The appellants sought planning permission to construct a bioenergy plant at a rural location south of Elgin. After a reporter upheld Moray Council’s refusal to grant permission, it appealed to the Inner House of the Court of Session.

The appeal was heard by Lord Clerk, Lord Ericht and the Lord President, Lord Pentland, with James Mure KC appearing for the appellant and Stephen Donnelly for the respondent.

General prohibition on development sprawl

In 2023, the appellant bioenergy company applied to Moray Council for planning permission for an anaerobic digestion plant at land south of Elgin. With capacity of 100GWh per year, the plant would process by-products from four local whisky distilleries and produce biomethane – a low-carbon gas capable of use in heating and transport – as well as digestate for use as agricultural fertiliser.

Two years later, the application was refused. Among the eight reasons for Moray Council’s rejection of the planning application lay the fact that the proposed project would be located in Elgin’s ‘Countryside Around Towns’ (CAT) zone and, consequently, was subject to a general prohibition on development. The nature of the proposal, according to the Council, would “significantly undermine the function, nature and character of the CAT area”.

Citing the climate benefits associated with its project’s potential to reduce fossil fuel consumption, the appellant appealed to a reporter appointed by the Scottish ministers. Although in no doubt as to the proposal’s ability to assist in tackling climate change, the reporter noted its potential contribution to development sprawl and the possibility of constructing the project outside of the CAT area among reasons for rejecting the appeal.

Before the Inner House of the Court of Session, the appellant submitted that the reporter had erroneously elevated Moray Council’s policy against development sprawl into an “embargo on any renewable energy development” and had failed to take proper account of other relevant policy goals in conducting the balancing exercise at hand.

No proper ground to second-guess reporter

Lord Pentland, the Lord President, began his decision by observing that: “As is well-known, a fundamental principle of planning law is that the courts are concerned only with the legality of the decision-making process. The courts exercise a supervisory jurisdiction and are not empowered (or equipped) to engage in a reconsideration of the merits of a case. They cannot re-evaluate a judgement concerning the application of planning policies to the particular facts and circumstances arising in the context of the application.”

He continued: “In the present case the appellant’s attack on the reporter’s decision amounted in effect to an invitation to the court to disregard these fundamental principles. The appellant sought to persuade the court that a different conclusion should have been reached on questions of planning judgement; the balancing exercise, which lay at the heart of the decision, should have been conducted differently and the relevant factors should have been differently weighed. Such an approach is not legitimate. In developing this approach, the appellant failed to read the decision as a whole and adopted an unduly narrow textual analysis of it.”

Regarding the reporter’s decision itself, the Lord President noted that: “When read as a whole, as it must be, the reporter’s decision in the present case makes clear that he determined the appeal in accordance with the development plan, as he was required to do by section 25(1) of the Town and Country Planning (Scotland) Act 1997. He was entitled to consider and decide the appeal on the basis that the determining issue was whether the principle of the development was supported by the development plan. The central issue, which the reporter correctly identified, was whether the proposed development would be in a location that was acceptable in terms of the development plan.”

He added: “We can detect no error in the reporter’s approach. He addressed all the relevant issues in a detailed, careful and well-balanced decision. He understood that the proposed development was supported by national planning policy, but that was not the end of the matter. He had to balance that support against the protection accorded to existing settlements by policy EP4 in the [Moray Local Development Plan 2020]. In the circumstances of the case these policies pulled in different directions, and it was, therefore, the reporter’s task to exercise his planning judgement in deciding whether, having regard to the whole of the development plan, permission should be granted. At the end of the day, he concluded that it should not be. That is the type of judgemental decision with which the court is not entitled to interfere.”

Finding the appellant’s criticisms of the reporter’s decision to be unfounded, he concluded: “Reading the decision as a whole, it is impossible to conclude that the reporter left any relevant factor out of account or that he misdirected himself as to the meaning and effect of any of the relevant policies and their application to the facts of the case … In the final analysis, the reporter held that the demonstrated emissions savings had to be balanced against a plan-led settlement strategy to restrict new development around Elgin. His judgement was that the scale of the emissions savings was not sufficient to overcome the long-term settlement strategy. There is no proper ground on which the court can interfere with that judgement; it was one for the reporter to make.”

The appeal was accordingly dismissed.