CRE Energy Ltd Re: A Decision Of The Scottish Ministers [2006] ScotCS CSOH

OUTER HOUSE, COURT OF SESSION

[2006] CSOH 131

OPINION OF LORD KINCLAVEN

in the Appeal to the Court of Session

under section 239 of the Town and Country Planning (Scotland) Act 1997

CRE ENERGY LIMITED

Appellant;

against

A decision of the Scottish Ministers

by their Reporter W M H Patterson Esq.

dated 3 March 2005

________________

Appellant: C M Campbell QC; McGrigors

First Respondents: Crawford; Office of the Solicitor to the Scottish Executive

Second Respondents: J D Campbell QC; Biggart Baillie

29 August 2006

Introduction

[1] This is an appeal under section 239 of the Town and Country Planning (Scotland) Act 1997 ("the 1997 Act") by CRE Energy Limited ("The Appellant") against a decision of the Scottish Ministers ("the First Respondents") by their Reporter W M H Patterson Esq. ("the Reporter") dated 3 March 2005. The Second Respondents are The Highland Council, Glenurquhart Road, Inverness.

[2] The appeal relates to an application by the Appellant for planning permission for a development of wind turbines and associated infrastructure at Borrowston Mains, Dounreay, Thurso, Caithness.

[3] That application was refused by Highland Council.

[4] The Reporter refused an appeal.

[5] The Appellant appealed to the Court of Session and argued that the Reporter's decision should be quashed.

[6] At the hearing of the appeal, Mr Colin Campbell QC appeared for the Appellant. Ms Crawford, Advocate, appeared for the Scottish Ministers. Mr John D Campbell QC appeared for the Highland Council.

[7] In outline, the Grounds of Appeal relate to two main areas of the Reporter's decision, namely:-

(Firstly) Landscape and Visual Impacts, and

(Secondly) Noise impacts.

[8] The Appellant's basic submission was that the decision of the Reporter was not within the powers of the 1997 Act and was ultra vires.

[9] In the whole circumstances, and for the reasons outlined below, I have decided to refuse the appeal.

[10] In summary, I was satisfied that the Reporter's decision in relation to landscape and visual impacts was well founded. I was also satisfied that the adverse conclusion in relation to landscape and visual impacts was bound to lead to refusal of the appeal. The Reporter's decision refusing the appeal was within the powers of the 1997 Act.

[11] I was not satisfied that the decision should be quashed.

[12] My reasons are as follows.

Overview
[13] I propose to deal with the issues in the following order:-

· The Statutory Provisions;

· The Reporter's Decision;

· The Appellant's Position - in General

· Landscape and Visual Impacts

o The Appellant's position;

o The Position of the Scottish Ministers;

o The Position of the Highland Council;

· Noise Impacts

o The Appellant's position;

o The Position of the Scottish Ministers;

o The Position of the Highland Council; and

· Discussion and Decision.

The Statutory Provisions

[14] Section 239 of the 1997 Act provides inter alia that:-

"(1) If any person -

(a) is aggrieved by any order to which this section applies and wishes to question the validity of that order on the grounds -

(i) that the order is not within the powers of this Act,

he may make an application to the Court of Session under this section."

[15] Section 239(5) provides inter alia that:-

"On any application under this section the Court of Session- ...

(b) if satisfied that the order ... in question is not within the powers of the Act ... may quash that order ..."

The Reporter's Decision

The Decision Letter - Generally

[16] In order to see the parties' submissions in proper context, it may be helpful to outline the Reporter's decision of 3 March 2005 in some detail.

[17] The Reporter, W M H Patterson, was appointed to determine an appeal by CRE Energy Limited against the refusal by the Highland Council of planning permission for the "erection of ten turbines and associated infrastructure ... ", at Borrowston Mains, Dounreay.

[18] The Reporter held a public local inquiry into the appeal at Thurso on 7 to 10 December 2004 and 4 February 2005. He made an accompanied tour of what he considered to be relevant sites on the afternoon of the first day and made further unaccompanied visits during and after the first four days of the inquiry, including viewing towards the site from the Scrabster to Stromness ferry, in what he described as very clear conditions, on 11 December. His final site visit was on the afternoon of 4 February, when he walked from Achreamie, past the site along the A836, and through the Forss Business Park.

[19] The Reporter sets out the Factual Background in section 2 of his decision letter. He also gives details of the Site Description, the Application, Development Plan Policy and Scottish Executive Policy and Guidance.

[20] In general terms the appeal site is some 11 km due west of central Thurso, and close to the north-east of the Dounreay Nuclear Establishment. It corresponds to the lands of Borrowston Farm and is an approximate rectangle bounded to the north-west by a low, rocky shoreline and to the south-east by a straight stretch of the A836 road which connects Thurso and the north coast of Sutherland. (see paragraph 2.1).

[21] The application for planning permission was refused by the Highland Council for the following reasons (paragraph 2.5):-

(1) By virtue of their scale, siting and layout, the ten turbines proposed would represent a dominant and linear feature in the landscape between Forss and the Dounreay Nuclear Establishment to the extent that they are considered unacceptable in their adverse impact on the landscape character and visual amenity of the coastal strip when seen from the A836 road, and from housing nearby, particularly at Buldoo, Achreamie and properties close to the A836.

(2) Turbines 1 and 6 will in particular have an adverse impact on the residential amenity of nearby properties at Buldoo while turbines 7-10 are closer than desirable to the A836 in the context of the proposed linear layout, residential amenity and scenic views.

(3) The proposals are therefore contrary to the terms of Structure Plan Policy E2 in respect of visual impact, excessive to a degree in the context of Policy T6 which seeks to protect scenic views and Policy L4 in respect of maintaining and enhancing present landscape character. They are also contrary to Policy G2 in respect of adverse impact on individual and community residential amenity.

The Decision Letter - Development Plan Policy

[22] In relation to Development Plan Policy (paragraph 2.6 of the Decision Letter) the Highland Structure Plan includes the following policies:-

G2 Design for Sustainability

Proposed Developments will be assessed on the extent to which they: ...

[7] impact on individual and community residential amenity; ...

[10] demonstrate sensitive siting and high quality design in keeping with local character and historic and natural environment and in making use of appropriate materials; ...

Developments which are judged to be significantly detrimental in terms of the above criteria shall not accord with the Structure Plan.

E1 Distributed renewable energy developments

The Council supports the utilisation of the region's distributed renewable energy resource, including hydro, wind, wave and tidal stream power. Proposals will be assessed against the provisions of the General Strategic Policies. ...

E2 Wind Energy Developments

Wind energy proposals will be supported provided that impacts are not shown to be significantly detrimental. In addition to the General Strategic Policies, wind energy proposals will be assessed in respect of the following:

· visual impact

· noise; ... and

· cumulative effects.

T6 Scenic Views

The Council will protect important scenic views enjoyed from tourist routes and viewpoints, particularly those specifically identified in Local Plans. There will be a presumption against development in narrow areas of land between roads and railways and open water.

L4 Landscape Character

The Council will have regard to the desirability of maintaining and enhancing present landscape character in the consideration of development proposals, including offshore developments.

[23] In relation to the Caithness Local Plan, the Reporter notes (in paragraph 2.7) that policy 23 sets a 5 km safeguarding zone around the Dounreay Nuclear Establishment and seeks to maximise economic opportunities during the decommissioning period. By Primary Policy PP3 for areas including the appeal site "The council will presume against development particularly where there would be significant harm to heritage, amenity or public health". The local plan also includes the following policies:-

26. The former US Navy communications base at Forss on the coast between Thurso and Dounreay is a large scale complex available for development. The major extent of the site and buildings, together with the existing infrastructure, suggest[s] potential for uses with a significant workforce and/or resident population. Consideration has been given to a range of uses including a research centre, a wind turbine site, long term secure storage, tourist facilities, residential and industrial storage associated with the oil industry. ...

46. The Council will seek to identify and safeguard scenic views from unsympathetic development. Views from public roads to open water are particularly important for amenity and tourism. To aid appreciation of scenic views the Council will favour improved lay-by parking, visitor interpretation and view point features, notably on the A9, A99 and A836.

[24] The proposals map shows the appeal site as within a policy 46 area (paragraph 2.8 of the Decision Letter).

The Decision Letter - Scottish Executive Policy and Guidance
[25] In relation to the Scottish Executive Policy and Guidance the Reporter notes (in paragraph 2.9 of the Decision Letter) inter alia that National policy is, with qualifications, strongly supportive of the use of renewable energy sources to generate electricity. National Planning Policy Guideline (NPPG) 6, revised 2000 (which is Production 6/12 in this appeal), includes the following paragraph:-

"22. The aim of the Scottish Executive therefore is to ensure that the commitment to renewable energy is satisfied and supported through development plan policies and development control decisions unless, at the site level, there are serious adverse impacts that can not be mitigated. These could include the following. ...

In relation to the local community, developments should not be permitted where they would have a significant long term detrimental impact on the amenity of people living nearby, and where the impact cannot be mitigated satisfactorily."

[26] The Reporter also notes (in paragraph 2.10) that more detailed guidance about wind energy developments, including assessment of noise impacts, is given in Planning Advice Note (PAN) 45. PAN 56 'Planning and Noise' advises, in paragraph 34: "Good acoustical design and siting of turbines is essential to ensure that there is no significant increase in ambient noise levels as they affect the environment and any nearby noise-sensitive property."

The Decision Letter - Consultation Responses on the Application

[27] The Consultation Responses on the Application are clearly set out by the Reporter in section 3 of his decision letter (page 6 et seq.).

Decision Letter - Main Points of the Cases for the Parties
[28] The Reporter then sets out the main points of the cases for the parties in section 4 of his decision letter (page 9 et seq.)

