Raeshaw Farms LTD against Scottish Ministers and another (Court of Session) [2026] CSIH 10 (17 February 2026)

Judgment 00368/2025. It involves an appeal related to a wind farm known as "A Ruña III". One of the challenges was to the separation of the construction project and the relative power line in the consideration of the environmental impacts leading to authorisation of the scheme. The court concluded that the wind farm project consisted of both the wind turbines and the production of electrical storage that is fed into the grid. Accordingly, in that particular application, the different components should not have been considered separately but together, in a single environmental impact statement. The challenges to the reporter's decision: Analysis and Decision [42] The appellant advances four grounds of challenge relating to the reporter's treatment of the grid connection in this case. The first is a distinct irrationality challenge about taking the benefits of the project that could only be realised were a grid connection to be installed without taking the disbenefits into account. The remaining grounds address the central issue of whether the windfarm and associated grid connection properly constituted a single project requiring an Environmental Impact Assessment of the whole development and not just the construction phase. The reporter's reasons for rejecting the contention that the construction and grid connection phases were parts of the same EIA development are also attacked

as inadequate. We will address the central issue first. Did the reporter err in his approach to the project splitting objection? [43] The appellant's objection on the proposed division of the scheme was raised directly with the reporter in a written response to the interested party's appeal. That submission contended that it would be wrong to assess the proposal without having regard to the environmental impact of the necessary grid connection, and "the absence of a full assessment would lead to a legally inadequate EIA assessment" (Appendix page 127, paragraph 13). This substantial challenge is addressed in a single brief paragraph of the decision, paragraph 129 (reproduced above at [17]). In disagreeing with the contention that the full environmental effects of the interested party's proposal could not be assessed without considering the detail of the necessary grid infrastructure, the reporter acknowledged that it was unknown whether the future grid connection solution would require planning permission. The statement that the grid connection solution would, regardless of whether planning permission is required "be subject to its own evaluation" is opaque. It does not address the critical issue of whether the windfarm and associated grid connection are a single project for the purpose of EIA assessment. The reference to the grid connection being "not part of the current

proposal", while accurate, is a bald statement of fact and not an evaluation of whether such an approach is acceptable as a matter of environmental law. [44] More fundamentally, in addressing the objector's reference to "salami slicing" and regarding it as "misdirected", the reporter asserted that the term "properly refers to an attempt to circumvent the objectives of the EIA Directive and regulations" (my emphasis) by dividing a single project into separate parts. The authorities are clear that intention is not the relevant benchmark; what matters is the effect that a project is likely to have on the environment ( Commission v Spain (Case C-227/01) [2005] Env LR 20 ; R (Ashchurch Rural Parish Council v Tewkesbury BC [2023] EWCA Civ 101 ). The reasoning ended with an assertion that the development proposal has been subject to EIA "in the normal way" and that any subsequent proposal for a grid connection, if EIA development, would also require to be so assessed. [45] We consider that the reporter erred in failing to conduct the necessary fact specific evaluation of the proposal. It was incumbent upon him to do so before reaching a conclusion on whether the windfarm and grid connection constituted a single project for which an EIA report that analysed the potentially significant cumulative effects of both aspects was required. We reject the submission made at the hearing before

us by Senior Counsel for the respondents that any error by the reporter on this point was not a material one. This was a material error. Further, and also materially, the reporter misdirected himself in relation to the definition of "salami slicing" in a way that resulted in a failure to focus on the fundamental question of the interrelationship between the two phases of development and whether they both required an EIA at this stage. By focusing too narrowly on the way in which the application was framed rather than considering what was the true nature and scope of the project, the reporter failed to show that he understood the central issue in contention. In contrast with the situation in Wildland v Highland Council [2021] CSOH 87 ; 2022 SLT 1082 (discussed at paragraphs [23]-[24] above) the reporter proceeded on the basis that it was unknown whether planning permission would be required for the future work not included for assessment in the EIA. That lack of knowledge was relevant to the correct approach that should have been taken to the project splitting issue. [46] The need to conduct a properly focussed fact specific analysis is amply supported by the recent domestic authorities. In Ashchurch the Court of Appeal was clear that when considering a project in the context of the EIA Directive the decision-making authority should consider "the degree of connection" between

the development and its putative effects (paragraph 74). In doing so, the decision maker is not constrained by the terms of the application before him ( Ashchurch at paragraph 78). What was required in this case was careful consideration of whether the windfarm construction and grid connection were, on the basis of the available material, so closely connected as to form parts of a single project. There was, however, no attempt to consider the type of factors listed in R (Wingfield) v Canterbury City Council [2020] JPL 154 as relevant to such an exercise. The issue of functional interdependence was clearly relevant, as indisputably the windfarm could never become functional without a grid connection. It may be that other factors could have militated against a conclusion that the scheme constituted a single project. Senior Counsel for the respondents highlighted that in both the Annexes to EU Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment and in the Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2017 (SSI 2017/102) wind farms and grid connections are the subject of separate project descriptions. However, that general observation does not assist the task of considering a particular scheme. [47] As the Court of Appeal confirmed in R (Together against Sizewell C Ltd) v Secretary

