likely to have a significant effect on a European site in Great Britain
... (either alone or in combination with other plans or projects), and
(b)
is not directly connected with or necessary to the management of the
site,
shall make an appropriate assessment of the implications for the site in view of that
site's conservation objectives.
(2)
A person applying for any such consent, permission or other authorisation
shall provide such information as the competent authority may reasonably require
for the purposes of the assessment or to enable the competent authority to determine
whether an appropriate assessment is required.
(3)
The competent authority shall for the purposes of the assessment consult the
appropriate nature conservation body and have regard to any representations made
by that body within such reasonable time as the authority may specify.
13
(4)
They shall also, if they consider it appropriate, take the opinion of the general
public; and if they do so, they shall take such steps for that purpose as they consider
appropriate.
(5)
In the light of the conclusions of the assessment, and subject to regulation 49,
the authority shall agree to the plan or project only after having ascertained that it
will not adversely affect the integrity of the European site ...
(6)
In considering whether a plan or project will adversely affect the integrity of
the site, the authority shall have regard to the manner in which it is proposed to be
carried out or to any conditions or restrictions subject to which they propose that the
consent, permission or other authorisation should be given."
The judicial review
The issues
[15]
In this petition for judicial review the petitioner seeks reduction of the planning
permission. In a Joint Statement of Issues the parties identified the following issues which
they ask the court to determine:
1.
Whether the respondent erred in law by failing to consider the environmental
impacts of the proposed visitor facilities and how visitors will be managed outwith
the LEZ when deciding to grant planning permission?
2.
Whether the respondent erred in law by failing to consider whether HIE can
implement the mitigation measures required by condition 11 or what the
consequences of a failure to do so would be when deciding to grant planning
permission?
3.
Whether the respondent erred in law by failing to publish additional and/or
supplementary information as required under condition 27(1) read with
condition 21(1) and (2) of the Town and Country Planning (Environmental Impact
Assessment) (Scotland) Regulations 2017?
14
4.
Whether the respondent erred in law by failing to consider or secure the
implementation of measures required to mitigate non-visitor related operational
effects of the proposed development on ornithological interests?
5.
Whether the respondent erred in law by proceeding on an inadequate and
incorrect factual basis, and failing properly to make an appropriate assessment under
regulation 48 of the Conservation (Natural Habitats, &c) Regulation 1994 before
granting planning permission?
6.
Whether the respondent erred in law by failing to consider the potential legal
consequences arising from the disturbance of bird species listed on Schedule 1 or
from the harassment of bird species listed on Schedule 1A to the Wildlife and
Countryside Act 1981?
7.
Whether in the circumstances the court should exercise its discretion to
reduce the decision?
I find it convenient to examine and answer each of these questions in turn.
1.
Whether the respondent erred in law by failing to consider the environmental
impacts of the proposed visitor facilities and how visitors will be managed outwith the
LEZ when deciding to grant planning permission?
The submissions for the petitioner
[16]
Senior counsel for the petitioner submitted that the respondent had erred in law in
failing to treat the SHS and the visitor facilities as a single integrated development. It had
erred in law in not being alive to the danger of the salami slicing of applications for
development and to the need to avoid a scenario whereby HIE obtained a foot in the door
(Pearce v Secretary of State for the Environment [2021] EWHC 326 (Admin); Brown v Carlisle
15
City Council [2010] EWCA Civ 523, [2011] Env LR 5). If the application had not been for the
integrated development, it ought at least to have identified detailed proposals for the visitor
facilities. HIE had not shown that it would not have been reasonably possible to do that.
That was the test (Pearce v Secretary of State for the Environment, para [116](iv)). There ought
to have been an environmental assessment of the cumulative impact of the SHS and the
visitor facilities. As matters stood, the size, nature and locations of the visitor facilities had
not been identified by HIE, and there had been no assessment of their likely environmental
impact. In those circumstances the respondent had not complied with regulations 3 and 5 of
the 2017 Regulations. It had been perverse of the respondent to follow the course which it
had.