[29] I need not rehearse the details but, in overview, the main passages referred to by counsel included the following:-

Section 4.1 of the Decision Letter which outlines the case for the Appellant including in particular paragraphs 4.1.1 to 4.1.6 (concerning landscape and visual impacts), paragraphs 4.1.7 to 4.1.11 (concerning noise impacts) and paragraph 4.1.19 (concerning assessment in terms of section 25 of the Act).
Section 4.2 of the Decision Letter which outlines the case for the Highland Council including in particular paragraphs 4.2.1 to 4.2.4 (concerning landscape and visual impacts) and paragraphs 4.2.5 and 4.2.6 (concerning noise impacts).
Section 4.3 of the Decision letter which outlines the case for the Local Objectors including in particular paragraphs 4.3.1 to 4.3.5 (concerning landscape and visual impacts) and paragraphs 4.3.6 to 4.3.13 (concerning noise impacts).

The Decision Letter - The Reporter's Conclusions

[30] Having summarised the cases for the parties the Reporter sets out his conclusions in section 5 of his Decision Letter (at page 20 et seq).

[31] The Reporter states:-

"5.1 Section 25 of the Act requires the determination in this case to be made in accordance with the provisions of the development plan unless material considerations indicate otherwise. Development plan policies have been set out above. Other material considerations may include non-statutory policies and guidance of the Scottish Executive and the planning authority, and technical studies relevant to the issues covered in policies or otherwise germane to the impacts of the proposed development. I consider, from my inspection of the appeal site and the written submissions, that the issues to be determined are whether the proposal is consistent with the relevant provisions of the development plan and, if not, whether an exception to these provisions is justified by other material considerations. Because compliance, or otherwise, with development plan policies depends largely on assessment of environmental impacts, I shall first reach conclusions on the potentially significant environmental effects of the development so that these may inform assessment under the policies.

5.2 Throughout this process I shall take into account that national policy clearly favours wind energy development for its benefits in combating climate change, to the extent that I have not thought it necessary to record in detail claim and counterclaim about the specific contribution that the proposed development would, or would not, make in this regard. At the same time I shall heed the reservations in national policy about necessary safeguards in relation to environmental impacts, notably in the extracts that I have quoted above in paragraph 2.9."

The Reporter's Conclusions - Landscape and Visual Impacts
[32] In relation to landscape and visual impacts the Reporter's conclusions are set out in paragraphs 5.3 to 5.10 of his Decision Letter (at page 20 et seq).

[33] Those conclusions include the following:-

"5.3 In forming conclusions about landscape and visual impact I have found most useful the visualisations in the ES (the Environmental Statement) and supplementary material, and observations made on several site visits. I accept that the visualisations are professionally sound and technically accurate, while I recognise the inevitable under-representation of the impact of wind turbines in distant views, because of the limitations of photographic (whether film or digital) and printing resolution as against that of the human eye in very clear conditions; the visualisations also, of course, cannot show the effects of rotating blades. It seems to me that the professional integrity of the visualisations extended to the categorisation of impacts according to standard terminology, while the alternative method used for local objectors has problems aptly summed up in the quote from SNH in paragraph 4.1.1 above.

5.4 The great value of the visualisations lies in the objective treatment of the effects of topography. What they cannot do, and where I am forced to make judgements from my own observations, is to take account of the presence or absence, in views, of man-made or natural features of smaller scale, which might be 'read' with the proposed development and reduce its potential impact. ...

5.9 There remains the matter of visual impacts on the nearest residents, at a small number of properties. Seven houses would be closer to turbines than the 770m at 'Amon-Sul', used for visualisations. As can be simply plotted with a layout plan and a protractor, at 'Amon-Sul' turbine towers would be visible over an arc of some 50°, or a little over one eighth of the horizon; moving blades would add slightly to the angle. At Balmore the arc would be more like 80°. Although the bases of the more distant turbine towers would generally be concealed by slightly convex landform, the nearer turbines would be in almost full view from the properties. The slight drop in ground levels towards the sea would have little influence on the overall visual effects, at relatively near viewing, of rotating 66 m diameter turbine blades centred 60 m above ground. If an arbitrary distance of 700 m is taken as broadly representative of those properties less than 700 m from turbines, a turbine blade at the top of its passage, at 93 m above ground, forms an angle of view of nearly 12° to the slightly sloping ground. It may be helpful for the reader to envisage the angle as a slope of some 13.3% or a little over one in eight (12.5%); or by scaling down to a notional wind turbine of 9.3 m blade and 6.0 m hub height, seen from 70 m (a typical length for the plot of a large suburban villa); or by scaling up to a mountain slightly over 900m ('Munro' height) seen from 7 km.

5.10 Allowing for the considerations that only the nearest turbines would be seen at the highest angle, but conversely five houses would be 650 m or less from turbines rather than 700 m, I conclude that I might reasonably be sanguine about visual impacts on residential amenity if I knew either that those affected would be in the sector of the population most enthusiastic about windfarms, or that occupants would have a financial stake in the development. However, neither is the case. Even if I dismissed the evident hostility of near neighbours as untypical of the population as a whole, I could not with a clear conscience conclude that at the most affected houses views from gardens or windows towards the sea would not be involuntarily dominated by the windfarm to an extent that for the generality of occupants would impinge markedly on residential amenity. In reaching this adverse conclusion I would make clear that I give no weight to any minor blocking of sea views by turbine towers, as it is well established that protection of particular views from private properties is not a proper function of planning control. Returning to the visualisation for 'Amon-Sul', at 770 m from the nearest turbine and thus far from the worst case for visual impacts, I find that this conclusion can only be reinforced by the assessment in the ES of visual and landscape effects from viewpoint 10 as of 'major' significance; and by trying, in imagination, to add the effect of blade rotation to the strikingly dominant effect of the windfarm as shown in this visualisation, studied at the recommended viewing distance. In doing so I have borne in mind, as is necessary, that the visualisation shows only the affected part of the 360° outlook from the property."

The Reporter's Conclusions - Noise Impacts
[34] In relation to Noise impacts the Reporter's conclusions (at page 22) were as follows:-

"5.11 Assessment in this highly technical matter has not been helped by the preference of opposing experts for different methodologies, although in respect of predicted noise emissions from the proposed windfarm and immissions at affected properties the practical effect of these differences is minimal. I therefore accept that the likely immission levels, on standard assumptions, would be as stated in paragraph 4.1.8 above.

5.12 The several site visits made in widely varying conditions of wind speed and direction have been useful in demonstrating how much effect such conditions can have on perceived noise from wind turbines. Even with allowance for the greater number and size of turbines, and the possibility of excess noise from remaining mechanical problems, I was surprised that at Westerdale (grid ref. ND 127516), in conditions of light west to south-westerly breeze, noise was perceptible from the Causeymire windfarm some 2.4 km to the south-east. This is a very quiet inland location, and relatively sheltered, so it is easy to suppose that at times noise carried on the wind from the Causeymire windfarm operating in a strong breeze over its exposed site may reach Westerdale when the windspeed there is not enough to generate much masking noise from trees or other objects. I recognise that in terms of closeness to the sea and to a main road, and lack of sheltering vegetation or microtopography, the nearest houses to the appeal site are not likely to be closely comparable to Westerdale in regard to background noise levels.

5.13 In complete contrast to my experience at Westerdale on the afternoon of 10 December, was that near the Forss turbines on the afternoon of 4 February. This time there was a very light wind direct off the sea, which still had a strong swell crashing onto the shore, after strong winds earlier. The sound of individual vehicles on the A836 could easily be made out from Achreamie, some 1.31km away. The more westerly Forss turbine, turning at perhaps near the lowest effective windspeed, could hardly be distinguished at about 225 m on the road to the business park, above the noise from vehicles on the A836 some 600 m away and the shore some 450 m away. At less than 50 m the more easterly turbine was far from dominant above other noise. Yet in conditions of stronger westerly breeze in the early afternoon of 10 December, I found that noise from the nearer Forss turbine, or both, was readily perceptible at a position by the south-east corner of the ruined cliff-top St Mary's Chapel, some 480 m north-east of the nearer turbine, where there was shelter from the wind and from sea noise - though turbine noise was not perceptible from other, less sheltered positions around the ruin.

5.14 Whilst I have to be wary of generalising from a few subjectively observed instances to a different wind energy development in different conditions of background noise, I find it clear that there would be very great variability in the reception of turbine noise at the nearest houses. I also note that none of my observations, nor apparently any of the measurements of background noise for the appellants or objectors, have taken place both by night or quiet day, with relatively little traffic on the roads, and during one of those occasional spells of settled weather when even the north Atlantic waves become ripples and noise from the shore has little influence on background levels. Reliance on more usual background levels affected by north Atlantic breakers could thus lead to under-estimation of possible disturbance, such as distracting intrusion onto quiet evening activities outdoors in gardens, from turbine noise. Such activities would be most likely to take place during exactly the settled, summertime conditions when low background noise would also be most likely.

5.15 It is axiomatic that with the very lowest windspeeds there would be no movement, and hence no noise, from turbines. My own experience suggests that at windspeeds just enough to operate the turbines noise generated by them would be completely masked by routine daytime noise at distances less than that of the nearest house. By the reference windspeed of 8m/s or 28.8 km/h, it seems fair to expect that there would be some noise from waves striking the rocky shore, and an increase in background levels for some distance from the shore. However, something more than standard assessment models for inland sites seems to me to be needed for this coastal site relatively close to houses, as the ES and other appeal material provide no way of knowing whether there would be a windspeed at which significantly intrusive noise could carry from turbines to houses while the sea, after a calm spell, would not be disturbed enough to produce noise perceptibly contributing to background levels over 1 km away; nor is there any meteorological information about how frequent and prolonged calm conditions resulting in this scenario might be. The appellants' noise immission curves which I have accepted as reliable suggest that night-time background noise levels at around 6 m/s or 7 m/s, with very little contribution from the sea, would have to be remarkably low for there to be a difference of above 5dB(A); but it is not clear that such conditions could not occur too often to be ignored.

