Last year a planning application for 15 wind turbines at Tormywheel, Fauldhouse was refused by West Lothian Council. The decision was appealed by the developers and granted consent by the Scottish Executive.
Attached to the consent was a condition requiring the developer to produce “as scheme for addressing aviation safeguarding issues related to Edinburgh Airport radar system and the Lowther Hill radar installation, including a timescale for implementation”. The condition stated that written approval for the planning authority shall not be given until BAA and NATS have confirmed in writing that they regard the scheme as satisfactory”.
The Scottish Consents Unit is taking a different approach by requiring that:
- there has been specification of the nature and extent of the mitigation measures required;
- there is clarity about the identification of the type of solution(s) to be developed; and
- there is agreement between the developer and the relevant operator that the solution(s) can be delivered within a reasonable timeframe.
I question whether the Tormywheel decision is legally robust because of the aviation condition. The British Railways Board v SSE in 1994 established that it is lawful for a local planning authority to grant planning permission, even in respect of land not within the planning applicant’s ownership, subject to a negative condition restricting its implementation, until some event has occurred and that the mere fact that a desirable condition worded in a negative form appears to have no reasonable prospects of fulfillment does not mean planning permission must necessarily be refused as a matter of law.
However the judgement (as noted in Circular 11/95 for England and Wales) leaves open the possibility for the Secretary of State to maintain as a matter of policy that there should be at least a reasonable prospect of the action in question being performed within the time limit imposed by the permission. Also the judgement in Merritt v SSETR and Mendip District Council states that it is not possible to impose such a condition when there are no prospects of the action in question being performed within the time-limit imposed by
the permission.
Even if you argued that there are reasonable prospects of the action in question being performed you still have demonstrate that the grampian condition is “precise”- very questionable in the Tormywheel
decision.
The danger with the use of these imprecise conditions will be that they will leave everyone except the Inspector (wherever she might be), the Developer, the airport and the LPA wondering who is responsible
for doing what. These conditons may store up problems later on e.g. when it comes to interpreting them and for approving the details at discharge of condition stage.
My view is that the Scottish Consents Unit appear to be taking a sensible approach which will prevent a raft of potentially undeliverable consents. Even though there may be benefits for the developers who get the first few permissions with this type of condition I believe it may very quickly cause chaos later on.