The submissions for the respondent and HIE
[17]
Senior counsel for the respondent and for HIE submitted that there had been no
salami slicing. That involved splitting what was truly a single development in an attempt to
avoid an appropriate cumulative assessment of environmental impact. Developments
which were related but were progressed separately for good reasons did not require to be
treated as a single development. Here there was sufficient information to enable the making
of the SHS application, but insufficient information at present to enable making the
application (or applications) which would be required to develop aspects of the visitor
facilities. For good reason, there was uncertainty at present as to precisely what would be
required by way of visitor facilities. For example, the person who was to be responsible for
the VMP and its implementation - the LSO - had not been appointed. The radius of the LEZ
would be dependent upon licensing regulations which had not yet been made. The EIAR in
respect of the proposed development only required to reflect current knowledge and
16
methods of assessment (see eg the 2017 Regulations, regulation 5(3) and regulation 26(2)).
When a further application relating to visitor facilities was made the cumulative
environmental impact of the SHS and the visitor facilities would be assessed. The present
case fell to be distinguished from Brown v Carlisle City Council and Pearce v Secretary of State
for the Environment. In those cases information which would have enabled a cumulative
assessment of the impact of different aspects of what was considered to be a single
integrated development was available at the time of the application. Not so here. The
position in the present case was more akin to that in R (Khan) v London Borough of Sutton &
Others [2014] EWHC 3663 (Admin) and Preston New Road Action Group v Secretary of State for
Communities and Local Government and Another [2018] EWCA Civ 9. In both of those cases
information concerning the related development was limited and the court rejected the
suggestion that there was salami slicing. The respondent had been entitled to decide as it
had in the circumstances. It had not erred in law. It was not in breach of regulations 3 or 5
of the 2017 Regulations. It had not acted perversely in following the course which it had.
Decision and reasons
[18]
I am not persuaded that the respondent has erred in law. In my view this is not a
case where there has been salami slicing of a project which ought to have been assessed as a
single development. On the contrary, there is a rational justification for not identifying the
proposed location of visitor facilities and for not applying for permission to develop them at
this stage.
[19]
Until the size of the LEZ is clarified there is obvious uncertainty about appropriate
locations for visitor viewing areas or car parking. It was not sensible for the petitioner to
attempt to identify such locations. Nor was it sensible to seek planning permission for their
17
development, or to include an assessment of their environmental impacts as part of the
present application. In my view none of those things were things which HIE were
reasonably required to do.
[20]
Development of the visitor facilities will require a further application for planning
permission. At that stage the cumulative environmental impact of SHS and the visitor
facilities will require to be assessed.
[21]
Accordingly, the circumstances of the present case appear to me to be clearly
distinguishable from those in Brown v Carlisle City Council and Pearce v Secretary of State for
the Environment, and to be much more akin to the circumstances in R (Khan) v London
Borough of Sutton & Others and Preston New Road Action Group v Secretary of State for
Communities and Local Government and Another.
[22]
It follows in my opinion that the petitioner has not made good this ground of
challenge. It has not demonstrated that the respondent has breached regulation 3 or
regulation 5 of the 2017 Regulations or that it has erred in law in any other respect. In my
opinion the respondent was entitled to take the course which it did.
2.
Whether the respondent erred in law by failing to consider whether HIE can
implement the mitigation measures required by condition 11 or what the consequences of a
failure to do so would be when deciding to grant planning permission.
The submissions for the petitioner
[23]
Senior counsel for the petitioner submitted that on a proper construction of the first
part of condition 11 (i.e. up to the end of subparagraph k)), it was a positive condition not a
negative condition. It obliged the developer to submit and obtain approval for a VMP
within 6 months of the first launch. The second part of the condition - dealing with
18
implementation and review of the VMP - was also a positive condition. The difficulty for
the respondent and HIE was that there was no basis upon which the respondent could
conclude that the land on which the visitor facilities would require to be constructed was
land which the interested party controlled. The condition was unlawful because it required
the interested party to do things which it might not be in a position to perform. The
condition had been fundamental to the granting of permission. If the condition was
unenforceable the permission could not stand, it would have to be reduced.
The submissions for the respondent and HIE
[24]
It was submitted that the first part of condition 11 is a negative condition. The
developer was not obliged to fulfil it, but unless and until it did there could be no launch.
The implementation part of the condition provided for enforcement and review of the VMP
once it has been agreed, i.e. if the negative condition was fulfilled. It would be wrong to
suppose that the agreed VMP would require the developer to do something which it was not
able to perform. The condition was valid and enforceable.