5.16 I note also: that background noise readings competently taken at different times may vary considerably because of varying conditions; the substantial reduction of the appellants' original data to take account of 'misbinning' and possible distortion by weather; the markedly lower figures produced by brief snapshot samples for the objectors albeit with differences of method; and the concession implicit in the appellants' willingness to make a new suite of background noise readings as a condition of planning permission. In the light of all these considerations I cannot avoid sharing in some degree the objectors' noise expert's misgivings about the background figures in the ES, and as later revised, which show levels of at least 40dB(A) at all times with windspeeds at or above 3m/s, at all four measurement sites.

5.17 At the same time, whilst the use of ETSU-R-97 is commended in PAN 45, it preceded advice from the World Health Organisation (WHO) to use more stringent lower limits in order to avoid disturbance and ensure restful sleep. Whatever may be the technical arguments in favour of both, use of the more stringent safeguards, as preferred by the planning authority, must have the merit of being more secure against any allegation of failure to protect human rights to home and family life and quiet enjoyment of property. In addition to the uncertainties about lower windspeeds in conjunction with quiet sea conditions, there must be real doubt whether with 8m/s immission levels of 40dB(A) or more at affected properties night-time and quiet waking hours background levels would be consistently enough at less than 5dB(A) below those, to meet the 5dB(A) exceedence criterion recommended by the WHO (all references being to dB L_{A90, 10min}).

5.18 Whilst I do not find matters of noise impact on residential amenity so clear-cut as the significance of visual impacts, there are significant enough unfavourable or unresolved matters to reinforce the conclusions on visual impacts. It does not seem to me that in an issue as fundamental as noise impacts on residential amenity it would be responsible, or fair to the affected households, to leave unresolved questions, and future observance of essential conditions, to further investigation after granting planning permission."

The Reporter's Assessment under Section 25
[35] The Reporter's assessment under Section 25, taking into account the foregoing conclusions, included the following (at page 25):-

"5.25 From the evidence and site inspections I consider that it would be unjustifiably complacent or optimistic not to find that there would be significant detriment to individual and community residential amenity from visual impacts and, albeit with less certainty, noise impacts from the proposed windfarm in normal operation, observing normal planning conditions and requirements of other regulatory regimes. In the context of the Highlands and for the purposes of this policy I do not take the word 'community'' as requiring a tightly built-up area, but as extending to loose semi-rural clusters such as along the A836 and the Achreamie road near the appeal site. There is accordingly failure under criterion [7] of policy G2. Insofar as the siting of the proposed turbines would be too close to the most affected houses to pass criterion [7], it must also be deemed not to be sensitive in terms of criterion [10], although there is no criticism of the proposed design of turbines or their layout."

The Reporter's Formal Decision
[36] The formal decision of the Reporter (at page 27) was as follows:-

"6.1 In exercise of the powers delegated to me I therefore dismiss this appeal and refuse to grant planning permission for the development proposed in the application 02/00166/FULCA dated 19 April 2004."

[37] Having set out the decision letter in some detail, for ease of reference, I now turn to the Appellant's position.

The Appellant's position - in General
[38] The Grounds of Appeal for the Appellant were lodged on 12 April 2005.

[39] Mr Campbell's basic submission was that the decision of the Reporter was not within the powers of the 1997 Act and was ultra vires.

[40] Mr Campbell referred to Sections 239(1)(a)(i) and 239(5)(b) of the 1997 Act which are set out above. Other possible grounds of challenge did not arise.

[41] In support of his submission, Mr Campbell, reminded me of Wordie Property Company Ltd v Secretary of State for Scotland 1984 SLT 345 and in particular the well known passage in the judgment of Lord President Emslie at pages 347-348.

[42] In the present case the essential reasons for refusal were set out in paragraph 5.25 of the Reporter's decision.

[43] One of the reasons for refusal, certainly, was visual impact.

[44] A second reason, which was less certain, was noise impact. Reference was made to paragraph 5.18.

[45] In Mr Campbell's submission, the principal or main reason for refusal related to visual impact with noise being supportive but not decisive.

[46] The appellant challenged both those aspects of the decision - (1) landscape and visual impact and (2) noise impact - as set out in the Grounds of Appeal.

[47] I shall deal with each aspect separately.

Landscape and Visual Impacts

The Appellant's Position

The Grounds of Appeal - Landscape and Visual Impacts

[48] In relation to landscape and visual impacts, the Appellant founds upon paragraphs 5.9 and 5.10 of the Decision Letter where the Reporter considers the matter of visual impacts on residents living near to the application site.

[49] In paragraph 2 of the Grounds of Appeal the Appellant quotes paragraph 5.9 of the Decision Letter and then states:-

"The Reporter founds on the calculations and comments in paragraph 5.10, where he concludes that the most affected houses would be "involuntarily dominated by the windfarm to an extent that for the generality of occupants would impinge markedly on residential amenity". These calculations were not provided by any party at the public local inquiry, nor were they canvassed in evidence or during submissions. The Reporter has made these calculations himself, after the event."

[50] The Appellant then contends, in paragraph 3 of the Grounds of Appeal, that:-

"In making and founding upon these calculations, the Reporter has misdirected himself. Taking the Reporter's "representative" distance of a point 700m from the turbines, and a turbine blade at the top of its passage at 93m above the ground, the angle between a horizontal line from that point to the turbine, and a line between that point and the turbine blade tip, would be (Tan x = 93/700), thus x = 7.6 degrees. To achieve a 12 degree angle at 700m, the turbine would need to be some 148m to its blade tip. The Reporter failed to give the Appellant an opportunity to comment upon these mistaken calculations before he issued his decision."

[51] Paragraph 4 of the Grounds of Appeal was not insisted upon by Mr Campbell.

[52] In essence, as outlined in Paragraph 5 of the Grounds of Appeal, the Appellant's submissions were to the effect that the Reporter has erred in law et separatim acted unreasonably and has taken into account an irrelevant consideration.

[53] There was no separate point taken in relation to natural justice.

The Appellant's Productions

[54] It might be helpful to note at this stage that the Appellant lodged various productions in support of the appeal, namely:-

6/1 Copy of Highland Council Refusal of Planning Permission dated 1 October 2003

6/2 Precognition of Dr Andrew Bullmore dated November 2004

6/3 WHO Guidelines - Executive Summary

6/4 Planning Advice Note PAN 45 (as revised 2002)

6/5 Paragraph 52 of Scottish Planning Policy SPP1

6/6 Planning Advice Note PAN 56

6/7 British Standard 8223

6/8 ETSU Report - ETSU-R-97

6/9 Extract from Dounreay Windfarm Environmental Statement prepared for Appellant dated April 2002 (Chapters 6 and 9)

6/10 Extract from WHO Guidelines - pp 55-56 and pp 63-65

6/11 3 Diagrams prepared by the Appellant demonstrating the Reporter's calculation error in relation to visual impact

6/12 NPPG6: Renewable Energy Developments (November 2000)

6/13 Circular 10/1999: Planning and Noise

6/14 Extracts from Report to the Secretary of State for Trade and Industry

by C A Richardson, Inspector, dated 13 May 2005 on the application by NPower Renewables Ltd for the Construction and Operation of an Onshore 78MW windfarm at Little Cheyne Court, Walland Marsh, Kent - paras 183-193, 319, 467, 468 and 477

6/15 Copy letter from Jim Campbell, Head of Energy Resources

Development Unit, DTI to Simon Wells, Company Secretary, NPower Renewables Ltd 18 October 2005

6/16 Extract from Office of the Deputy Prime Minister, Planning Policy Statement 22: Renewable Energy - para 22

6/17 Extract from the Planning Policy Wales, Technical Advice Note 8: Planning for Renewable Energy - Annex C paras 2.1- 2.40.

The Appellant's Productions 6/9 and 6/11

[55] It might also be helpful, for ease of reference, to mention some features of Productions 6/9 and 6/11.

[56] Production 6/9 is the Environmental Statement (the "ES") prepared by the Appellant. It contains inter alia a number of visualisations from various viewpoints.

[57] Production 6/11 consists of "3 diagrams prepared by the Appellant demonstrating the Reporter's calculation error in relation to visual impact". Figure 1 is a profile of the view 700 m away on flat ground using 93 m turbines. Figure 2 is a profile of the view 700 m away on flat ground and turbine tip at 12 degrees. Figure 3 is a profile of the view 614 m away, on sloping ground (8m and over 614m) and 93m turbines.

[58] As appears from Figure 1, the vertical angle of view taken from ground level to the highest point of a rotating turbine blade (93 metres above ground level) is in fact 7.6 degrees at 700 metre distance. The Reporter, in the second-last sentence of paragraph 5.9, incorrectly calculates this angle as nearly 12 degrees.

[59] As appears from Figure 2, if the vertical angle of view taken from ground level to the highest point of a rotating blade was 12 degrees, a corresponding turbine would have to be 148.3 metres high (to blade tip) at 700 metre distance.

The Appellant's Submissions in relation to Visual Impacts

[60] In relation to Visual Impacts, Mr Campbell referred in particular to paragraphs 5.3 to 5.10 of the Decision letter which I have set out above.

[61] Essentially the appeal was based on the error in the angle which had been calculated by the reporter. The angle referred to (in the second-last sentence of paragraph 5.9) was wrong. The correct angle was considerably lower. It was a significant error, Mr Campbell submitted, going to the nub of the decision relating to visual impact and dominance.

[62] There was, however, no error in the figure of 13.3 % or the other matters which are mentioned in the following sentence (the last sentence) of paragraph 5.9.

[63] There were various photographs placed before the Reporter. Amon Sul is viewpoint 10 in the Environmental Statement (the "ES") which is Production 6/9.

[64] It was a matter of agreement that there was an error and that the Reporter has exaggerated the angle of view when he states it to be of nearly 12 degrees to the slightly sloping ground.

[65] The nature and extent of the exaggeration have been illustrated in the diagrams which now form part of Production 6/11 of Process. The correct angle is not 12 degrees. It is 7.6 degrees. Unfortunately the calculations were prepared by the Reporter after the inquiry - and there was no opportunity to challenge them.

