ENERGIEKONTOR UK LTD FOR JUDICIAL REVIEW [2020] ScotCS CSOH_107 (23 December 2020)

ENERGIEKONTOR UK LTD FOR JUDICIAL REVIEW [2020] ScotCS CSOH_107 (23 December 2020)

The MOD's policy of allocating noise budget to wind farm developments by reference to different planning stages for larger (>50MW) and smaller (≤50MW) developments is irrational and unlawful. The distinction lacks rational justification, fails to treat like cases alike, and confers an unjustified advantage to larger developments. The petitioner is entitled to both declarator and reduction of the MOD's allocation decision and the resulting waiting list.

Citation
[2020] ScotCS CSOH_107
Parties
Petitioner: Energiekontor UK Limited; First Respondent: Advocate General for Scotland (Ministry of Defence); Third Respondent: CWL Energy Limited
Jurisdiction
Scotland
Judgment Date
23 December 2020
Procedural Posture
Judicial Review / Final Judgment
Outcome
Petition allowed. Orders for declarator and reduction granted.
Legal Topics
Judicial Review, Irrationality, Wednesbury Unreasonableness, Allocation of Noise Budget, Equality Principle, Planning Permission, Renewable Energy, Policy Challenge
Administrative Law Planning Law Public Law Judicial Review Irrationality Wednesbury Unreasonableness Allocation of Noise Budget Equality Principle +3 more

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Parties

Energiekontor UK Limited

Petitioner

Advocate General for Scotland (Ministry of Defence)

First Respondent

CWL Energy Limited

Third Respondent

Procedural Posture

Judicial Review / Final Judgment

Legal Issues

  1. 1 Whether the Ministry of Defence's policy for allocating noise budget to wind farm developments near the Eskdalemuir Seismic Array is irrational and unlawful
  2. 2 Whether the distinction in allocation timing between developments above and below 50MW is justified
  3. 3 Whether the petitioner is entitled to declarator and reduction of the MOD's allocation decision

Ratio Decidendi

The MOD's policy of allocating noise budget to wind farm developments by reference to different planning stages for larger (>50MW) and smaller (≤50MW) developments is irrational and unlawful. The distinction lacks rational justification, fails to treat like cases alike, and confers an unjustified advantage to larger developments. The petitioner is entitled to both declarator and reduction of the MOD's allocation decision and the resulting waiting list.

Court Disposition

Petition allowed. Orders for declarator and reduction granted.

Orders

  • Declarator that the MOD's policy for allocation of noise budget is irrational and unlawful.
  • Reduction of the MOD's decision to allocate noise budget to CWL's Faw Side development and the resulting waiting list.