Decision and reasons
[25]
In my opinion the first part of condition 11 is a negative condition (Grampian Regional
Council v Secretary of State for Scotland and City of Aberdeen District Council 1984 SC (HL) 58;
British Railways Board v Secretary of State for the Environment and Others [1993] 3 PLR 125;
paragraph 38 of Planning Circular 4/1998: the use of conditions in planning permissions).
On a proper construction it does not oblige the developer to agree a VMP with the content
described in subparagraphs a) to k). Rather, it provides that the SHS cannot be operated
unless such a VMP is agreed at least 6 months before the launch date.
19
[26]
The second part of the condition has effect where a VMP has been duly approved in
accordance with the first part of condition 11. The second part contains positive conditions
which would require to be complied with in that event. It is not a negative condition.
Accordingly, it would be an unlawful condition if it required HIE to do things which it was
clear that it could not do.
[27]
However, in my opinion it is not clear that the VMP which would be approved
would be bound to contain provisions of that nature (eg a requirement that HIE erect visitor
facilities on land which it does not control). I agree with senior counsel for the respondent
and HIE that for present purposes the court ought not to proceed on the basis that the
approved VMP will require HIE to do something which it will be unable to perform.
[28]
It follows that I reject the contention that condition 11 is unlawful.
3.
Whether the respondent erred in law by failing to publish additional and/or
supplementary information as required under condition 27(1) read with condition 21(1)
and (2) of the Town and Country Planning (Environmental Impact Assessment) (Scotland)
Regulations 2017.
The submissions for the petitioner
[29]
Senior counsel for the petitioner submitted that the VMSC had been supplementary
information, failing which additional information, within the meaning of regulation 2(1),
read with regulation 5(2) and regulation 26(2) of the 2017 Regulations, and that it should
have been published (condition 27(1) read with condition 21(1) and (3)).
[30]
The RSPB Technical Note dated 8 April 2020 had included information (eg about
vantage point locations) that was not included within the EIAR or supporting
20
documentation. It also purported to address survey limitations identified by RSPB Scotland.
It was additional information that should have been published.
[31]
Technical Appendices 6.1 to 6.5 in Volume 4 of the EIAR were the reports of the
ornithological surveys undertaken by HIE in support of the development. They were part of
the EIAR. Accordingly, the respondent should have published appropriately redacted
versions of them (condition 21).
The submissions for the respondent and HIE
[32]
It was submitted that neither the VMSC nor the RSPB Technical Note were requested
by the respondent as "supplementary information". Nor were they additional information.
They did not require to be published by the respondent.
[33]
The petitioners had queried with the respondent whether the VMSC was
supplementary information in terms of the 2017 Regulations which required to be
published. The report of handling noted this suggestion but opined that the VMSC
provided clarifications, did not change the scope of the development, did not alter the
conclusions of the EIAR, and that it was not supplementary information. The RSPB
Technical Note responded to RSPB's objection and was prepared by HIE primarily to show
where in the EIAR the issues raised by RSPB had been addressed. It merely provided
clarification of matters already covered in the EIAR.
[34]
The respondent's assessments that the VMSC and the RSPB Technical Note were not
additional information were assessments which were open to it. They were not perverse.
[35]
Even if the VMSC and RSPB Technical Note had required to be advertised, the
petitioner was not prejudiced by any failure to publish them. It had sufficient opportunity
to make its concerns known to the respondent. If the respondent had been required to
21
publish the VMSC it would only have been obliged to publish the redacted version. That
had been made available on its website.
[36]
The Technical Appendices were not mentioned in the petition. The complaint first
emerged in the note of argument. The Technical Appendices had been available on request,
and on 6 March 2020 the petitioner had been provided with unredacted versions after
making a request for them. In view of their contents it had not been unreasonable for the
respondent to conclude that they need not be published.
Decision and reasons
[37]
In my opinion neither the VMSC nor the RSPB Technical Note were supplementary
information. Neither was requested by the respondent in terms of regulation 26(2).
[38]
In my judgement it was open to the respondent to decide that the VMSC provided
clarifications, that it did not change the scope of the development, and that it did not alter
the conclusions of the EIAR. It was also open to it to conclude that it was not additional
information and that it did not require to be published.