[66] The main reason for refusal was that the turbines would dominate the view from the most affected house - to an extent that would impact markedly.

[67] The application of 12 degree in the Reporters' imagination or in his mind's eye would give a different impression. It operates to artificially increase the perceived dominance of the windfarm.

[68] Mr Campbell submitted that the Appellant should be considered entitled to a fresh judgment a fresh decision.

[69] It is well accepted that that is the most the Appellant is entitled to. All the court can do is to set the decision aside and the matter would be remitted back.

[70] Mr Campbell accepted that there is other material mentioned in the decision letter and before the reporter which could justify the same conclusion but as matters stand it is an unfair or unsatisfactory end product. It is an unsatisfactory decision on what on any view is an important aspect of the appeal. It is critically important that the losing party considers that the process itself is fair and just and satisfactory. It is doubtful if that can be said at present.

[71] Mr Campbell did not suggest that a different conclusion would necessarily follow but it would be clear that there had been no contribution to it from the erroneous calculation as to the angle of view.

[72] All the court can do is assess the matter by the reasoning given by the reporter and in particular in paragraphs 5.9 and 5.10.

[73] As matters stand, when the Reporter was considering the acceptability of the development it is apparent that he considered it relevant and helpful to calculate the relevant angle of view. He devotes a passage in his reasoning to tell us the result. It is reasonable to proceed on the basis that he regarded it as a relevant factor.

[74] So whatever else he says about percentage gradient, scaling up and scaling down and the impression created by the visualisations he also says he understood the angle of view to be 12 degrees. This played at least a part in his overall conclusion as to unacceptable dominance.

[75] It may be said by others that the Reporter got other items right and that this is simply a miscalculation which did not influence the reporter's judgment. Mr Campbell invited me not to accept that.

[76] This is a case where the turbines do not actually exist. You cannot go and see and judge. You have to try to imagine or visualise. Essentially it is a matter of judgement. It is not like measuring distance wrongly but you have actually been to see it. That is completely different.

[77] One cannot conclude that the Reporter was envisaging the correct angle.

[78] He had the advantage of visualisation and it may be said that is an important step and that the angle is only a help. But that is an erroneous view.

[79] The error taints or pollutes the whole process of his reasoning. It is not an irrelevant error of no materiality to the decision submitted Mr Campbell.

[80] No issue was taken by the Respondents in relation to any of the authorities mentioned by Mr Campbell.

[81] Mr Campbell referred me to Secretary of State for Employment v ASLEV [1972] 2 QB 455 at page 457 and in particular Lord Denning MR at pages 492 to 493. We are not in the realms of the court interfering in the merits of the decision. If there is a plain misdirection in fact it is open to the court to interfere.

[82] Mr Campbell also referred me to R (Alconbury Developments Ltd) v The Secretary of State for the Environment [2003] 2 AC 295 in particular at paragraph 53. It has to be an error that is plain or patent on the face of the decision, but where the error is a plain one or an obvious one then the courts are willing to interfere. The reason for the limitation is pragmatic policy.

[83] Mr Campbell also referred to Elmbridge Borough Council v Secretary of State for the Environment 1980 39 P. & C.R. at 543 and in particular at 547 to 548.

[84] Mr Campbell submitted that in the present case the error was not "an obvious silly mistake".

[85] In Elmbridge parties knew that the decision taker knew the distance. It may be said by others that the same applies here but that would not be well founded. There are distinguishing features.

[86] Elmbridge was a case where the inspector had visited the site and had seen the actual distance between the existing property and the proposed new plant. It is entirely probable that the use of the wrong scale created no doubt in his mind when reaching his conclusion. That was not the position in the present case submitted Mr Campbell.

[87] Detailed reference was made to Simplex GE (Holdings) v Secretary of State for Environment 1989 57 P. & C.R. 304 at pages 319 to 329.

[88] The reporter's decision would not be free from any suspicion of adverse influence.

[89] However inconvenient it might be the decision should be quashed even if there is a real chance that the result might be the same (Simplex at page 325).

[90] In the present case the angle of view was "a consideration". It was not "an insignificant matter". It was not "insubstantial". There is no burden on the Appellant.

[91] In the present case visual impact was the main issue. In paragraph 5.18 the Reporter states that noise matters "reinforce the conclusions on visual impacts". In paragraph 5.25 he refers to "visual impacts and, albeit with less certainty, noise impacts". Noise was not a stand alone reason for refusal submitted Mr Campbell.

[92] Under reference to Simplex (particularly at pages 326 to 328) Mr Campbell invited me to look at the matter realistically and with justice.

[93] What it amounts to, suggested Mr Campbell, is that an error on a substantial issue renders the decision invalid unless it is quite clear that because of some other reason or reasons, unaffected by the error, the decision-maker would have been bound to come to precisely the same conclusion.

[94] If there is a whole set of reasons and one of them is bad in law it will not justify quashing the decision if the court is satisfied that the other reasons would inevitably lead to the same conclusion. That, said Mr Campbell, would just become a waste of time.

[95] Reference was also made to Campbell v City of Edinburgh 1999 SLT 1009 and in particular at pages 1009 D-F, H-I and 1021 B-K. In that case Lord Osborne did not have the benefit of the reference to Simplex. However, Mr Campbell suggested that Lord Osborne adopted more or less the same general approach. The court has a residual discretion. However, insofar as Lord Osborne applied a lower test than in Simplex, the approach of the Court of Appeal was to be preferred.

[96] In the present case there was no dispute that in principle Mr Campbell's suggested approach, based on Simplex was the correct one.

[97] The central dispute was how that approach fell to be applied to the facts of the present case.

[98] Mr Campbell, for the Appellant, submitted that in relation to visual impacts the overall result was as follows:-

1. That the error in the second-last sentence of paragraph 5.9 (as to the angle of view being nearly 12 degrees) did go to a substantial matter, indeed a critical matter, upon which the decision turned; and

2. That it ought not to be concluded that without the error the result would necessarily have been the same (because of some reason other than visual impact).

[99] The only other reason for refusal was that of noise but that was a secondary, albeit supportive, reason of a less clear cut nature.

[100] In any event, consideration by the Reporter on the question of noise was flawed.

[101] In short, the Appellant's primary submission was that the error in the second-last sentence of paragraph 5.9 would justify quashing the decision.

The Position of the Scottish Ministers

[102] The Answers for the Scottish Ministers are No. 8 of Process.

[103] In summary, the Scottish Ministers dispute the Appellant's Grounds of Appeal in relation to both landscape and visual impacts and noise impacts.

Submissions for the Scottish Ministers - General

[104] Ms Crawford invited me to refuse the appeal and to uphold the Reporter's decision dated 3 March 2005.

[105] In her general remarks, Ms Crawford emphasised the importance of putting the Appellant's submissions in the context of Section 25 of the Town and Country Planning (Scotland) Act 1997.

[106] Section 25 provides that:-

"Where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise."

[107] The relevant policies were set out in paragraph 2.6 of the Reporter's decision letter.

[108] The appeal related to "impact" - visual impact and noise impact - rather than actual levels and the reporter correctly identified the issues of "significant detriment" and "significant harm".

[109] By way of general background, Ms Crawford also reminded me of Wordie Property particularly at pages 347 - 348. She also referred me to Lord Grieve at page 364.

[110] Ms Crawford suggested that the court should not subject the reporter's decision to fine textual analysis. The decision letter was not to be construed as a statute or a conveyancing document. The decision letter requires to be read as a whole.

[111] The Reporter had identified the correct policies in paragraphs 2.9 and 2.10.

[112] In relation to the Grounds of Appeal, Ms Crawford's position was as follows.

Answers for First Respondents - Landscape and Visual Impacts

[113] In relation to landscape and visual impacts The Scottish Ministers contend that paragraphs 5.9 and 5.10 of the decision letter should be referred to for their whole terms. The calculations and comments were made on the basis of undisputed heights and distances. The calculations and comments followed upon evidence presented at the Inquiry. Reference was also made to paragraphs 5.3 and 5.4.

[114] The Scottish Ministers also contend that any error in the Reporter's calculation of the angle was not material to his conclusion that the houses in the immediate vicinity of the proposed windfarm would be adversely affected to an unacceptable extent. Reference was made to paragraph 5.10 and to the assessment of visual impacts in the Environmental Statement.

[115] The Scottish Ministers also referred to paragraphs 5.3, 5.4, 5.25, 5.31 and 5.32 of the decision letter. The Reporter concluded in paragraph 5.25 that there would be a "significant detriment to individual and community residential amenity from visual impacts". The proposal did not comply with Structure Policies G2, criteria 7 and 10 and E2, and with Local Plan Policies PP3. In addition, the proposal did not satisfy paragraph 22 of NPPG6.

Submissions for the Scottish Minister - Landscape and Visual Impacts

[116] In relation to landscape and visual impacts, Ms Crawford submitted that the central question which the reporter required to address was whether the proposed development accorded with the development plan.

[117] In doing so he required to look at the evidence and the submissions before him.

[118] The findings which he made were findings which he was properly entitled to make. For example in paragraphs 5.9 and 5.10 and 5.25.

[119] There is only one sentence which contains an admitted error - and that is in the second-last sentence of paragraph 5.9.

[120] In relation to the calculation of the angle of view it was accepted that there was an error. The correct angle is 7.6 degrees.

[121] It was also accepted that if the error was on a substantial issue or was material or was significant then that would render the decision of the Reporter invalid.

[122] In that event the Reporter would have acted ultra vires in the Wordie sense. He would have taken into account an irrelevant factor or, looking at the matter another way, he would not have taken into account a relevant factor.

[123] Ms Crawford took no issue with the series of authorities put before the court by the Appellant.

[124] She did however take issue with the Appellant, and disagreed strongly, in relation to the effect and the nature of the admitted error.

[125] Ms Crawford submitted that the error as to the angle of view was, for present purposes, neither material, nor substantial nor significant.