of State for Energy Security and Net Zero [2023] EWCA Civ 1517 (at paragraph 68) under reference to paragraphs 81, 83 and 100 of Ashchurch, it is not for the court to undertake the necessary evaluation. It is sufficient that we have concluded that the decision does not illustrate that such an evaluation was carried out at all, or at least not adequately. This court is not in a position to decide whether in fact the project under consideration constituted a single project for the purposes of assessing its environmental impact; that has yet to be properly determined. Such a determination properly falls to be made by the appropriate authority, the respondents. [48] The conclusion we have reached is also consistent with the authorities from the Republic of Ireland, where the issue of the nature of windfarm projects requiring grid connections has been closely analysed in the context of the requirements of the 2011 Directive on several occasions. In that jurisdiction the approach has been to treat the separation of windfarm construction from the necessary grid connection as an issue of principle and the view is that such separation is unlawful having regard to the terms of the 2011 Directive. In the UK jurisdictions, the focus has tended to be on the decision maker's role in undertaking a proper evaluative assessment before determining whether the project can be regarded as a single

one for the purposes of assessing cumulative environmental impacts. However, the need for such a fact specific evaluation before any decision can be made is a common theme between the two approaches and is supported by the influential reasoning of Advocate General Gulmann in Bund Naturschutz v Freistaat Bayern (Case C-396/92) [1994] ECR I-3717 . The respondents' somewhat curious submission that the Irish cases should be treated with caution misses that point. In any event, while each member state will have transposed the 2011 Directive into its own national laws, that does not detract from the value of domestic courts considering the interpretative approach to the 2011 Directive taken by other states. [49] We endorse the view expressed by Baker J ( Daly, at paragraphs 44-45) that it cannot be said in absolute terms that the only permissible way in which a planning application for a windfarm can be made is to apply for the whole project to include the grid connection. The Regulations themselves cater for multistage consent processes. The requirement is to identify "the project" for the purpose of compliance with the 2011 Directive. Where, as in this case, whether there will be any future EIA is unknown, the approach that may best secure compliance may be to address the cumulative environmental impact of the whole project before the first decision on planning permission is made.

That would be consistent with the 2011 Directive's enjoinder to take the environmental effects into account "at the earliest possible stage in all the technical planning and decision-making processes" (2011 Directive recital (2)). Notably, the Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora does not require that the assessment be carried out at the earliest possible stage (Lang J in Wingfield at para 73, referred to by the UKSC in C G Fry and Son v Secretary of State for Levelling Up, Housing and Communities [2023] EWHC 1622 (Admin) ; [2025] UKSC 35 , at para 41). [50] Senior Counsel for the respondents and the interested party both sought to commend the "staged approach" to assessment referred to in Sizewell as legitimate and preventative of delay and sclerosis in the system. The argument was that in cases where the end user and details of the off-site works were not yet known, it might be well-nigh impossible to include a description of the likely significant environmental effects of those works. At the hearing before us, affidavits were available on this point, from Michael David Briggs, employed as Head of Planning (South Scotland) for the interested party and Ian Kelly, an independent planning consultant. [51] Mr Briggs confirmed that he had played a key role in planning applications or appeal processes for 28 separate

onshore windfarm projects within the UK. In none of those had the potential impact of the off-site grid connection been assessed in detail as part of the EIA for the construction of the windfarm. His affidavit explained that there is a highly structured process through which individual energy generation projects must secure a grid connection agreement to connect their generating assets to the electricity transmission and/or distribution networks. Some grid connection agreements require significant and expensive reinforcements works to be undertaken. Accepting a grid connection offer can involve a significant financial commitment for the developer, with overall costs being incurred on a staged basis but frequently running into tens of millions of pounds. It was not uncommon for generating projects to have achieved permission without any access to the network being secured to avoid the risk of making potentially abortive payments under a connection agreement. As the network planning system worked on a "first come first served basis", a congested connection queue had now formed, with many speculative projects with connection dates years in advance blocking projects ready to proceed. [52] Mr Kelly had been engaged by the appellant to assist in the presentation of their objections to the Wull Muir Wind Farm planning application. In his affidavit he accepted that in previous

