The owners of a Speyside whisky distillery who claimed that the development of a new wind farm in Banffshire was “unlawful” on the basis that the construction works did not begin within the five-year time limit imposed upon the developer have had their legal challenge dismissed.
William Grant & Sons Distillers Ltd (WGS), owners of the Glennfiddich distillery and visitor centre, argued that access works were not part of the development and sought judicial review of a decision by Moray Council to the effect that the planning conditions had been met.
But a judge in the Court of Session refused to grant the orders sought and upheld the decision of the local authority after ruling that the developer Dorenell did “validly commence” the development.
Lord Woolman heard that the Scottish Ministers granted permission for the construction of the 59-turbine wind farm on the Glenfiddich estate near Dufftown on 22 December 2011, but attached a lengthy string of conditions, one of which was a requirement that the development commence within five years.
WGS, an “implacable opponent” of the wind farm because it considered that the development would have an “detrimental impact” on the Speyside landscape and “adversely affect” local tourism, unsuccessfully challenged the decision to grant consent.
But after the grant of the permission WGS monitored the progress of the works.
In August 2016 Dorenell served a notice on the council stating that it would commence enabling works at the end of that month, and in October the local authority confirmed that the development had been validly commenced.
The works were designed to provide access to the proposed location of the turbines by upgrading a road junction and existing forestry track.
However, WGS received legal advice querying the legal status of the access works, with an opinion from counsel in September 2016 suggesting that the works may be “unlawful”.
Dorenell carried out further works on 22 December 2016, but WGS believed that commencement did not take place within five years, although it did not raise proceedings to challenge any decision taken on or before that date.
Instead, it sought to review a decision taken by the council on 6 March 2017 holding that certain planning conditions had been purified.
WGS submitted that Dorenell did not comply with the five-year time limit as the access works were not part of “the development”, because they lay outside the red line area on the map which depicted the site.
It was also argued that the works undertaken on 22 December 2016 were “de minimis” (a Latin expression meaning “about minimal things”) and “did no more than break the ground”.
However, the judge held that the site did not define the scope of the development.
In a written opinion Lord Woolman said: “The Scottish Ministers gave consent to ‘the development’. That necessitates reference to the environmental statement.
“The environmental statement recognises that the access works had to take place first…Unless and until the access works were carried out, construction traffic could not reach the turbine location. Accordingly, I hold that Dorenell did validly commence the development in August 2016.
“The question is put beyond doubt by the works undertaken within the red line area on 22 December 2016…The test is when a material operation ‘begins to be carried out’. Very little needs to be done to satisfy that requirement…It is evident from the photographs that the works were not de minimis.”
The judge also held that WGS had failed to bring the application within the three-month time limit, as required for judicial review.
Proceedings must be brought within three months of the date on which the grounds of challenge first arose, but WGS only served the petition on 8 June 2017.
Lord Woolman said: “Looking at the chronology, WGS must have contemplated proceedings on receipt of senior counsel’s opinion in September 2016. Litigation became an option when the council approved commencement the following month.
“The grounds of challenge clearly arose at midnight on 22 December 2016. Matters crystallised then. Accordingly, WGS should have raised this action within three months of that date.
“In any event, I would have refused to exercise my discretion to grant relief. WGS has not given a good reason for the delay in raising proceedings.”
He added that to quash the decision would “undermine the needs of good public administration” and cause “serious prejudice” to the developer and third party contractors, as over £100 million has been spent on the development to date.