[39]
Similarly, in my view the respondent was entitled to decide that the RSPB Technical
Note responded to RSPB's objection, that it was prepared by HIE primarily to show where in
the EIAR the issues raised by RSPB had been addressed, and that it merely provided
clarification of matters already covered in the EIAR. It was entitled to conclude that it was
not additional information and that it did not require to be published.
[40]
In neither case am I persuaded that the respondent erred in law in acting as it did.
[41]
Strictly speaking, the Technical Appendices were part of the EIAR and they ought to
have been published. However, I am not satisfied that this breach is material, or that it
caused any substantial prejudice to the petitioner or anyone else.
22
[42]
If, contrary to my view, the VMSC and RSPB Technical Note ought to have been
advertised, I am not persuaded that the petitioner was prejudiced by any failure to publish
the VMSC. It had sufficient opportunity to make its concerns about it known to the
respondent. Moreover, if the respondent had been required to publish the VMSC it would
only have been obliged to publish the redacted version. That had been available on its
website. On the other hand, the RSPB Technical Note was not available and, prima facie, the
petitioner and the RSPB may have been prejudiced by that. Whether that prejudice would
have been material enough to justify reduction of the decision would have been a matter in
relation to which I would have sought further submissions.
4.
Whether the respondent erred in law by failing to consider or secure the
implementation of measures required to mitigate non-visitor related operational effects of
the proposed development on ornithological interests?
The submissions for the petitioner
[43]
Senior counsel for the petitioner submitted that the respondent erred in law by
failing to consider or secure the implementation of measures required to mitigate non-visitor
related operational effects of the proposed development on ornithological interests. The
essence of the complaint was that the relevant conditions attached to the planning
permission did not contain effective mechanisms to secure their implementation.
The submissions for the respondent and HIE
[44]
The potential effects of the development on ornithological interests were considered
in chapter 6 of the EIAR and in paragraphs 10.60-10.83 of the report of handling.
Appropriate mitigation measures were identified and implemented. Assessment of the
23
mitigation proposed in the EIAR, including its sufficiency, was a matter of planning
judgement for the respondent, and not a matter that can ground a legal challenge.
Decision and reasons
[45]
I am not persuaded that this is a good ground of challenge. In my opinion
assessment of the mitigation proposed in the EIAR, including its sufficiency, was a matter of
planning judgement for the respondent. I am not satisfied that the respondent erred in law
in exercising that planning judgement.
5.
Whether the respondent erred in law by proceeding on an inadequate and incorrect
factual basis, and by failing properly to make an appropriate assessment under
regulation 48 of the Conservation (Natural Habitats, &c) Regulation 1994 before granting
planning permission?
The submissions for the petitioner
[46]
Senior counsel for the petitioner submitted that the respondent had not complied
with its obligation to make an appropriate assessment under regulation 48 of the Habitats
Regulations. It was not clear that it had in fact endorsed, adopted or otherwise approved
the document titled "Appropriate Assessment" (attached as Appendix 2 to the report of
handling).
[47]
If the respondent had adopted the assessment in Appendix 2, it had nevertheless
erred in law by proceeding on an inadequate and incorrect factual basis. The petitioner and
RSPB had raised concerns about the integrity of the ornithological surveys. However the
report of handling had not detailed those concerns. In order to enable the respondent to
make an appropriate assessment and to conclude that, with mitigation, there would be no
24
adverse effects on the integrity of the SAC and the SPA, the report should either have
questioned the factual basis for the concerns raised by the petitioner and RSPB or explained
why they did not matter. Insofar as the respondent was relying on the views of SNH, it
required to be satisfied that SNH had resolved those differences (and how they had done
so).