[126] It was not material to the issue of assessing the extent of visual impact which was the issue which the Reporter required to resolve. The error was "not productive of harm". It was an "innocuous defect". The calculation made by the Reporter was not in any way the foundation of, nor material to, the Reporter's finding that the turbines were in almost full view from the properties (paragraph 5.9 line 7) or the findings set out in paragraph 5.10 (particularly lines 8-10).

[127] The Reporter also had the benefit of site visits which he recorded in his Decision Letter (for example at paragraphs 5.3-5.4).

[128] He also had visualisations which he found most useful.

[129] His error did not taint his findings or conclusions. That was clear, submitted Ms Crawford, from paragraphs 5.9 and 5.10 of the decision letter.

[130] The turbines would be in almost full view from the properties. The Reporter was able to form a judgment about the developments. The slight drop in the ground would have made little difference.

[131] The Reporter was attempting to illustrate the position in the last two sentences of paragraph 5.9. The second-last sentence contains an error but the last sentence is correct. The Reporter does not rely on the error in any shape or form and the calculation is based on correct "raw data".

[132] Mr Campbell for the Appellant accepted that the last sentence of paragraph 5.9 was accurate.

[133] It was important to note that the Reporter's error in calculation was based on correct raw data and that the last sentence of paragraph 5.9 was correct.

[134] The Reporter has had regard to the visualisations.

[135] It was difficult to see, submitted Ms Crawford, how the Reporter's findings in paragraph 5.10 are in any way affected by the calculation of the angle of view.

[136] It was even more difficult to see that error carried forward to paragraph 5.25 which was the critical question.

[137] The calculation of the angle of view was not in any way material to the conclusion reached in paragraph 5.25.

[137] To suggest otherwise would be to subject the decision letter to a fine textual analysis. To construe it line by line, as one might do with a statute or a conveyancing document, would be inappropriate.

[138] While it is accepted that there is an error in relation to the calculated angle of view, that error is not material and does not render the decision letter invalid.

[139] In summary, in relation to visual impact, Ms Crawford submitted that the Appellant's arguments should be rejected.

The Position of the Highland Council

[140] The Answers for the Highland Council are No. 10 of Process.

[141] The Council challenged the Appellant's Grounds of Appeal in relation to both headings - along similar lines to the Scottish Ministers.

Answers for the Highland Council - Landscape and Visual Impacts

[142] In relation to landscape and visual impacts, the Highland Council refer to the decision letter for its full terms. They contend that the Reporter's "calculation" is illustrative only, and not determinative of the visibility of the proposed development, nor of his conclusions upon the impact of that visibility.

[143] In any event, the Council maintain, the Reporter does not rely upon his calculation as determinative of his conclusion that the landscape impact and visual impact upon the nearest neighbours of the proposed development would be adverse.

[144] The Council also refer to paragraph 5.10.

[145] The Council suggests that that wording is inconsistent with any conclusion other than that the visual impact of the proposed development would be unacceptable as regards its nearest neighbours.

[146] The Council maintains that the Reporter has conducted a proper balancing exercise, taking into account the public interest, the weight of national and local policy, the effect on individual interests, and the submissions of parties, and has arrived at a proper and rational conclusion, properly founded upon relevant legal and planning considerations.

The Submissions for The Highland Council - the Second Respondents

[147] Mr John D Campbell QC, for the Highland Council, also took no issue with the statement of the law given by Mr Colin Campbell QC (for the Appellant).

[148] The textual approach adopted by the Appellant was not the proper one. Matters required to be seen in the context of section 25.

[148] The Reporter's approach was the correct one.

[150] The Reporter draws matters together in paragraphs 5.24 onwards under the heading of "Assessment under Section 25, taking into account foregoing conclusions".

[151] Mr Campbell also referred me to Production 6/12 National Planning Policy Guideline (NPPG) 6 which is dated November 2000 and in particular to paragraph 22 which is set out in paragraph 2.9 of the Reporter's decision.

[152] Mr Campbell adopted the submissions made by Ms Crawford.

[153] I now turn to the parties' submissions in relation to noise impacts.

Noise Impacts
Productions on Noise Impact.
[154] At the outset, I should record that counsel for the parties referred me to the Productions relating to noise impacts in some detail.

[155] The main documents referred to included:-

1. Planning Advice Note PAN 45 (Revised January 2002) (Production 6/4) paragraphs 29 and 65, Figure 6, paragraphs 66, 67, 68, and Figure 7;

2. Planning Advice Notice PAN56 (Production No 6/6) at page 10 of 16;

3. ETSU-R-97 (Production No 6/8) and in particular the Introduction, paragraphs 1, 5, 9, 11, 18 to 22, 26, Figure 4 (on page 49) and page 54 (second paragraph); and

4. The WHO Guidelines for Community Noise (Production No 6/10) Table 4.1.

[156] Against that background, I turn to the Appellant's position.

The Appellant's Position

The Grounds of Appeal - Noise Impacts

[157] The Appellant's position is very helpfully outlined in paragraphs 6 to 8 of the Grounds of Appeal as follows:-

"6. The Reporter dealt with this issue at paragraphs 5.11 to 5.18 inclusive. In its submissions on Noise impacts (see e.g. paragraph 4.1.7 of the Reporter's letter), the Appellant relied upon the assessment methodology in report ETSU-R-97 "The Assessment and Rating of Noise from Windfarms" by the Energy Technology Support Unit, which was before the Reporter. This report is cited in Planning Advice Note (PAN) 45: Renewable Energy Technologies (revised 2002) at paragraph 68 as presenting "a series of recommendations that can be regarded as relevant guidance on good practice". The Appellant's Environmental Statement dealt with this issue in detail in Chapter 9.

7. At paragraph 5.18 of his letter, the Reporter concluded:-

"Whilst I do not find matters of noise impact on residential amenity so clear-cut as the significance of visual impacts, there are significant enough unfavourable or unresolved matters to reinforce the conclusions on visual impacts."

In his assessment of noise impacts, however, the Reporter erred in the following ways (as set out by the Appellant in paragraph 8 of the Grounds of Appeal) namely:-

(i) The guidance in Figure 7 in PAN 45 is taken from the ETSU report. The eighth bullet point in Figure 7 states:

'Noise from the wind farm should he limited to 5dB(A) above background for both day and night time, remembering that the background level of each period may he different'

In paragraph 5.15 of his letter, where he considers that the ETSU report is inadequate for the present case, the Reporter suggests that the Appellant's 'noise immission curves which I have accepted as reliable suggest that night-time background noise levels at around 6m/s or 7m/s, with very little contribution from the sea, would have to be remarkably low for there to be a difference of above 5dB(A); but it is not clear that such conditions could not occur too often to be ignored'.

However, precisely because of this inherent variability in background noise levels, the assessment methodology of the ETSU report requires that a best-fit curve be fitted through the average of the measured background noise data at each wind speed, and that this averaged background noise curve should be used for assessment purposes. Since this curve is based upon the average levels, it is plain that for approximately half of the time the background noise levels will be higher than the derived average level, while for the remaining half of the time the background noise levels will be lower. Thus the noise limits set in accordance with the ETSU report allow the windfarm noise level to be up to 5dB(A) above the average measured background noise curve. The Reporter's suggestion that a calm sea might result in a difference between background noise levels and windfarm noise levels of more than 5dB(A), is merely one factor that the ETSU methodology already accounts for.

(ii) Moreover, the ETSU report is based upon noise limits in quiet areas using absolute levels rather than levels relative to background noise. A principal reason for this is that windfarms are often sited in quiet rural areas. To set limits relative to quiet rural background noise levels would overly restrict the potential for on-shore wind energy development (see the fifth bullet point in Figure 7 of PAN 45).

(iii) The twelfth bullet point in Figure 7 in PAN 45 provides that '[i]n low noise environments the day-time level of the L _{A90, 10min} of the wind farm noise should be limited to an absolute level within the range of 35-40dB(A).' Thus the ETSU report would prima facie justify a windfarm noise level of 40dB(A) where the background noise level was only say 25dB(A). There is therefore no justification for the Reporter's apparent reliance on a relative margin of only 5dB(A). This 'margin' was not canvassed in evidence at the public local inquiry.

(iv) The Reporter has erred in preferring to use the World Health Organisation ("WHO") Guidelines for Community Noise rather than the ETSU report. It is the latter document which PAN 45 (which post-dates the latest version of the WHO Guidelines) recommends as suitable. In any event, the Report has misconstrued the WHO Guidelines for Community Noise. In particular, the WHO Guidelines rely on absolute noise limits based on the onset of identifiable effects, and not on a recommendation of 5dB(A) above background noise levels (cp. The last sentence of paragraph 5.17 of the Reporter's letter). With regard to the setting of night-time absolute noise limits, the ETSU report at paragraph 23 of the Executive Summary states: '[t]he Noise Working Group recommends that the fixed limit for night-time is 43dB(A)_L90. This limit is derived from the 35dB(A) sleep disturbance criteria referred to in Planning Policy Guidance Note 24 (PPG24)' [which is the same night-time noise limit referred to in paragraph 5 of Annex 2 of PAN 56, and bullet point 10 in Figure 7 of PAN 45]. Despite any subsequent changes in updated WHO Guidelines in respect of noise levels inside bedrooms for the onset of sleep effects (the effect of which on external noise levels is in any event limited, as discussed in Dr A J Bullmore's precognition at paragraphs 5.38 to 5.42), the recommended night-time noise limit in PAN 45, Planning Policy Guidance 24:Planning and noise and PAN 56 remains unchanged, as does that of BS8233 "Sound insulation and noise reduction for buildings", which is also cited in paragraph 37 of PAN 56 as providing '[g]eneral guidance on acceptable noise levels within buildings...'. The basis for the ETSU report's recommended night-time noise limit therefore remains unchanged. As is made clear in the ETSU report, the changes being proposed in WHO Guidelines in respect of internal noise levels were well known to the authors of the ETSU report."

