COMMUNITY WINDPOWER LTD AGAINST THE SCOTTISH MINISTERS AND EAST AYRSHIRE COUNCIL AND FIM FOREST FUNDS GENERAL PARTNER LTD AGAINST THE SCOTTISH MINISTERS AND EAST AYRSHIRE COUNCIL [2020] ScotCS CSIH_17 (24 April 2020)

COMMUNITY WINDPOWER LTD AGAINST THE SCOTTISH MINISTERS AND EAST AYRSHIRE COUNCIL AND FIM FOREST FUNDS GENERAL PARTNER LTD AGAINST THE SCOTTISH MINISTERS AND EAST AYRSHIRE COUNCIL [2020] ScotCS CSIH_17 (24 April 2020)

The court held that the supplemental conditions required fully operational replacement water supplies to be physically connected and ready for use at the affected properties before development commenced. The appellants' inability to secure cooperation from third-party proprietors did not excuse non-compliance. The enforcement notice did not exceed what was necessary to remedy the breach, and the reporter's interpretation and application of the conditions was correct in law.

Citation
[2020] ScotCS CSIH_17
Parties
First Appellant: Community Windpower Limited; Second Appellant: FIM Forest Funds General Partner Limited; Respondents: The Scottish Ministers; Interested Party: East Ayrshire Council
Jurisdiction
Scotland
Judgment Date
24 April 2020
Procedural Posture
Statutory Appeal Under Section 239 of the Town and Country Planning (scotland) Act 1997 / Appeal to the Inner House, Court of Session, Against Reporter's Decision on Enforcement Notice
Outcome
Appeals dismissed
Legal Topics
Enforcement of Planning Conditions, Interpretation of Planning Conditions, Private Water Supplies, Suspensive Conditions, Remedies for Breach of Planning Control
Planning Law Administrative Law Environmental Law Enforcement of Planning Conditions Interpretation of Planning Conditions Private Water Supplies Suspensive Conditions Remedies for Breach of Planning Control

Case Brief

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Parties

Community Windpower Limited

First Appellant

FIM Forest Funds General Partner Limited

Second Appellant

The Scottish Ministers

Respondents

East Ayrshire Council

Interested Party

Procedural Posture

Statutory Appeal Under Section 239 of the Town and Country Planning (scotland) Act 1997 / Appeal to the Inner House, Court of Session, Against Reporter's Decision on Enforcement Notice

Legal Issues

  1. 1 Whether the appellants were in breach of planning control by commencing development before suspensive conditions relating to water supplies were fulfilled
  2. 2 Proper interpretation of 'fully operational replacement water supplies' and related supplemental conditions
  3. 3 Whether steps required by the enforcement notice exceeded what was necessary to remedy any breach

Ratio Decidendi

The court held that the supplemental conditions required fully operational replacement water supplies to be physically connected and ready for use at the affected properties before development commenced. The appellants' inability to secure cooperation from third-party proprietors did not excuse non-compliance. The enforcement notice did not exceed what was necessary to remedy the breach, and the reporter's interpretation and application of the conditions was correct in law.

Court Disposition

Appeals dismissed

Orders

  • The appeals by Community Windpower Limited and FIM Forest Funds General Partner Limited are refused.
  • The reporter's decision upholding the enforcement notice is affirmed.