[48]
Further, in terms of article 6(3) of the Habitats Directive and regulations 48(5) and (6)
of the Habitats Regulations a competent authority can only agree to a plan or project after
having ascertained that it will not adversely affect the integrity of the site concerned, having
regard to the manner in which it is proposed to be carried out or to any conditions or
restrictions subject to which that authorisation may be given. A plan or project can only be
authorised where the competent authority is convinced that it will not adversely affect the
integrity of the site concerned. It can only be certain that a plan or project will not adversely
affect the integrity of the site where no reasonable scientific doubt remains as to the absence
of such effects (Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van
Landbouw, Natuurbeheer en Visserij (C-127/02) [2005] 2 CMLR 31, paragraphs 56-58;
Sweetman v An Bord Pleanala (C-258/11) [2014] PRST 1092 at paragraph 40). On the
information before it the respondent could not reasonably have concluded that there was no
reasonable scientific doubt that the proposed development would not have an adverse effect
on the integrity of the SAC and the SPA. In the absence of (i) details of the proposed visitor
facilities and information about how visitors will be managed outwith the LEZ; (ii) the
information referred to in condition 11; and (iii) certainty that HIE can implement the
proposed mitigation measures or what the consequences of a failure to do so would be, the
respondent had not been in a position to be able to make an appropriate assessment of the
environmental effects of visitor facilities and visitor management activities on the integrity
25
of the SAC and the SPA, or to conclude that the proposed development will not adversely
affect the integrity of those sites.
The submissions for the respondent and HIE
[49]
It was clear that the respondent had endorsed the appropriate assessment in
Appendix 2. The report of handling required to give guidance and advice to the respondent
in relation to the key determining issues in dispute. It did not require to provide detailed
comment in relation to all representations or evidence. The respondent had considered
whether the ornithological surveys were adequate and it had attached importance to the fact
that SNH was content with them. The respondent had been entitled to proceed to make an
assessment on the basis of the material which was before it, which included the EIAR, the
VMP, the VMSC, and the advice from SNH. The respondent's conclusion that the proposed
development would not have an adverse effect on the integrity of the SAC and the SPA was
a matter of planning judgement. It was a conclusion that the respondent was entitled to
reach. It was the same conclusion as SNH had reached. The existence or non-existence of a
reasonable doubt is primarily a matter of fact for the decision-maker to determine (RSPB v
Scottish Ministers 2017 SC 552, [2017] CSIH 31, at para [206]). The respondent was entitled to
come to the conclusions that it came to. It was entitled, and expected, to place considerable
weight on the opinion of SNH as the relevant statutory consultee (R (Morge) v Hampshire
County Council [2011] 1 WLR 268, at paragraph 45; RSPB v Scottish Ministers, at para [228]).
Decision and reasons
[50]
Paragraphs 10.64 and 10.65 of the report of handling clearly directed the respondent
to the appropriate assessment in Appendix 2. That document made it plain that the
26
respondent required to make an appropriate assessment. In my view the respondent was
fully aware of that, and it endorsed the assessment in Appendix 2.
[51]
I am satisfied that paragraph 10.78 of the report of handling adequately raised the
issue of the robustness of the ornithological surveys. In my opinion it was not necessary for
the report of handling to say more. It was a matter of considerable significance that SNH,
the statutory consultee, did not have concerns about the robustness of the surveys.
[52]
The amount of information required by a planning authority in order to determine a
planning application is a matter of planning judgement. In my opinion the respondent was
entitled to decide that it had adequate information to undertake an appropriate assessment
and to determine the application. On the basis of the information available to it, including
the EIAR, the VMP, the VMSC and the advice from SNH, it was open to the respondent to
conclude that the potential environmental effects (both visitor and non-visitor) of the
development could be addressed by the proposed conditions attached to the permission,
with the result that the development would not have an adverse effect on the integrity of the
SAC and the SPA. I do not accept that it was not possible for the respondent to reach that
conclusion without knowing the contents of the approved VMP.
[53]
I am not persuaded that the respondent did not apply the correct test. In my opinion
there is nothing in the appropriate assessment which suggests the existence of any such
error, and there is nothing in the report of handling which causes me to conclude that the
report led the respondent into any such error.
[54]
The existence, or otherwise, of a reasonable doubt is primarily a matter of fact for the
decision-maker to determine (RSPB v Scottish Ministers, at para [206]). In my opinion the
respondent was entitled to come to the conclusions which it came to. It was entitled, and
expected, to place considerable weight on the opinion of SNH as the relevant statutory
27
consultee (R (Morge) v Hampshire County Council, at paragraph 45; RSPB v Scottish Ministers,
at para [228]). SNH's view was that sufficient information had been provided to
demonstrate that a practical and workable solution to the issue of visitor management could
be found which would avoid an adverse effect on the integrity of the SAC and the SPA.
