Case considering the grant of planning permission for a wind farm at Fallago Rig in the Lammermuir Hills. Due to the large capacity of the development, consent was required by the Scottish Ministers in terms of the Electricity Act 1989. Consent was granted by the Scottish Ministers by a decision letter in November 2010. In terms of the legislation that consent is also deemed to be planning permission for the development.
There were a number of interested parties who objected to the development leading to two public enquiries and what is described as voluminous correspondence. The petitioners sought reduction of the decision letter on various reasons (including natural justice, ultra vires, unlawful conditions and inadequate reasons), however, the main thrust of their argument was bias.
The petitioners argued that, while it was quite lawful for elected representatives to be predisposed to renewable energy (it being Government policy to encourage the development and use of renewable energy from natural sources), it was not lawful to pre-determine an application which fits that policy without first considering the objections. In this case the petitioners argued that the government had made up their mind to bring about the conditions in which consent could be granted. They argued that the Government had had covert conversations with the MOD (which was the main objector to the development on the basis that the turbines could interfere with radar systems) and those conversations were successful as the MOD withdrew its objection. This, they argued, showed bias.
After detailed consideration of the authorities Lord McEwan looked to the test for bias in Porter v Magill (2002) in which Lord Hope came to the conclusion the test was:
"... whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that ..." (the decision taker) "... was biased"
Lord McEwan took the view that the best guidance on the application of that test to a planning case was given in R (Lewis) v Redcar and Cleveland Borough Council (2009) which made it clear that a Minister’s position is different from someone holding a judicial or quasi judicial office:
"... the requirement made of such decision makers is not, it seems to me, to be impartial but to address the planning issues before them fairly and on their merits, even though they may approach them with a predisposition in favour of one side of the argument or the other. It is noticeable that in the present case no complaint is raised by reference to the merits of the planning issues. The complaint, on the contrary, is essentially as to the timing of the decision in the context of some diffuse allegations of political controversy. So the test would be whether there is an appearance of predetermination in the sense of a mind closed to the planning merits of the decision in question. Evidence of political affiliation or of the adoption of policies towards a planning proposal will not for these purposes by itself amount to an appearance of the real possibility of predetermination or what counts as bias for these purposes. Something more is required... ' unless there is positive evidence to show that there was indeed a closed mind, I do not think that prior observations or apparent favouring of a particular decision will suffice to persuade a court to quash the decision ... "
After considering the documents and evidence, Lord McEwan found that, far from showing pre-determination on the part of the Minister, there was a great deal to indicate the opposite i.e. an open fair mind. He also failed to find that the conduct of the Minister could be criticised noting that “in the realm of administrative law there is nothing wrong with the decision taker meeting an objector.”
Scottish Courts, 27 May 2011