[158] Paragraph 9 of the Appellant's Ground of Appeal, Mr Campbell indicated, was not being insisted upon.

[159] For the reasons outlined in the Grounds of Appeal, the Appellant contended that the Reporter's decision dated 3^rd March 2005 should be quashed.

The Appellant's Submission on Noise Impacts
[160] Mr Campbell developed the Appellant's Grounds of Appeal as follows.

[161] Noise impact was dealt with by the Reporter in his decision letter at paragraphs 5.11 to 5.18 which I have set out above.

[162] The Reporter accepted (in paragraph 5.11) that the likely levels would be as stated in paragraph 4.1.8.

[163] The critical issue was not how noisy the windfarm was going to be but the acceptability or otherwise of the noise on the nearest dwelling houses.

[164] The essential findings were in paragraphs 5.14 and 5.15.

[165] At the end of paragraph 5.15, the Reporter states

"The appellants' noise immission curves which I have accepted as reliable suggest that night-time background noise levels at around 6m/s or 7m/s, with very little contribution from the sea, would have to be remarkably low for there to be a difference of above 5dB(A); but it is not clear that such conditions could not occur too often to be ignored."

[166] The Reporter had a difference of 5dB(A) in mind.

[167] At the beginning of paragraph 5.17 the Reporter states that whilst the use of ETSU-R-97 is commended in PAN 45 "it preceded advice from the World Health Organisation (WHO) to use more stringent lower limits in order to avoid disturbance and ensure restful sleep".

[168] At the end of paragraph 5.17 the Reporter refers to meeting "the 5dB(A) exceedence criterion recommended by the WHO".

[169] Mr Campbell submitted that something more than the standard model seems to be used by the Reporter.

[170] The impression is that the reporter is concerned that the "standard assessment model" and guidelines may not be appropriate for a site where there may sometimes be particularly quiet periods in terms of background noise with the result that the noise from the turbines might be significantly intrusive when there is a low ambient or background level.

[171] Mr Campbell developed his argument under reference to passages from the productions.

[172] In particular, Mr Campbell referred me to Planning Advice Note PAN No 45 (Production 6/4) paragraphs 29, 65, 66, 67 and 68. Figure 7 (on pages 22 to 23 of Production 6/4) attempts to summarise the position and is headed "Recommended Good Practice on Controlling Noise from Wind Turbines". Paragraph 68 (of Production 6/4) refers to Production 6/8.

[173] The executive summary of ETSU-R-97 (Production 6/8) sets out the main points which Mr Campbell wished to refer to including paragraphs 1, 5, 9, 11, 18 to 22, and 26.

[174] A definition of "LA90 T" is given in Production 6/6 (on page 10 of 16).

[175] Mr Campbell pointed out that, in general terms, the development of windfarms is a government objective. There is a raft of materials encouraging development. There is a balance to be struck bearing in mind the interests of the community and the people affected by the development.

[176] Significantly, in environments with low noise levels the 5dB(A) level is put to one side in favour of an absolute.

[177] At a situation of low noise the guidance recognises that the noise from the turbine could be significantly in excess of 5dB(A) above.

[178] In this case the Reporter says that on quiet occasions he anticipates that the windfarms would be significantly intrusive. However, the guidance allows for more than 5dB(A) above background noise in that situation.

[178] The Reporter appeared to be saying that he has used the 5dB(A) exceedence criteria for all situations. That, submitted Mr Campbell, was an error.

[180] In outline, Mr Campbell submitted that the Reporter has got it into his mind that the there may be times when the background level is atypically low and that the standard model does not cope. But that, submitted Mr Campbell was wrong. The standard model does take such factors into account.

[181] The measurements are based on average levels. For much of the time the actual background level will be either above or below.

[182] The Reporter's errors might be illustrated this way - under reference to the graphs which are shown in paragraph 26 on page ix of ETSU-R-97 (Production 6/8).

[183] Firstly, the lines on the graphs do not continue parallel to one another (like "rail tracks") throughout their length all the way down to the lowest background levels. There is a plateau.

[184] Secondly, the lines shown are based on average (not highest or lowest) levels of background noise.

[185] In paragraph 5.15 of his decision letter the Reporter is talking about 5dB(A) and he seems to take the view that there will be occasions when the noise will be 5dB(A) above the actual background level.

[186] He might have been entitled to say I don't like the guidance and therefore I will not apply it but instead he suggests that the guidance does not cope.

[187] The methodology illustrated in figure 4 on page 49 of Production 6/8 involves (1) an averaging process and (2) a fixed level at the left hand side of the graph.

[188] The Reporter seems to suggest that there are specialities of this site that take it outwith the guidance but he is simply wrong about that. He has misdirected himself on this important issue.

[189] The fact that the Reporter has doubts and misgivings about the Appellant's data (for example in paragraph 5.16) is nothing to the point if he has also misunderstood the guidance.

[190] There is more than a hint that if the Reporter was just talking about noise he would want more information. He has concerns, reservations and misgivings but it is not immediately apparent that noise would have led to outright refusal of the application.

[191] However, if the court was to decide in favour of the Appellant in relation to visual impact then the question of noise would be academic.

[192] In the last part of paragraph 5.17 the Reporter has it fixed in his mind that the guidance is 5dB(A) above the actual background. That is the essence of his main mistake.

[193] In Mr Campbell's submission, there were, however, two further relatively straightforward errors in paragraph 5.17.

[194] The first error is to be found at the end of paragraph 5.17 where the Reporter refers to the 5dB(A) exceedence criteria. Production 6/10 contains an extract from the WHO Guidelines. There is no 5dB(A) criterion in them. They proceed on the basis of absolute levels. Page 65 of Production 6/10 contains the WHO guideline values and they are all based on absolute levels. The planning authority did not object on the ground of noise but suggested a planning condition. That is how those levels came into the picture. At the end of paragraph 5.17 the Reporter says that a 5dB(A) exceedence criterion was recommended by the WHO. Mr Campbell submitted, in essence, that the WHO does not make any such recommendation.

[195] The second error is at the beginning of paragraph 5.17 where the Reporter states that "At the same time, whilst the use of ETSU-R-97 is commended in PAN 45, it preceded advice from the World Health Organisation (WHO) to use more stringent lower limits to avoid disturbance and ensure restful sleep". The Reporter seems to be saying that he can put aside PAN 45 in favour of the World Health Organisation because it post-dated it and therefore the authors of PAN 45 did not have the opportunity to take it into account. But the relevant revision of PAN 45 post-dated the WHO and so there can be no such assumption. Indeed exactly the opposite.

[196] PAN 45 was dated 1996. ETSU was dated 1997. The WHO was dated April 1999. The Revision of PAN 45 concerned in this case was dated January 2002 and it referred back to ETSU.

[197] The Reporter has tried to justify putting aside PAN 45 in favour of the WHO and has therefore excluded ETSU by reference to a mistaken chronology overlooking the revision in January 2002.

[198] In the result, the reporter is using lower limits based on a mistaken chronology.

[199] Mr Campbell submitted that the Reporter's reasoning in respect of the noise issues is seriously flawed in a number or respects which individually and/or cumulatively amount to misdirection and errors in law which would empower the court to quash the decision.

[200] Mr Campbell also addressed the question of what the Court should do if the Reporter's reasoning on landscape and visual impacts was fine but his reasoning on noise impacts was flawed. In that situation, Mr Campbell submitted that the court would not quash the decision if it was satisfied that visual impact in itself was bound to lead the Reporter to refuse the appeal. Everything "would collapse back" to landscape and visual impacts.

[201] Finally, Mr Campbell made the point that the matter would not be necessary to go back to the same reporter. It probably would but it was not certain. There is at least the possibility of another reporter becoming involved.

[202] In the whole circumstances, Mr Campbell invited me to uphold the appeal, to quash the decision and to remit the matter back to the Scottish Ministers.

[203] I now turn to consider the Respondents' position on noise impacts.

The Position of the Scottish Ministers on Noise Impacts

Answers for First Respondents - Noise Impacts

[204] On behalf of the Scottish Ministers reference was made to paragraphs 4.17 and 5.11 to 5.18 inclusive of the decision letter, the report ETSU-R-97, PAN 45:Renewable Energy Technologies (revised 2002) and the Appellant's Environmental Statement.

[205] Reference was also made to PAN 45, PAN 56, the ETSU report, the WHO Guidelines for Community Noise, Dr. A. J. Bullmore's precognition and BS8233.

[206] In summary, the Scottish Ministers contended that the Reporter found (in paragraph 5.15 for the reasons stated therein) that the standard assessment models for noise impact were in respect of inland sites and that they were, accordingly, not sufficient for the purposes of assessing noise at coastal sites.

[208] The Scottish Ministers submitted that the Reporter was entitled to make those findings. The planning authority submitted that the more stringent WHO standards should be used. Reference was made to paragraph 4.2.6. Having regard to all the circumstances and in the exercise of planning judgement, the Reporter determined that the WHO standards should be used. The Reporter was entitled to do so - submitted the Scottish Ministers.

[209] In short, the Scottish Ministers contended that the Reporter was entitled to conclude at paragraph 5.18 that there were significant unfavourable or unresolved matters in respect of noise impact to reinforce the conclusions on visual impact.

Submissions for the Scottish Minister - Noise Impacts

[210] In relation to noise impact Ms Crawford made observations on ETSU (Production 6/8) and PAN 45 (Production 6/4). She then looked at the Appellant's use of ETSU and finally she sought to put those comments into the context of the decision letter.

[211] In relation to ETSU, the report is not to be used in a dogmatic fashion. It is a series of recommendations. It was not a document to be followed in a slavish fashion. There is a recognition that ETSU is not definitive. There may be circumstances where account can be taken of its guidance. In other circumstances, where it is not relevant or open to challenge, then the weight to be attached to it may be limited or very limited.

[212] In the executive summary of ETSU (paragraph 1 page iii) there is a recognition that the development of windfarms is in the public interest. It relates not to the question of development or planning but to the terms that are suitable for noise related planning conditions.

[213] Generally ETSU sets limits relative to background noise and that is reflected in the fourth bullet point of PAN 45.

[214] In accordance with ETSU it is not necessary to use a "margin above background" approach. That reflects what is seen in the diagrams in ETSU (at page ix). They assume a direct correlation between background noise and wind speed but that may not be the case in every location. The Reporter felt that at this site there was no direct correlation.

[215] By way of background, the Appellant had submitted, before the Reporter, that a margin above background level should be used.

[216] There were also problems with the Appellant's data as can be seen from paragraphs 4.1.9 and 4.1.10 of the decision letter.

[217] The Appellant was not submitting to the Reporter that an absolute approach was appropriate and indeed they were saying that this was not a particularly quiet area.

[218] In relation to the equations which featured in the documentation Ms Crawford referred to three main variables.

[219] Firstly, there were the immission levels. In this case the Reporter accepted the predicted levels provided by the Appellant - at paragraph 4.1.8.

[220] Secondly, there was background noise - as mentioned in paragraph 4.1.9. The Appellant's data was subject to some errors. 40% of the data regarding background noise levels was unreliable or insufficient. In that situation one doesn't get off the ground in carrying out the measurement of noise. Without it you cannot determine whether to use the approach of (a) exceedence criteria or (b) absolute limits. You don't get off the starting blocks unless you have a proper assessment and measurement of background noise. Reference was made to paragraph 9 of the executive summary of ETSU (Production 6/8).

[221] Thirdly, there was the exceedence which in very general terms reflected the difference between the immission levels and the background noise.

[222] In relation to the Reporters' conclusions, paragraph 5.18 of his decision letter draws together paragraphs 5.12 to 5.17. It is important to look at the conclusions as a whole.

[223] As appears from paragraph 5.12 the Reporter went on site visits. He identified that there can be varying conditions. He takes into account windspeed and direction and considers that there might not be a direct correlation as in the graphs.

[224] Paragraph 5.13 records his experiences at Westerdale.

[225] In paragraph 5.14 he found it clear that there would be very great variability in the reception of turbine noise at the nearest houses.

[226] The Reporter recognised that "the usual" approach was not appropriate.

[227] Although the Appellant suggests that the Reporter failed to understand the ETSU methodology involved, Ms Crawford argued that the Reporter did understand the position correctly.

[228] Ms Crawford suggested that the Reporter did understand that ETSU uses averaging and best fit curves. However, the Reporter in the exercise of his planning judgement concluded that because the site was on the coast and was relatively near to houses and there were unknown meteorological conditions that the ETSU methodology was not sufficient to adopt as a starting point.

[229] Ms Crawford suggested that what the Reporter is saying at paragraph 5.15 is that, having regard to the coastal site, the level of background noise is as much a factor of breaking waves as windspeed.

[230] Breaking waves contribute to background noise but are not directly related to offshore windspeed. You may have breaking waves with very low windspeed.

[231] The Reporter has had regard to ETSU but is of the view that he is not going to follow it because of the features of this particular site. That is something the Reporter is perfectly entitled to do.

[232] He has given his reasons in paragraph 5.15 in the context of the previous paragraphs.

[233] The critical issue regarding noise was in relation to the development plan.

[234] The Reporter outlines his misgivings about the figures in paragraph 5.16.

[235] It was accepted by Ms Crawford that paragraph 5.17 of the decision letter could have been better expressed but the factors founded upon by the Appellant were simply "infelicities" which did not result in an error in law such as to vitiate the decision.

[236] There is reference to the WHO guidelines but that, it was suggested was "obiter" and related back to the submissions from the Highland Council in paragraph 4.2.6. It related to the conditions which might be imposed if planning permission were to be granted.

[237] In paragraph 5.17 the Reporter is saying that he agrees with the Council. He is not using the WHO guidelines to assess noise impact or whether there is significant detriment. He is considering planning conditions rather than the assessment of compliance with the development plan.

[238] It was accepted by Ms Crawford that the Reporter did get the chronology wrong (in paragraph 5.17) but it was submitted that the error did not make any material difference.

[239] Paragraph 5.17 was not in any way determinative of the conclusions which the Reporter reached in paragraph 5.25.

[240] In paragraph 5.17 the Reporter was dealing with the question of planning conditions which had been raised by the council, rather than the grant of planning permission.

[241] Paragraph 5.18 links back to the previous paragraphs.

[242] In the result even if paragraph 5.17 does disclose an error then on the question of noise the Reporter has reached a decision which he was properly entitled to do.

[243] The decision should not be quashed.

[244] The Reporter's views expressed in paragraph 5.17 are, properly understood, no more than obiter.

[245] The Reporter does not like the ETSU methodology and he has not applied it in relation to this site (1) because of the nature of the site and (2) because of the unsatisfactory data about background wind noise.

[246] So far as noise is concerned the Reporter has reached a decision he was properly entitled to do having regard to the evidence before him and the submissions made to him.

[247] Ms Crawford submitted than the Appellant's arguments on noise impacts should be rejected and that the Reporter's decision should not be quashed.

The position of the Highland Council - on Noise Impacts

Answers for the Highland Council - Noise Impacts

[248] In relation to noise impacts, the Highland Council also referred to ETSU-R-97, PAN 45, and the Environmental Statement submitted by the appellant. They maintained that ETSU-R-97 was not a guidance note for the measurement of loss of residential amenity from the noise of turbines, but provides only guidance and opinion as to the measurement of noise, and levels of noise, at residential properties when turbines are in operation. Mr David Craig led evidence on noise before the Reporter.

[249] The Council contended, under reference to the Reporter's decision letter (and other documents such as PAN 45, PAN 56, the ETSU report, the WHO guidelines, Dr Bullmore's precognition and the other inquiry documents relating to noise issues) that the Reporter was entitled to reach the conclusion which he did on the totality of the evidence before him. They maintained that the Inquiry gave full consideration, in examination in chief and in cross examination, to all noise evidence submitted in precognitions and in the Inquiry documents.

[250] In summary, the Scottish Minister and the Council both submitted that this appeal should be refused.

Discussion and Decision

Authorities

[251] There was no dispute between the parties in relation to the relevant authorities.

[252] In addition to cases such as Wordie Property Company v Secretary of State for Scotland 1984 SLT 345 and Campbell v City of Edinburgh 1999 SLT 1009 I was referred in particular to:-

1. The decision of the Court of Appeal in Simplex G. E. (Holdings) and Another v Secretary of State for the Environment and The City and District of St Albans District Council (1989) 57 P. & C.R. 306 (particularly at pages 306-307, Purchas LJ at 319-327 and Staughton LJ at 329); and

2. The decision of Bristow J. in Elmbridge Borough Council v Secretary of State for the Environment and Another (1980) 39 P. & C.R. 543 (particularly at pages 543 and Bristow J at 547-548).

[253] In Simplex GE (Holdings) v Secretary of State for the Environment (1989) 57 P & CR 306 the Minister had rejected an inspector's recommendation in favour of granting planning permission, on the mistaken assumption that the planning authority had made a study of the area and decided to retain the area as green belt. In fact the study obtained by the planning authority was not directed to that issue. The Court of Appeal held that the error was a significant factor in his decision-making process and that it could not be said that he would necessarily have reached the same conclusion if he had not acted on the erroneous factor.

[254] In accordance with Simplex where a factual error has been taken into account in reaching a decision, that decision would be ultra vires unless either the error was an insignificant or insubstantial one or the court was satisfied that, even although one reason for a decision was bad in law, the same decision would have been reached on the basis of other valid reasons. In Simplex the error in relation to the purpose of the study undertaken by the council was undeniably a significant factor in the minister's decision and was not merely insubstantial or insignificant. Nor was it possible to say that the minister would have reached the same decision if he had not taken into account the erroneous factor. The judge therefore erred in the exercise of his discretion to refuse relief and the appeal was allowed.

[255] In Simplex Purchas LJ provides a helpful compendium of materials at pages 323 to 327.

[256] On the facts of Simplex, including the emphasis and the wording used by the Minister, Purchas LJ concludes, on page 327 that:-

"The error, in my judgment, is undeniably a significant factor in the decision-making process carried out by the Minister. Accordingly, even if it is not a dominant reason for the decision, it cannot be excluded as "insubstantial" or "insignificant".

[257] Purchas LJ also states (on page 327):-

"It is not necessary for Mr Barnes (counsel for Simplex) to show that the Minister would, or even probably would, have come to a different conclusion. He has to exclude only the contrary contention, namely that the Minister necessarily would still have made the same decision."

[258] Staughton LJ at page 329 of Simplex states:-

" ... the authorities cited by Purchas LJ show that, where one of the reasons given for a decision is bad, it can still stand if the court is satisfied that the decision-making authority would have reached the same conclusion without regard to that reason. ... I cannot be satisfied in this case that the Secretary of State would still have refused planning permission even if he had not mistakenly believed that the council had carried out a study to determine whether the land should be in the green belt. I cannot be satisfied that his decision might not have been different."

[259] Staughton LJ concludes at page 329:-

" ... I have held that the admitted error was or may have been material. I have to consider discretion. I would quash the decision of the Secretary of State."

[260] In the present case, parties were agreed that the approach in Simplex GE (Holdings) v Secretary of State for the Environment was the proper approach to be applied.

[261] In Elmbridge Borough Council v Secretary of State for the Environment and Another the second respondent applied for outline planning permission to make a private service road and build a detached house and double garage in the back part of the garden of his house. On the plan forming part of the application there were two different scales used: 1:1250 on the "location" plan; 1:500 on the block plan. The distance between the proposed new house and the existing house was 170 feet. The applicant local planning authority refused permission on environmental grounds. The second respondent appealed to the Secretary of State, and the appeal was determined by an inspector on written representations. The inspector visited the site with representatives of the local planning authority and of the second respondent. In his decision letter, he said: "Bearing in mind that the new dwelling would be some 400 feet from the old and that ... there is ... a wealth of high-level screening ..., I conclude that the site is not only a desirable dwelling plot in itself but one which can be achieved without material detriment to neighbouring ones." The local planning authority applied under section 245 of the Town and Country Planning Act 1971 for the inspector's decision to the quashed on the ground that it was vitiated in law by the error. Bristow J refused the application.

[262] In Elmbridge, at page 547-548, Bristow J states:-

"On the authorities, it has been held that glaring miscalculations or obvious clerical errors do not amount to defects in the expression of reasons that vitiate decisions as a matter of law. I respectfully agree. The object of the exercise of giving reasons is, among other things, so that parties can see whether the decision has been reached according to law. An obvious clerical error or a manifest linguistic inaccuracy does not blind the parties in this respect. Did what happened here - an obvious silly mistake in the expression of the distance between the existing and the proposed houses, albeit that the dimensions was clearly a matter of importance - in any way make it difficult for the parties to see whether the inspector's decision had been reached according to law?

In my judgment, clearly not. The parties had been to the site with the inspector on December 5, 1978. They knew perfectly well that he knew the distance was of the order of 56 yards, not 173 (sic). They knew that he had the plans attached to the application that showed, provided one did not make the silly mistake of scaling them wrong, that the distance was 170 feet, not 400 feet. When they got the decision letter, the parties or their advisers must have known that "400 feet" was no more than an obvious silly mistake, made by carelessly using the wrong scale on the plan. Mr Baptist's advisers stigmatised the 400 feet to the Department as a mistake, and I have no doubt that the council's advisers realised that it was a mistake equally well. The evidence put in before me on behalf of the council does not for a moment suggest the contrary.

So, in my judgment, what happened here did not vitiate the decision of the inspector as a matter of law and an obvious silly mistake can be added to glaring inaccuracies or obvious clerical error as an illustration of the sort of innocuous defects in the expression of reasons for a decision that does not amount to an error of law because it does no harm and produces no doubt as to whether the decision has been reached according to law or not. The motion is dismissed."

[263] I now turn to outline my decision in the present case.

Decision in relation to Landscape and Visual Impacts
[264] In my opinion, on a fair reading of the Reporter's decision letter, the admitted error in the second-last sentence of paragraph 5.9 (where the Reporter refers to "an angle of view of nearly 12 degrees" instead of 7.6 degrees) is not sufficiently material to result in the decision being quashed.

[265] It is extremely unfortunate that such an error should have found its way into the decision letter but, in my view, the error is not of such a character as to justify quashing the decision.

[266] Applying the approach in the Simplex case (cited above at (1989) 57 P. & C.R. 306) I am satisfied that the error of calculation in the present case was not a significant factor in the Reporter's decision-making process.

[267] Although the factual position here is somewhat different from the Elmbridge case (cited above at (1980) 39 P. & C.R. 543), a similar conclusion falls to be reached.

[268] In the whole circumstances, which I have outlined above in some detail, I consider that the Reporter's decision was within the powers of the Act.

[269] When the admitted error is seen in proper context it can fairly be said that, so far as material, the Reporter knew and acted upon the correct factual basis.

[270] The Reporter has carried out an erroneous calculation and he has included it in the second last sentence of paragraph 5.9 of his decision letter but, importantly, the underlying material facts used in that calculation are in fact correct.

[271] The Reporter used the correct "raw data" - to use Ms Crawford's words.

[272] Further, looking beyond the erroneous calculation itself to the sentence which follows immediately thereafter, it is clear that the Reporter had in mind the correct factual position.

[273] The Reporter had correctly identified the dimensions of the turbines.

[274] He had the benefit of the visualisations.

[275] He had also visited the site.

[276] In support of the Appellant's submissions Mr Campbell argued forcefully that there is a material difference between the correct angle of 7.6 degrees and the angle of 12 degrees which was the angle calculated by the Reporter.

[277] If the Reporter had acted upon that erroneous angle of view then he would have been proceeding on the basis that at 700m the tip of the turbine blade would have to have been some 148m above the ground.

[278] However, it is clear that the Reporter proceeded on the basis that the tip of the turbine blade would in fact be 93 metres (not 148 m) above the ground.

[279] The Reporter specifically mentions the correct height (93m) in paragraph 5.9. Indeed he says so in the same sentence as mentions the erroneously calculated angle.

[280] Any doubt within the second-last sentence of paragraph 5.9 (as to whether the Reporter was proceeding on the basis of the miscalculated angle in degrees or the correctly stated height) is satisfactorily resolved and, in my opinion, removed when that sentence is seen in context.

[281] In the very next sentence (in the last sentence of paragraph 5.9) the Reporter goes on to say how the angle might be envisaged as (1) a slope expressed as a percentage (2) by scaling down and (3) by scaling up. That sentence is agreed to be correct.

[282] In particular, having mentioned the correct height (93m), the Reporter states correctly that:-

"It may be helpful for the reader to envisage the angle as a slope of some 13.3% or a little over one in eight (12.5%); or by scaling down to a notional wind turbine of 9.3 m blade and 6.0 m hub height, seen from 70 m (a typical length for the plot of a large suburban villa); or by scaling up to a mountain slightly over 900m ('Munro' height) seen from 7 km."

[283] Accordingly, despite the single erroneous reference to the angle of view in degrees the Reporter has proceeded on the basis of the correct height (93m) and he has correctly described the angle in three different and three correct ways.

[284] What the Reporter appears to have been envisaging was in fact correct.

[285] The Reporter states inter alia (in line 7 of paragraph 5.9) that:-

"the nearer turbines would be in almost full view from the properties".

[286] He also states in paragraph 5.10 that:-

"Even if I dismissed the evident hostility of near neighbours as untypical of the population as a whole, I could not with a clear conscience conclude that at the most affected houses views from gardens or windows towards the sea would not be involuntarily dominated by the windfarm to an extent that for the generality of occupants would impinge markedly on residential amenity."

[287] The Reporter concludes, in relation to the assessment under section 25 taking into account his earlier conclusions (in paragraph 5.25) that:-

"From the evidence and site inspections I consider that it would be unjustifiably complacent or optimistic not to find that there would be significant detriment to individual and community residential amenity from visual impacts and, albeit with less certainty, noise impacts from the proposed windfarm in normal operation, observing normal planning conditions and requirements of other regulatory regimes. In the context of the Highlands and for the purposes of this policy I do not take the word 'community'' as requiring a tightly built-up area, but as extending to loose semi-rural clusters such as along the A836 and the Achreamie road near the appeal site. There is accordingly failure under criterion [7] of policy G2. Insofar as the siting of the proposed turbines would be too close to the most affected houses to pass criterion [7], it must also be deemed not to be sensitive in terms of criterion [10], although there is no criticism of the proposed design of turbines or their layout."

[288] That conclusion is not affected, in my opinion, by the erroneous calculation (expressed in degrees) in the second-last sentence of paragraph 5.9.

[289] When seen in context, in my view, that error does not amount to a material misdirection.

[290] In relation to landscape and visual impacts, notwithstanding the admitted error, I am satisfied that the Reporter's conclusion was bound to be the same.

[291] The Respondents' arguments prevail.

Decision in relation to Noise Impacts

[292] In relation to noise impacts I can see considerable force in the Appellant's submissions but I am satisfied that the same decision (refusal) would have been reached on the basis of other valid reasons, namely, those relating to landscape and visual impacts (which I have outlined above).

[293] I agree with the Appellant that the Reporter appears to have fallen into error on page 24 of his decision letter (in paragraphs 5.15 and 5.17).

[294] It was not disputed that the Reporter has used a mistaken chronology at the beginning of paragraph 5.17. It was also accepted by the Scottish Ministers that paragraph 5.17 could have been better expressed.

[295] I have outlined the competing contentions of the parties in some detail above. [296] In relation to paragraph 5.15 the Reporter is talking about low noise levels but he still seems to have in his mind a differential of 5dB(A). That appears to reveal a misunderstanding.

[297] In relation to paragraph 5.17 it may well be the case that the Reporter has in mind questions relating to planning conditions, but even when he considers low background noise situations he continues to apply 5dB(A). That appears to reveal the same misunderstanding.

[298] I agree with Mr Campbell, for the Appellant, that there appears to be a misunderstanding or confusion as to guidance on the part of the Reporter in relation to low noise conditions. The Reporter appears to take the view that there will be occasions where ETSU will be breached because there are periods of low-background noise.

[299] However, the Appellant's criticisms in relation to noise impacts do not alter my conclusion in relation to this appeal.

[300] On any view, the Reporter refused the appeal principally on the grounds of landscape and visual impacts. However, when seen in context, the significance of landscape and visual impacts goes further.

[301] In the whole circumstances (including paragraphs 5.10, 5.18 and 5.25 of the decision letter), I am satisfied that, notwithstanding the alleged error in relation to noise impacts, the result (refusal) would have been the same because of landscape and visual impacts.

[302] The adverse conclusion in relation to landscape and visual impacts was, in itself, bound to lead to refusal of the appeal.

Conclusion
[303] In the result, I am satisfied that the Reporter's conclusion in relation to landscape and visual impacts was well founded.

[304] I am also satisfied that the adverse conclusion in relation to landscape and visual impacts was bound to lead to refusal of the appeal.

[305] The Reporter's decision refusing the appeal was within the powers of the 1997 Act.

[306] I was not satisfied that the Reporter's decision should be quashed.

Decision

[307] In the whole circumstances, and for the reasons outlined above, I shall refuse the appeal.

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> CRE Energy Ltd Re: A Decision Of The Scottish Ministers [2006] ScotCS CSOH_131 (29 August 2006) URL: http://www.bailii.org/scot/cases/ScotCS/2006/CSOH_131.html Cite as: [2006] CSOH 131, [2006] ScotCS CSOH_131

Scottish Court of Session Decisions