[55]
It follows that I am not satisfied that this ground of challenge is well founded.
6.
Whether the respondent erred in law by failing to consider the potential legal
consequences arising from the disturbance of bird species listed on Schedule 1 or from the
harassment of bird species listed on Schedule 1A to the Wildlife and Countryside Act 1981?
The submissions for the petitioner
[56]
It was submitted that the respondent ought to have considered the potential legal
consequences arising from the disturbance of bird species listed on Schedule 1 to the
Wildlife and Countryside Act 1981 ("the WCA"), and from the harassment of bird species
listed on Schedule 1A, during the operational phase of the proposed development. Its
failure to do so was an error of law. The VMS, the VMSC, and the decision granting
planning permission did not provide a mechanism whereby unlawful disturbance and
harassment of those birds could be avoided. In the absence of such a mechanism there
might have to be a moratorium on launches during the breeding season, in which case the
assumption in the EIAR of one launch per month may not have been justified. This was a
matter which ought to have been considered by HIE and the respondent.
The submissions for the respondent and HIE
[57]
The respondent did not require to detail or consider the other potential legal
consequences arising from the disturbance of birds listed in Schedule 1 to the WCA or from
28
the harassment of birds listed in Schedule 1A. It required to consider the application in
terms of the Town and Country Planning (Scotland) Act 1997 and other planning policy
considerations in relation to the appropriateness of the land use proposed. It did not have to
consider matters covered by other regulatory regimes, and it did not require to impose a
condition in relation to them. The report of handling did not have to address them.
Licensing and other matters of regulatory control could be left to the relevant regulatory
authorities to consider (see R (Frack Free Balcombe Residents Association) v West Sussex County
Council [2014] EWHC 4108 (Admin), per Gilbart J at para [100]). The respondent was
entitled to focus on whether the proposed development was an acceptable use of the land.
In any case, the issue of the breeding season and monthly launches was considered and
discussed at the planning committee meeting at which the decision was taken, and the
representative from SNH was satisfied that permission for the development could be
granted subject to the proposed conditions.
Decision and reasons
[58]
I am not persuaded that the petitioner's contention is well founded. The report of
handling did not have to address the potential legal consequences arising from possible
contraventions of the WCA. In my opinion licensing and other matters of regulatory control
could be left to the relevant regulatory authorities to consider (see R (Frack Free Balcombe
Residents Association) v West Sussex County Council, per Gilbart J at para [100]). The possible
effect of the breeding season was a matter which SNH and the respondent considered, but
neither concluded that it ought to prevent the grant of planning permission subject to the
recommended conditions. In my view no error of law on the respondent's part has been
established.
29
7.
Whether in the circumstances the court should exercise its discretion to reduce the
decision?
The submissions for the petitioner
[59]
Senior counsel for the petitioner submitted that in the event of issues 1, 2, 4, 5 or 6
being resolved in the petitioner's favour the decision should be reduced. So far as issue 3
was concerned, he accepted that if the court found that one or more of the VMSC, the RSPB
Technical Note and the Technical Appendices ought to have been published it would
require to consider whether anyone had been prejudiced by the relevant failure to publish.
The RSPB Technical Note in particular contained matters which RSPB might have wished to
respond to.
The submissions for the respondent and HIE
[60]
I did not understand senior counsel for the respondent or senior counsel for HIE to
quarrel with the proposition that in the event of issues 1, 2, 4, 5 or 6 being resolved in the
petitioner's favour the decision would require to be reduced. In relation to issue 3, their
position was that even if one or more of the three documents ought to have been published
the decision should not be reduced. There had been no material prejudice to the petitioner
or anyone else. Even if there had been some prejudice, there would have been no real
prospect of a different decision being reached if further submissions had been made.
30
Decision and reasons
[61]
Since I have held that none of the grounds of challenge is well founded it is
unnecessary to answer this question, and I do not propose to do so (other than to say what I
have already said in relation to issue 3).
Disposal
[62]
I shall sustain the third to eighth pleas-in-law for the respondent and the third to
eighth pleas-in-law for the interested party, repel the petitioner's pleas-in-law, and refuse
the petition. I shall reserve meantime all questions of expenses.


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