The Mossend freight terminal is a relatively unusual example of a successful legal challenge based on a failure to give proper or adequate reasons.
The Scottish Ministers granted permission contrary to a reporter’s recommendation. They focused on:
– The specific locational need, requiring a site adjacent to existing rail services;
– The potential reduction in traffic congestion and carbon emissions, estimated to be in the order of 140,000 tonnes of CO2 emissions annually;
– Significant economic benefit through job creation, estimated to be 1,000 net new transport jobs by 2030.
The Inner House held that the Ministers had failed to discuss or consider:
– Three alternative sites that the reporter had identified, which, crucially, appeared to be more aligned with national and development plan policies.
– In respect of economic benefit through job creation, any displacement effect on existing facilities.
– The reporter’s concern regarding loss of the green belt, contrary to both the LDP and SDP. At the most recent review of the LDP, excluding the site from green belt designation had also been considered but rejected. No reason was given in the Scottish Ministers’ decision for departing from these conclusions.
– The reporter had identified that the anticipated adverse landscape and visual impact of the development on the existing residential area was contrary to specific LDP policy. The Scottish Ministers’ observation that the visual impact could be reduced by ‘good design’ was held to be an inadequate response.
Ultimately, the Inner House considered that the Ministers had failed to explain why they disagreed with the reporter on a number of critical issues or provide sufficient explanation as to why their own reasoning should be preferred.
The duty on the Ministers to engage with reporter’s analysis and provide detailed explanation was arguably greater because their decision was contrary to both the LDP and SDP.