applications the potential environmental impact of the grid connection had not been assessed "in detail" as a matter of fact but not as a statement of what the position should be. In his view, grid connection planning should proceed alongside the preparation of a wind farm application rather than separately. This would avoid planning permission being granted for windfarms with little prospect of securing a grid connection date within the lifetime of the consent given the backlogs in the system. Identification of the offsite infrastructure requirements for all other land use development projects at an early stage was standard procedure. There was a known connection point for Wull Muir Wind Farm and the assessment work could have been progressed earlier, at least by the planning appeal stage. [53] The practical and financial difficulties relied on by the interested party as militating against undertaking a cumulative assessment of the environmental impacts of the proposed scheme at an earlier stage are relevant insofar as, indisputably, the 2011 Directive must be interpreted realistically. There is, however, support in the affidavits, particularly that of Mr Kelly, for the view that it would not have been unrealistic in the circumstances of the current process to have done so. The practical and commercial difficulties that flow from the details of a grid connection being

unavailable early in the planning stages of a windfarm development were also raised as an issue in the Irish cases of Ó Grianna v An Bord Pleanála [2014] IEHC 632 and Sweetman v An Bord Pleanála [2023] IEHC 89 . Peart J in Ó Grianna considered (at paragraph 32) that the lack of formulated proposals for the design and route of the connection of a windfarm to the gird did not justify treating phase 1 of a scheme as a stand-alone project, rather it was suggestive of permission being sought prematurely. That the expediencies of assessing the environmental impacts of the construction of a windfarm before the grid connection details were available are not of themselves a reason to justify project splitting was reiterated by Quinn J in Sweetman (at paragraph 151). [54] Senior counsel for the respondents also sought to rely on the decision in C G Fry before both the Court of Appeal of England and Wales ( [2024] EWCA Civ 730 ; at paragraph 91) and the UK Supreme Court (cited above at paragraph [49]) at paragraph 39 as support for the proposition that it was lawful for environmental assessment to be carried out at a later stage. She acknowledged, however, that the relevant passages had been addressing multi-stage consents and comments about the need to avoid sclerosis in the system were made in that context. The considerations in this case are different and the conclusions we have

reached do not conflict with the decision in C G Fry. Adequacy of Reasons [55] We accept, as Senior Counsel for the respondents emphasised in her submissions, that a decision of this sort should not be scrutinised as if it were a conveyancing document. The brevity of the reporter's reasoning would not be a deficiency of itself if it was clear as to why the appellant's objections had been dismissed. However, in addition to the apparent error about "salami slicing" relating to an attempt to circumvent the 2011 Directive as opposed to that being the objective effect of project splitting, paragraph 129 of the decision contains largely assertion and conclusions and is bereft of reasoning directed at the point at issue. It fails the requirement of identifying (correctly) the live issues "and framing the determination in a manner that leaves the reader in no doubt about what the reason for the decision were and what considerations were taken into account" ( West Lothian Council v Scottish Ministers [2023] CSIH 3 ; 2023 SLT 175 , Lord President (Carloway) at paragraph [24]). The irrationality challenge [56] The distinct irrationality challenge advanced by the appellant touched on the aspects of the wider scheme that were taken into account by the reporter. Although the grid connection had not been included in the planning application, the reporter had placed considerable weight on the

wider benefits that would result from the operation of the windfarm once connected to the grid. He also had regard to renewable energy and climate change benefits, which could arise only once the grid connection was in place. Specific reference was made to the predicted generating capacity of the development once operational. In Ashchurch the road bridge that was part of a wider residential development had been the subject of an EIA that did not include the wider development. The Court of Appeal considered that this was irrational, Andrews LJ stating (at paragraph 64) that whilst "it was open to the decision-maker to treat the prospective benefits of the wider development as material factors... it was irrational to do so without taking account of any adverse impact that the envisaged development might have, to the extent that it was possible to do so... The two go hand in hand; you cannot have one without the other." [57] We consider that there is force in the submission that the approach in this case was similarly irrational. The respondents' answer to the point was that the reporter was entitled to assess the proposed development on its own merits and on the assumption that a grid connection would be provided at a later date. That does not, with respect, address the irrationality of addressing only the merits and not the demerits of the anticipated completed development. We

have already addressed the need to evaluate the proposal in a way that is not necessarily limited to the specific terms of the planning application. In any event, the reporter's consideration of the proposed development as a whole, at least in relation to socio-economic and climate change benefits, is illustrative of the potential difficulty in treating the two phases as entirely separate for the purpose of assessing the environmental impacts. Disposal [58] Clearly matters have moved on in this case since the original planning application was considered by Scottish Borders Council. Some progress has been made with identification of a grid connection solution. Having concluded that there were material errors in the reporter's approach, we consider that it would be appropriate for the issue of whether the whole project requires an EIA assessment to be considered of new. We shall quash the decision of 14 January 2025 and remit the interested party's appeal to a different reporter for a fresh decision. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII