Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 93
P1393/10	OPINION OF LORD McEWAN in the Petition of DULCE PACKARD and OTHERS Petitioners; for JUDICIAL REVIEW ________________

Petitioners: J D Campbell, QC et Findlay; DLA Piper Scotland LLP

First Respondents: Duncan; Scottish Government Legal Directorate

Second Respondents: Martin, QC et Burnett; Burness LLP

27 May 2011

[1] For many years now it has been Government policy to encourage the development and use of renewable energy from natural sources. It avoids the dependence on fossil fuels and the proliferation of greenhouse gases and global warming. "Green" energy is a serious matter and much investment has been made to promote it. To that end many "wind farms" have sprung up in Scotland to produce electricity which can then be connected to the National Grid. Some of these have had to be put in areas of natural beauty. One such, Fallago Rig, is the subject of the case before me. Its proposed site is in the Lammermuir Hills in the Borders.

[2] The developer's proposals have been resisted by landowners, residents and other interested groups. There have been two public inquiries costing much time and money. There is voluminous correspondence, and even the proper defence of the realm has played a major part as will be seen.

[3] I look first at the petition and answers to identify the areas that were ultimately argued to me. It is produced as an adjusted Record and I do not need to dwell on it at length since it is reflected in the arguments presented to me and focussed in the pleas-in-law. It seeks judicial review in the form of reduction. The interdicts are a separate matter. Articles 1/4 give the procedure leading to the decision under challenge in Articles 5 and 6 (as amended). The articles relating to bias and natural justice begin at Article 9 and run on to Article 26. The two legal concepts appear to be merged. The ultra vires Articles begin at 34; that relating to condition 35 to 43 and reasons 44 to 51.

[4] As I read the pleadings there is no separate challenge to the reasons in the Minister's decision letter although I heard argument about that. Nor did I understand these to be any challenge to the report of the first Inquiry but Articles 47 and 48 appear to suggest one.

[5] A number of authorities were fully canvassed before me and I list these hereunder, viz:

·       Porter v Magill [2002] 2 AC 357

·       Helow v Secretary of State [2008] 1 (ii) WLR 2416

·       Davidson v Scottish Ministers (No.2) 2005 1 SC (HL) 7

·       Bovis Homes Ltd v New Forest District Council [2002] EWHC 483 (Admin)

·       Ghadami v Harlow District Council [2004] EWHC 1883 (Admin)

·       R (Lewis) v Redcar and Cleveland Borough Council [2009] 1 WLR 83

·       R (Alconbury etc.) v Secretary of State etc. [2003] 2 AC 295

·       Tesco Stores Limited v Highland Council [2011] CSOH 11

·       London and Clydeside Estates Ltd v Secretary of State for Scotland 1987 SLT 459

·       R v Secretary of State ex parte Fayed (unreported) 26 July 2000 Court of Appeal

·       Grampian Regional Council v Secretary of State for Scotland 1984 SC (HL) 58

·       Uprichard v Fife County Council 2000 SCLR 949

·       Edgar Road Property Company LLP v Moray Council and British Land Company plc [2007] CSOH 88

·       R (Redcar etc.) v Secretary of State for B, E and R [2008] EWHC 1847 (Admin)

·       British Railways Board v Secretary of State for the Environment [1993] 3 PLR 125

·       Save Britain's Heritage v No.1 Poultry Ltd [1991] 1 WLR 153

·       Bolton MDC v Secretary of State [1995] 3 PLR 37

·       Westminster Renslade Ltd v Secretary of State (1984) 48 P & CR 255

·       Aberdeenshire Council v Scottish Ministers 2008 SC 485

[6] A number of other cases were mentioned in argument without being gone into either at all or in any detail. These were, viz:

·       R (Condron) v National Assembly for Wales [2007] 2 P & CR 4

·       Co-op Group v Highland Council [2008] CSOH 28

·       McAllister v Scottish Legal Aid Board 2011 SLT 163

·       Gatty v Maclaine 1920 SC 441

·       Armia Ltd v Daejan Developments Ltd 1979 SC (HL) 56

The undernoted textbooks were looked at in various passages, viz:

·       Clyde and Edwards: Judicial Review 2000 ed

·       Wade and Forsyth: Administration Law 10^th ed

[7] In opening for the petitioners Mr Campbell pointed out that a joint minute (No.14 of process) had agreed copy documents. There was a list of those involved, the relevant dates and a map of the area. He drew my attention to the record and made certain deletions which removed the human rights part of the case, viz, Article 6.3, 27, 28 and plea-in-law 2.

[8] The background was an application for the wind farm under section 36(2) of the Electricity Act 1989. Because of the large capacity it needed the consent of the Secretary of State. The structure being above ground required planning permission under section 57 of the Town and Country Planning (Scotland) Act 1997, and if the Secretary of State grants a section 36 consent, that is deemed to be the planning permission. Schedule 8 of the 1989 Act allows and caters for a public inquiry which happened in this case (twice). The duty of the Secretary of State is to consider the report and then make a determination. He may impose conditions. References to the Secretary of State translate, for present purposes, to Scottish Ministers.

[9] Turning to the petition, counsel explained the grounds of challenge to the decision letter of 9 November 2010. The letter was a consent and a deemed grant. He said that he took no issue with the findings of the Reporter (Haywood) at the second inquiry, although his later argument cast doubt on that statement. Interdict he said was not an issue at present due to the undertakings given to the Lord Ordinary on 22 December 2010. The order sought was reduction on five discrete grounds, viz: natural justice, bias, ultra vires, unlawful conditions and inadequate reasons. The main thrust of his argument was bias. At the end of the submission it was not wholly clear to me that two of these were still in issue. Counsel then said that there was a material difference between a predisposition by a Minister to his own policies and a predetermination of an application made under these policies. It was quite lawful for elected representatives to be predisposed to renewable energy but they should not predetermine an application which fits the policy without considering any objections; and they had to act judicially. In this case, following the first inquiry, the Ministers made up their minds to do everything in their power to bring about conditions where consent could be granted. The decision-taker civil servants had had covert conversations with the applicants and the Ministry of Defence (MOD) who were the main objectors. Their efforts were successful since the MOD withdrew their objection and consent was granted.

[10] This showed bias, actual or perceived. Mr Campbell looked in some detail at Porter (I will refer to all the cases in shorthand form listing them fully elsewhere in this opinion). He referred to various passages and in particular paragraph 103. The test was whether a fair minded observer, considering the facts, would think there was a real possibility of bias. Next was Helow where the allegation was made against a Court of Session judge. In Davidson bias was found against a judge based on events when he was a politician. He next referred me to Bovis, where bias was found against a committee and Ghadami where the words and behaviour of the chairman of a planning committee amounted to bias.

[11] Mr Campbell then moved to a detailed examination of the many productions in the case. Most of these are contained in No.6 of process. He told me that at the first inquiry there were objections and in particular from the MOD, who led witnesses on technical matters to do with radar. The inquiry ended on 22 February 2008, having lasted for nine days. The report was given to Ministers in August. It was not published then. It recommended refusal due solely to the MOD objections on national defence grounds. The radar problem counsel summarised in this way. In the airspace up to 5,000 feet above the turbines of a wind farm a plane is invisible to radar. It is "dead airspace". The wind farm "clutters" the radar screen with a snow-like effect. The radar cannot distinguish the clutter from a plane. The area is near to the nuclear power station at Torness. Clearly any hostile aircraft invisible to radar in such an area poses a threat to national security and any undetectable attack on such a facility could be catastrophic locally and nationally.

[12] The correspondence was like a jigsaw with many pieces, but only three days after the inquiry ended, the applicants began the "seduction" of the Scottish Ministers. Here it is not helpful to detail every document, as I shall do that later. However, what was said amounted to this. There was an early invitation by the developers to Mr Alex Salmond, the First Minister. By July they were speaking to Mr John Swinney MSP and Mr Rifkind MP was involved. Discussion on the matter continued over the summer and by September it was clear that some new matters had arisen in the radar context. The problem was that not all interested parties knew this. By October the civil servants were writing to the MOD seeking a meeting. It was clear from all of that that the officials were going back to the main objectors seeking from them information to help them make a different decision. All of this was encouraged by the developer. As the year went on it was plain that the MOD wanted to find a way forward and were hopeful of a resolution. It got to the stage of proposing a meeting at the start of the New Year (2009) and that took place later in London. This led to the examination of a new solution by integrating radar and by the time of the next inquiry, over a year later, radar was the central issue, although some other issues were examined. By February "conditions" were being discussed and what the correspondence showed was that there had been a change of policy, but it was ultra vires to re-open an inquiry due to a change of the policy. What should have happened was the Ministers should have followed the Reporter, refused the application and given reasons. The developer, if so advised, could present a new application.

[13] However, as the months went on, it was clear the objector and the decision-taker were discussing various tests and what conditions could be imposed. In fact the MOD only had the expertise to devise any acceptable scheme. By April Mr Kelly was in dispute with the civil servants about the invocation of Rule 21. By May it was clear that there were to be heads of agreement to be discussed at a meeting in June and by 1 July the MOD had written to withdraw their objection, but subject to conditions.

[14] All of this had happened without other interested parties being consulted or involved. The conditions were, in any event, vague and unenforceable. On 15 July this was presented to parties as a Rule 21 reason for re-opening the inquiry. In fact it was not new evidence. It did however lead to the re-opening of the inquiry (counsel at this stage appeared to depart from his ultra vires argument). The inquiry was re-opened on 22 September and the same Reporter appointed on 12 November 2009. All matters were looked into. However the documents showed that before all of this the Minister's civil servants had discussed specific things with the objectors and the developers to encourage a solution and promote their own policy. There was no new evidence at September 2008 and no hint of any study. There should have been a cut-off date for any further submission otherwise expectations would be dashed.

[15] The conditions, if any, had to be guided by the use of the circular 4/1998. However, here the condition imposed did not meet all the tests in the circular. They were wholly inspecific and to use the phrase "appropriate measures" showed how difficult it would be to enforce it. The developers could not in any case bring it about themselves. That meant that the condition was ultra vires.

[16] As to the reasons for the decision, the Ministers had simply accepted the second report. However that report had failed fairly to balance the evidence especially where there was an adverse impact. There had been no attempt to analyse matters by reference to the numbers of masts, the electrical contribution or how long the facility would last. The various reports on renewable energy were not analysed. There was a failure to deal with the Scottish Natural Heritage objection. That material omission vitiated the decision. Counsel referred me to R (Lewis) v Redcar etc. and mentioned in passing R (Condron) v National Assembly for Wales. He asked me to direct a reconsideration and to sustain his pleas 1, 1A, 3, 4 and 5. Interdict did not arise at this stage. When Mr Campbell came to make his reply speech to the others he lodged, against objection, a written submission. I shall deal with this later. Next came the submission for the Scottish Ministers. Mr Duncan moved me to sustain his pleas 1 to 5, 7 and 8.

[17] He opened by discussing bias and natural justice. The petition raised a number of themes based only on events after the first inquiry. The second inquiry cured any natural justice problem and the petitioners had to accept that new evidence under Rule 21(4) did come before Ministers. The new evidence was disclosed, there was an inquiry, then a decision. The exercise the Ministers were conducting was in the realm of administrative law not a judicial function. They had to act in the public interest and on the best advice. There was nothing wrong with having a predisposition to policies provided they acted fairly. There was a presumption that they would perform their statutory duties properly. Counsel referred me to Alconbury in various passages and to Wade and Forsyth (10^th ed at 246/7). The burden of proof lay on the petitioners. There was a difference between a predisposition, which was all right and a predetermination, which was not. The bias test in Porter could not simply be transplanted into administrative law. Porter was a quasi judicial act as was Helow. The importance of appearance is much less in an administrative decision. The hypothetical observer had to be fair-minded and informed. Here the document showed that the officials took care to follow the proper procedure.

[18] Counsel referred me to the Redcar case at various passages in the opinions of all the judges in the Court of Appeal, and the rigorous test for bias in administrative law. Next he referred to the Tesco Stores case which he said had similarities to the present one. Even if there was a taint or a "stray remark" in one of the many e-mails it was of no substance and the strength of other factors overcame it. To reduce the decision letter would produce no result and there could be no way forward for a perfectly legal and acceptable UK-wide policy. Only further cost and delay would be achieved and to send it to a different Minister would be a hollow formality. He referred me to Fayed and to London and Clydeside Estates. In any event the petitioners had wanted a second inquiry and this cured everything.

[19] The further evidence here was properly obtained and that fact did not show any predetermination. He referred me to Ghadami and Alconbury. Rule 21(4) allowed a Minister to go against a reporter. Here the policy issue in 2010 was a statutory obligation to seek and use renewable energy (Climate Change (Scotland) Act 2009). He referred me to the Scottish Planning Policy Statement (No.7/1 of process) at paragraph 41. The consultation paper on that was 7/2 and the memorandum of understanding 6/9. The Government's renewable action plan was 7A/6 and dealt with on-shore wind farms.

[20] All of these came into existence after the first inquiry and that was the framework in which the Ministers took the decision. Mr Duncan then dealt with at length and in detail a very full selection of the correspondence and documents which had arisen since the end of the first inquiry in 2008, until the convening of the second two years later. Without intending any disrespect to his analysis, I do not intend to repeat it here in full since I will have to deal with it later. I shall content myself here with a very brief summary of what he said.

[21] It could not be said that early letters or meetings were trying to curry favour with the First Minister or Mr Swinney. Clearly mitigation schemes had moved on where radar was concerned. There had been in the interim, consents in England. The whole tone of the document showed that Ministers and civil servants were being very careful about the new information and there were no unfortunate remarks showing any predetermination. As much time was given as was needed and in the end of the day the petitioners were as keen as others to re-open the inquiry. The appearance of draft heads of agreement vindicated the decision to allow it and no views on the merits were ever expressed.

[22] Counsel then moved to consider the conditions relating to radar. All that was required were "appropriate" conditions and there was nothing against using negative conditions. He referred me to the Grampian Regional Council case out of which has grown the expression "Grampian" conditions. It was said here that the conditions were complex. It was the Minister's decision as to what was appropriate and conditions which leave details to be worked out are not per se invalid. It might be different if they had no ascertainable meaning. It had to be presumed that the Minister had had regard to circular 4/1998 and the document PAN 45. The conditions were specific and clear and deliverable within a reasonable time. Counsel then examined the conditions in detail and pointed out that the Reporter had found no fault with them. It was perfectly proper for the MOD to accept the small risk of the conditions not working. Finally, Mr Duncan dealt with the reasons. This criticism was laid at the Reporter and alleged she had not balanced visual impact against the benefits of renewable energy; not taken proper account of where sites should be and failed to deal with the Scottish Natural Heritage's objection. However, he said, proper examination of the second report and the cross-references to the first report, showed that these criticisms were unfounded. The many findings in the two careful reports showed that all matters had been considered. Counsel looked at the detail of this and I will return later to deal with it.

[23] Mr Martin then spoke for the developers and adopted the submissions for the Ministers on bias. He then asked the question what was to be done if the Minister's decision was to be reduced and the petition was successful?

[24] Both reports would remain. There had been no challenge to the holding of the second inquiry or any attempt to stop it. Indeed the petitioners had asked for the second inquiry and had participated fully in it. The Minister's letter on 4 August 2008 and the parliamentary answers on 11 June and 5 August 2009, had not been criticised; nor could they. They clearly showed an open-minded decision-taker acting properly. There were many remedies which could have been used long ago and it was now far too late to complain.

[25] As to the correspondence, Mr Martin adopted Mr Duncan's position. The MOD could not be criticised for speaking to the developers and coming to an agreement. Equally Rule 21 expressly provides for Ministers disagreeing with the reporters and then a set of procedures to be followed. That was done, so could never be a breach of natural justice. There had been no failure to comply with Rule 21. It could never be argued that what emerged in the autumn of 2008 was not new evidence. He looked at the Rule in detail.

[26] Rule 21 of the Town and County Planning (Inquiries Procedure) (Scotland) Rules 1997 provides inter alia:

"...

(4) When the Secretary of State -

(a) differs from the reporter on a finding of fact; or

(b) after the close of the inquiry proposes to take into consideration any new evidence (including expert-opinion on a matter of fact) or any new issue of fact (not being a matter of government policy) which was not raised at the inquiry,

and by reason thereof is disposed to disagree with a recommendation made by the reporter, he shall not come to a decision which is at variance with any such recommendation without first notifying the applicant, the planning authority and all statutory parties who appeared at the inquiry of his disagreement and the reasons for it and affording them an opportunity of -

(i) making representation ...; or

(ii) ..., asking ... for the reopening of the inquiry ...".

The Electricity Act 1989, section 36, provides inter alia:

"...

(5) Consent under this Section -

(a) may include such conditions (...) as appear to the Secretary of State to be appropriate ...".

[27] The petitioners had not said that Rule 21 was not complied with or that the Minuter took account of any matters not known to them. Counsel then looked at a series of documents from the summer of 2008 onwards. I shall have to look at these separately later but for now will summarise what was said. It was clear by September that English windfarm consents with radar implications was pertinent information and indeed were obviously new facts. There was nothing to say you would not consider new information and there was no time limit for doing so before involving Rule 21. When the Petitioners became aware of what was happening they asked as early as February 2009 to reconvene the inquiry. Mr Kelly who was their spokesman at all times was acting with the benefit of legal advice, and by the summer other objectors were in unison in wanting a second inquiry. By October, however, Mr Kelly had changed tack and was now threatening judicial review, claiming that Rule 21 did not apply. In spite of an ultimatum the threat never materialised and the same reporter was re-appointed with the same terms of reference. The threat of a judicial review was an empty threat and in any it would never have succeeded.

[28] Counsel then turned to his plea of mora, linking it to what he had just said. He referred me to various passages in Clyde and Edwards and to the case of Uprichard. In that case which concerned a hotel, houses and a golf course the delay was 19 weeks. In the present case it was clear in 2009 that the Petitioners had the advice of senior counsel. The developer had acted in reliance of the fact that they did not challenge the second inquiry and what is more took an active part in it. This all resulted in expense and effort to all parties and the reporter. In effect the Petitioners sought the very thing they now seek to quash. Now it was far too late to seek judicial review. Counsel referred me, by way of example only, to the case of Edgar Road, Co-op Group, McAllister and the English authority of Redcar. Counsel accepted that the rules in England were different. The second plea should be sustained. It would also be extraordinary if the Petitioners had any title to sue. They took part in the inquiry. They asked for a decision. The decision maker allowed them to appear. They had no title now to have it reduced. They were all aware of all matters when they went into the second inquiry.

[29] Mr Martin adopted Mr Duncan's argument on conditions. Suspensive or "Grampian" conditions as they have become known are often used. He referred me to the British Railways Board case and various places in the Opinion of Lord Keith. Also, said counsel, if the specific advice in PAN 45 was followed it is likely that circular 4/1998 will also be satisfied. He drew my attention to an example of conditions in the Clyde windfarm case where civilian radar was involved. He went into some detail about what was said about radar condition to the reporter at the second inquiry; and what the findings of the reporter were. The criticisms made were not justified and the conditions could be said to have produced an acceptable "air picture".

[30] Nor was there any merit in the alleged failure of the Reporter to give proper reasons and in particular the complaint about Mr Steele was incorrect. The matter was not to be judged as if it were an examination board question. He referred me to a series of cases on the point viz Save Britain's Heritage v No 1 Poultry, Bolton MDC; Westminster and the Aberdeenshire Council cases. The reporter in the present case had to balance the benefits of renewable energy against cumulative landscape development. Her findings clearly show that she had addressed that matter.

[31] Further on the issue of landscape impact she had very carefully analysed what windfarms needed to be taken account of for a cumulative assessment. She looked at and named consents, applications and what was constructed. She was correct not to take account of matters at the "scoping" stage. Her arithmetical totals were accurate. Scottish Natural Heritage had a written submission and she dealt fully with it and made a number of findings. She went on site to check, look at and assess all these matters and then explain what she had done and what was her view. She was perfectly entitled to assess with her own eyes what was the visual impact. (Counsel again stressed the Opinion of Forbes J. in the Westminster case where he quoted Lord Denning.) Thus she had made a proper balance between adverse impacts and "Green" interests. When the Minister accepted her report and reasons that decision could not be challenged. He asked me to sustain his plea 1 to 10, number 1 being couched as a "refusal".

[32] When he came to reply Mr Campbell began by lodging for the first time a written submission. It is 24 pages long and contains 153 paragraphs. The other interested parties objected to its reception at the end of the fifth day of the hearing. I decided to allow it to be received and only parts of it were properly focussed before me.

[33] I now summarise what counsel had to say. A complaint was made that the Minister had not made the decision on the second inquiry since the letter had been signed by a civil servant. The whole matter was in fact quasi judicial and not administrative. The civil servants had been facilitating the conversations between the developers and the objectors. That showed an intention to decide the matter in a certain way. The other objectors had no chance to join in this three way conversation. If the mind of the Minister was made up then the second inquiry would not cure that. It was a charade. After the second inquiry submissions were sent direct to the Minister. The petitioners had no option but to take part in the second inquiry since they did not know what the evidence was going to be. At that inquiry the petitioners complained of predetermination. By then they were aware of the dialogue which had been covert, exclusive and secret.

[34] If the decision was reduced there were a number of ways the matter could be progressed. The range of choices was in paragraph 78 of the written submissions. In any event it was not for the Court to think up an answer. A third inquiry might be required.

[35] The Radar Mitigation conditions were meaningless. How could the system at Leuchars be integrated with Brizley Wood. The Minister would never know. At the second inquiry in spite of what was said Radar was "the only show in town". Counsel repeated his earlier criticism of the Reporter. She had simply not said enough in her decision at paragraph 6.107. Setting out the evidence was not reasoning.

[36] As to delay that was only a few weeks. The second inquiry could never have been stopped.

[37] Mr Duncan made a brief response the main point of which was to re emphasise that Redcar had cautioned about the test that Porter stated in this area of law. The petitioners had all the evidence under freedom of information in May and June 2009 a long time before the second inquiry.

[38] Mr Martin also replied. He said the new written submissions did not deal with Rule 21. The Minister's department was entitled privately to come to a view in the context of Rule 21 - Mr Kelly's long letter in October 2009 showed he had all the information to threaten a judicial review. None of this was anywhere close to the second inquiry. The Ministers responded to and agreed with most of what Mr Kelly wanted. There was no evidence that Mr Mather was in any way tainted.

[39] I want now to look in detail at the documents. Of course not every e-mail letter and document was referred to by counsel, nor need it be by me. Many of these were recovered under Freedom of Information legislation, although many are redacted, they are easy to follow.

[40] After the inquiry ended in February 2008, Mr Wilkins of the developers wrote on 25^th to Mr Mather, who was the Minister for inter alia Energy. The letter is critical of the MOD, its evidence to the inquiry and its whole attitude. Wilkins had obviously met the Minister at a conference and talked about the matter. That letter was sent to David Wilson and Jane Morgan (tabs 4 and 5). The responsible civil servant (Mr Henderson) replied on 27 March and said the letter from Wilkins would be before the Minister once the Reporter had reported (tab 7). In April the Duke of Roxburghe invited the First Minister (Mr Salmond) to open a biomass boiler (letter 9 April, tab 8). That invitation was fulfilled by Mr John Swinney on 2 July and the Duke thanked him by letter on 3^rd (tab 10). The letter does indicate that some general discussion took place about wind farms, radar and the MOD. Five days later (tab 11) Mr Wilkins wrote to Mr Swinney again discussing the matter in some detail and criticising the MOD. On 4 August Mr Mather responded (tab 12) and in effect said he could not comment in advance of the report. A letter in similar terms was sent to the Duke on 11^th (tab 13). By August the first report was with the Scottish Ministers but was not made public. That did not happen until November.

[41] Tab 14 contains some 50 pages of documents. On 12 September Mr Shaw of the developers wrote to the Scottish Government (Mr Imrie). He enclosed letters, other wind farm consents, MOD withdrawal of an objection made to another site and other documents about Fallago Rig including their closing submissions. From what was sent it would appear that Mr Rifkind was urging the developers' case with Mr Des Brown, who was the Secretary of State for Defence. The matter was being discussed among some members of Parliament and Mr Wilkins was writing to Mr Rifkind. It also appears from these papers that Mr Swinney was given a document of the developers called "A Brief Note on Issues of Air Radar Defence". It is also not in dispute that at 19 September the Scottish Government met the MOD. By 22 September the e-mails make it clear that further evidence may be coming. The Scottish Government's solicitor Mr MacLeod wrote that the parties to the inquiry would have to be given the opportunity to make representations (tab 15). On 23 September the civil servants made a written submission to the Ministers (tab 16). Debbie MacCall's letter discloses that the Ministers had the report, but that with English consents and the use of conditions, a resolution to the radar issue at Fallago was closer than had been apparent at the inquiry. She makes it clear that all parties would have to be consulted. The draft undated letter in annex A shows that Ministers must have all the current facts before making a decision. That letter was sent to the MOD and the developers on 6 October (see example tab 18). On 7^th Mr Shaw of the developers e-mailed Julian Chafer of the MOD to see if there was a way forward. The e-mail on 27^th from the civil servant (Lesley MacNeill) to Mr Wilkins shows that new information would not lead to a quick decision since all other interested parties would have to be allowed to make representations. Between that date and December the correspondence shows that more time would be needed, but Mr Chafer's letter to the Scottish Government on 18 November showed that there was indeed new information. The documents in tab 24 make this clear. Also the November meeting of these parties was rescheduled for January 2009.

[42] The January meeting took place (see tab 26) and proved useful (tab 27). There was a meeting in London the following month. Morton Fraser's letter of 5 February shows that draft heads of terms were nearly ready for discussion.

[43] By February Mr Kelly for the petitioners was in touch with the Ministers.

[44] In February 2009 Mr Kelly sent e-mails on the subject. It is clear from them that he knew the MOD and the developers had been in contact. He was also acting on legal advice. On 6 February his e-mail shows that he has been in touch with the MOD and discussed it with senior counsel. It does not suggest predetermination but does say that he might want a new inquiry. On 11 February he wrote to the Scottish Government and asked if they had been speaking to the MOD. If they had, he wanted the inquiry re-opened. His complaint is of a breach of natural justice. By 16 February the tenor of his e-mail was a request to re-open the inquiry.

[45] By 13 February (tab 27 - letter from developers) it is clear that detailed conditions were at least in draft. On 17 February the Scottish Government wrote to the MOD to tell them of the renewed interest of the community objectors who would want the inquiry re-opened. The e-mail reply from the MOD showed that the meetings had resulted in progress and one week later the heads of agreement were in draft. The preamble to that narrated that the MOD would withdraw its objection.

[46] On 11 March 2009 (tab 29) there is an important e-mail from Mr Steele of the Scottish Government to the MOD. In it he shows awareness of the six planning principles and his attitude to the use of suspensive conditions contains these words "We should ... be able to demonstrate now, that the agreed radar solution would result in the developer being able to realise the project within a reasonable timescale ...". By 2 April (tab 30) the civil servants told the developers that the MOD would soon remove their objection. On 15 May a meeting took place in Glasgow, the only meeting between the developers and the MOD at which the Scottish Government was present. On 1 July the MOD formally withdrew its objection (tab 31). It sets out a radar mitigation scheme. The signed copy is tab 32. The draft letter which was to be sent to the interested parties is tab 33. It is dated 15 July. It mentions the new evidence and encloses it, viz, the MOD withdrawal letter and enclosure. The letter specifically invokes Rule 21(4). It gave the choice of making representations or requesting the re-opening of the inquiry. All the petitioners sought to re-open it.

[47] The letter of 18 October from Mr Kelly is very important (No 7A/12 of Process). It is written on behalf of a number of objectors (at least seven) challenging the decision in October to re-open the inquiry and threatening judicial review and interdict.

[48] It rehearsed the calendar of the first inquiry, the radar evidence and a recovery of documents showing that Mr Kelly was aware that the reporter had recommended refusal on the grounds of radar. It also showed that they knew that the challenge on visual impact and other grounds had failed. It further shows an awareness of contact subsequently between the objectors and the Scottish Government. On page 3 paragraph 3 it suggests an appearance of bias. It shows an awareness that the MOD had withdrawn its objection on the basis of certain evidence disclosed to the objectors. There is then reference to a restricted Minute of Appointment and (page 4) a challenge to the application of Rule 21(4). There is then a challenge to there being any solution to the radar problem. The letter goes on to seek a wider ambit to the new inquiry and release of the first Report. It threatens judicial review of the new inquiry decision. The letter of 12 November (tab 37) makes it clear that the second inquiry was not just confined to the radar issues. The Reporter's minutes of appointment make that clear (tabs 36 and 38).

[49] In 2010 the second inquiry was held between April 13 to 22. The report was on 5 August and the decision on 9 November.

[50] I want now to look at some of the authorities in more detail. I begin with Porter v Magill. The facts of the case arose out of the sale of council houses in London in marginal wards against legal advice in order to obtain an electoral advantage (gerrymandering). The Labour opposition objected to the auditor who investigated and who had a hearing, and ultimately certified a large loss. The auditor refused to disqualify himself and made a statement on television. Before the court there was much discussion over what was the proper test and the test was settled by Lord Hope in these terms:

"Whether the fair-minded and informed observer having considered the facts would conclude there was a real possibility that the Tribunal was biased."

There had been a lot of public interest in the matter and a statement of the progress he was making was not inappropriate. What, however, he did wrong was to hold a press conference and state his provisional view as to culpability. There was a risk of unfair press reporting and it was said by the court that a fair-minded observer would have thought the press conference was to attract publicity to himself and it was an exercise in self-promotion which he should not have undertaken. The court, however, concluded that it was quite another matter to say from that exercise that there was a real possibility that he was biased. Nothing in the words he used would indicate that there was a real possibility he was biased, looked at objectively. Bias, accordingly, was not shown to have taken place. The case decided a number of other issues, which are not pertinent for this case. The next case is Helow. That related to a refusal of an asylum application of a Palestinian refugee by a Jewish judge. It was therefore a judicial matter and the court had little difficulty in concluding that there was no real possibility of bias on the very thin evidence presented to it. It was observed in that case that the fair-minded and informed observer was a creature of fiction and has attributes which many of us might struggle to attain to. In my view this shows that it is often a difficult test to satisfy whether the area of law is strictly judicial behaviour or administrative behaviour. Next are two cases which really relate to behaviour by officials. The first is Bovis Homes Ltd v New Forest District Council. That related to the designation by the district council of certain land as being in a heritage area. There was alleged bias by the chairman of the planning committee. The whole matter had been undertaken against the recommendation of a local planning inspector. The chairman was a member of a group favouring the Council's position. The judge found a number of reasons (pages 116 - 123) why the Council, which had included new members, had not approached the decision with an open mind. First of all they had disagreed with two inspectors and distorted their views; secondly, they had rejected the advice of their own officials; and, thirdly, one councillor had prepared a refusal before a site visit had even taken place. He had gone to the length of preserving the decision on acetate. Bias was found in that case. Another case, which is really only an example, is Ghadami. That related to the redevelopment of Harlow town centre with a shopping provision. The proposal affected Mr Ghadami's premises. The case discloses that there had been a difficult and stormy discussion before the planning committee such that the police had to be called. The chairman refused to withdraw. It appeared later that he had discussed matters with Ghadami and eventually by a bare majority, permission for the development was granted. Mr Ghadami's premises were in the way of the development. He wanted compensation of £15 million. The chairman however threatened him with a compulsory purchase order. The court found from certain remarks that the chairman had made and his behaviour that his mind was closed, and that the fair-minded and informed observer would conclude that he was biased. The next two cases are ones concerning remarks made. In R v Secretary of State for the Home Department ex parte Al-Fayed an interesting issue of bias real or perceived arose. The appellant had a considerable history of litigation and this case concerned his application to become a British citizen. Part of the background was of the allegation of paying MPs (cash for questions). A Sunday newspaper carried an article saying that the Home Secretary (Mr Jack Straw) had told friends "I just don't see how he can have citizenship if he paid MPs". When the issue was raised the Home Secretary said he had no memory of saying it. The report was hearsay and the newspaper would not reveal its source. There was a complication concerning waiver.

[51] The issue was whether the remark constituted bias in the sense that the Home Secretary would decide the case with a mind that was predetermined and closed. Even assuming he had made the remark, the unanimous view of the court of appeal was that the remark did not disclose bias, actual or perceived. The words were no more than an expression of a preliminary view (paragraph 61). At paragraph 48 Lord Justice Nourse said:

"An allegation that a Minister of the Crown has prejudged or appeared to prejudge an application made to him in a quasi judicial capacity is a grave one to make. It will not be upheld unless there is evidence of a corresponding gravity to support it."

[52] In the case of Tesco Stores, Tesco had obtained permission for a store and filling station in the town centre at Tain. Two years later their competitor Asda obtained a similar permission for an out of town centre. Inter alia it was alleged that at the voting three councillors were motivated by a desire to stop or undermine the Tesco development. Like all cases it is fact specific and in refusing to review the decision the Lord Ordinary inter alia found that there were sound planning reasons for the decision. It had been alleged that one of the members voting had said "There were too many Tescos and not enough Asdas in the Highlands". The Lord Ordinary considered that it would be unreal and disproportionate to strike down the decision because of such a stray or irrelevant or prejudicial remark.

[53] To similar effect is R (Condron) v National Assembly for Wales concerning an open-cast mine near a school in Merthyr Tydfil. The chairman of the relevant planning decision committee was alleged to have said to an objector that he was "going to go with the inspector's report". The court, in judging the bias test, said that they had to look at all the circumstances, not just the facts known to the objector or available to the hypothetical observer at the time of the decision. The committee had been trained and agreed to be bound by a code of conduct. In effect the casual remark was ignored.

[54] In London and Clydeside Estates v The Secretary of State for Scotland, an Outer House decision, what happened was this. The developers (Hermiston) had applied for outline planning for houses which was refused. They appealed and an objector (a Mr Clark) objected. At that time the local Member of Parliament was Mr Rifkind. He wrote a letter supporting Mr Clark to the Secretary of State at the time (Mr George Younger). The Secretary of State refused the application. Three years later the present pursuers sought permission for the same area and by then Mr Rifkind was the Secretary of State for Scotland. The application was called in and a reporter was appointed. The pursuers sought judicial review to quash that decision and the appointment on the basis that the Secretary of State was not impartial. The Lord Ordinary, Lord Davidson, held that Mr Rifkind was not disqualified from dealing with the matter. There were issues of fact and policy and it was not wrong to express public support for a policy. The second application was for a smaller site and the evidence at the new inquiry would differ. The Lord Ordinary said: "It would require such a degree of intransigence and intemperance as to betray a mind not only closed against reasoned arguments but unable to weigh up true facts in a fair way". He did not find that in the facts before him.

[55] A different example is seen in Davidson v Scottish Ministers (No.2), a case concerning the conditions of detention of a prisoner. The problem was that one of the judges hearing the case when he had been Lord Advocate had made a statement about the effect of certain legislation. The court found that as he had committed himself to a view of the legislation which the Extra Division were considering, he displayed a degree of bias and should not have sat on the case.

[56] I want to look now at cases dealing with conditions. In Grampian Regional Council v The Secretary of State the application was for a change of use from agricultural to industrial land. The reporter found only one obstacle which was a traffic danger and would have granted permission subject to a condition that a road be closed. The procedure to initiate that could be done by the applicant. The development was otherwise desirable in the public interest. It was held competent to attach to the grant of permission a condition that the development could not start until such time as the road had been closed. In other words, the Court sanctioned a negative condition but one capable of being enforced. The reasonableness of any such condition has to be considered in the light of the circumstances of the case. In British Railways Board the company wanted planning permission to develop an old marshalling yard for inter alia housing. To get access to that a road would have to made over adjacent land belonging to the local authority. That council refused to provide the land or enter any agreement to allow the road. As a result planning permission was refused. A condition had an agreement over the road having no reasonable prospect of being fulfilled. The House of Lords held that the existence of difficulties over a condition even if apparently insuperable need not necessarily lead to a refusal of planning for what was otherwise a desirable development. As Lord Keith put it (133F-G) there was no "absolute rule". There is no necessary implication that a condition is unreasonable and invalid if it does not have a reasonable prospect of being brought about.

[57] Let me now look at some of the cases dealing with delay and I turn first to Uprichard. The facts arose out of the building of a luxury hotel and golf course at St Andrews. It is clear from the Opinion of the Lord Ordinary that there were a number of possible flaws in the planning decision but the ratio of the case concerned mora. After the planning grant the developers spent over £1 million on the work before the petition was presented some nineteen weeks later. In sustaining the plea of mora the Lord Ordinary held that to allow such a late challenge would have a disruptive effect on the good administration of planning controls. The development would have to stop pending further consideration and a possible grant in different terms or a refusal, and then an issue over a partly built development. There would be obvious prejudice to the developer and their employees. In the Edgar Road v Moray County Council case there was a delay of nine months. That, coupled with one retailer incurring expense was sufficient for the plea of mora to be upheld. On the other hand, in the Co-operative case a delay of three months was held not to be excessive. I do not think the case of McAllister is of much assistance. It is special in its facts and the delay was three years in an ongoing criminal process. Finally, there is the Redcar and Cleveland case relating to an offshore wind farm in the mouth of the River Tees. There was a period of almost three months delay in that case but the delay alone was not enough to refuse permission. Permission was refused on other grounds not pertinent for present purposes.

[58] I want to look now at a case dealing with bias in the administrative law context. It is the well known case of Alconbury. The case was a complex matter involving three different planning applications in three different areas of England, all of which were called in by the Secretary of State and the issue was whether he could be impartial since he was deciding policy. For example, in the Alconbury case the land was an airfield owned by the Ministry of Defence and the case raised issues as to whether the Minister had to have an open mind at all times, issues of whether policy was in any way for the Courts and issues of what was meant by the public interest. I wish to use two particular quotations from this case which I now set out. At page 339 Lord Hoffman said this:

"It is the business of the Secretary of State ... to develop national planning policies ... these policies ... are intended to be applied to actual cases. It would be absurd for the Secretary of State in arriving at a decision in a particular case to ignore his policies and start with a completely open mind."

Later on in the case Lord Clyde, at paragraph 141 said that there was nothing wrong with the Minister seeking elucidation on matters raised by the case he was considering and two paragraphs earlier he quoted with approval the words of Lord Greene MR in B Johnson & Co (Builders) Ltd v Minister of Health [1947] 2 All ER 395 at 399 to this effect:

"... That decision must be an administrative decision, because it is not to be based purely on the view that he formed of the objections, vis a vis the desires of the local authority, but is to be guided by his view as to the policies which in the circumstances he ought to pursue ..."

This case in my view makes it clear that the public interest is always present in cases where administration is in issue.

[59] There is a good illustration of all of this in the Lewis case in 2009. That concerned leisure and housing development in the council area of Redcar and Cleveland. Part of the local plan showed this but opinion was divided. Having taken advice the majority Labour group decided that the planning decision could be taken before election day when it was anticipated there would be a change of political colour. The leader of the then minority group was opposed to it, however the meeting went ahead and the reports were discussed. All seven of the majority groups voted for, as did two of the minority. The development agreement was signed two days before the election. At the election political control changed to the Liberals and Conservatives but the new majority group went ahead and the issue before the Court of Appeal was had there been bias, predetermination and closed minds by the former majority Labour group. The Court decided that this was not a quasi judicial matter. The decision was taken by democratically elected unaccountable people who were entitled to be predisposed to their political views and policies provided they had regard to all material considerations and gave fair consideration to relevant points raised with them. The test of predetermination was had they made the decisions with closed minds or did the circumstances give rise to a real risk of closed minds that the decision in the public interest ought not to be upheld. These matters can be inferred from circumstances of evidence but neither the imminence of the elections or the unanimity of the majority group demonstrated that those voting in favour had closed minds to the merits. At paragraph 62 the Court said the tests are very different from one to be applied in a judicial or quasi judicial position. The Court had to put itself in the position of the fair minded and informed observer in making its own assessment of the real possibility of predetermination. The Court, with its expertise, had to decide if there was a real risk that minds were closed. I further take from this case that persons elected are entitled to have political views and policies on planning issues and that applies both to councillors and to ministers. In an administrative context appearance is of more limited importance than it would be in a judicial context. It is also important to remember that in this case no complaint was made as to the merits of the planning decision. The complaint was really one about timing. Also, the Court made it clear that the test of apparent bias relating to predetermination is an extremely difficult test to satisfy (see paragraph 109) and that case came nowhere near to satisfying the test. I shall refer to this case again.

[59] I want now to look at some cases dealing with reasons. In Save Britain's Heritage the developers proposed the demolition of a number of listed buildings in the Bank conservation area in London and their replacement with one new building. The listed buildings were capable of continued economic use and the policy was to preserve them. After an inquiry the Minister overrode his policy and granted consent. An interested objector sought to have this quashed inter alia on the grounds that he had given insufficient reasons. The inquiry inspector's reasons in his report were described as "meticulous and exemplary". The Secretary of State had adopted his reasons. He had not given undisclosed reasons of his own. While it might have been better expressed it did not have to pass the standard of an exam board if it was proper, intelligible and adequate which it was held to be.

[60] In the Bolton case the matter concerned the Trafford Centre near Manchester. Over six years there had been two inquiries and many post inquiry representations to the Minister whose decision letter had granted the permission. In the period there had been changes of view and policy about shopping centres, other high amenity sites and particular traffic solutions. The ultimate challenge was made upon alleged inadequate reasons on two issues. It was held that while he had to have regard to every material consideration he need not mention them all (page 42 and 43 C-D). There had to be sufficient detail on the principal important controversial issues and in this case the reasons were upheld in spite of some things not being mentioned and some other things being criticised by being called "brief", "poorly expressed", "tack on uneasily" and "better if he had mentioned". In the Westminster Renslade case, although the inspector was found to have erred in relation to car parking issues the Judge upheld him where he had given subjective judgment on a technical matter outwith his qualifications. The case concerned a major development at Feltham railway station in Hounslow. There were to be redevelopments to the station, offices, car parks, interchanges, bridges, parks and even a rifle range! The inspector at the inquiry found against the proposals due to excessive office provisions, the bridges, parking and a traffic interchange. The Secretary of State simply "accepted the opinions of the inspector". Mr Justice Forbes referred to Lord Denning in an earlier case where he pointed out the need for common sense in the approach to reports of inspectors. An experienced inspector was entitled to make a value judgment and the Court was not composed of planning experts. A report should not be subjected for analytical scrutiny and "... (in) a long and careful report, grappling with a host of evidence and argument that took some seven days to hear, ... it would be wrong to pick out an odd phrase that perhaps (was) not as happily expressed as it might be ...".

[61] The Aberdeenshire Council case after an inquiry a reporter had granted planning permission for houses. On appeal his decision was quashed for a number of reasons. It was however made clear that a reasoning process is not a philosophical exercise requiring consideration of every issue raised by the parties. If the reasons are intelligible and adequate they can be expressed concisely. Only the "key" or "determining" issues have to be identified.

[62] Mindful of all the authorities what then is the test for bias which I have to apply in the case before me. In Porter Lord Hope's precise test was (para 103) "... whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that ..." (the decision taker) "... was biased". The standpoint of the complainer is important but only if their fears can be objectively justified. In one short paragraph Lord Hope concluded that looked at objectively bias had not been shown.

[63] How then does this work for someone taking a decision in a planning matter where the decision is administrative and has a basis in political policies. The best guidance is the Lewis case (the mixed redevelopment at Redcar on Teesside). It is quite clear from the case that the Minister's position is quite different from someone holding a judicial or quasi judicial office. All the Minister has to do is to consider genuinely the inquiry report and the objections (paras 43, 44). The constitutional position of a minister is quite different from a judge. It is helpful to see from the judges how the Porter test has to be applied. Pill L.J. said (para. 71) "... The importance of appearances is ... generally more limited in this context than in a judicial context ..." (see also para 98). Rix L.J. said this at paras 95 and 96:

"... the requirement made of such decision makers is not, it seems to me, to be impartial but to address the planning issues before them fairly and on their merits, even though they may approach them with a predisposition in favour of one side of the argument or the other. It is noticeable that in the present case no complaint is raised by reference to the merits of the planning issues. The complaint, on the contrary, is essentially as to the timing of the decision in the context of some diffuse allegations of political controversy. [96] So the test would be whether there is an appearance of predetermination in the sense of a mind closed to the planning merits of the decision in question. Evidence of political affiliation or of the adoption of policies towards a planning proposal will not for these purposes by itself amount to an appearance of the real possibility of predetermination or what counts as bias for these purposes. Something more is required (my emphasis) ... '31 unless there is positive evidence to show that there was indeed a closed mind, I do not think that prior observations or apparent favouring of a particular decision will suffice to persuade a court to quash the decision ... assuming the Porter ... test is applicable, the fair minded and informed observer must be taken to appreciate that predisposition is not predetermination and that councillors can be assumed to be aware of their obligations' ..."

Longmore L.J. said at para 109:

" ... the test of apparent bias relating to predetermination is an extremely difficult test to satisfy. This case ... comes nowhere near satisfying (the) test ..."

[64] With that high test in mind I return to look at the documents and look for some unguarded word or phrase or letter or reported speech such as the Home Secretary uttered in Al Fayed or the Welsh Minister in Condron. Not only do the documents reveal no such thing, there is a great deal to indicate the opposite i.e. an open fair mind. I take three examples separated in time. The developers wrote the somewhat angry and despairing letter to the Minister (who ultimately made the decision) on 25 February 2008 (No 6/4 of process). The civil service response on 25 March (No 6/7 of Process) was a model of correctness. It was described as a "straight bat" answer and I agree with the cricket analogy. In no possible sense is this evidence of predetermination. On 4 August the Minister's own letter to the developers is also a model of the correct approach from someone mindful of his Statutory duty (No 6/12 of process), whatever might be said for or against the developers there can be no criticism of the decision taker.

[65] The matter moves on in time. On 22 September the Scottish Government solicitor (Mr MacLeod) internally was giving the correct advice as to how to proceed (No 6/15 of process). By February 2009 when Mr Kelly was involved the attitude of the civil service was objective and impeccable. The e-mail from Lesley McNeill on Rule 21could never be said to be evidence of a closed mind. In my view it is not necessary to look again at every document. In my opinion neither individually or collectively do they show any predetermination.

[66] I next ask myself, is there any conduct by the Minister which can be criticised? Is there any public press conference as in Porter, membership of any pressure group as in Bovis or threats to circumvent an objector as in Ghadami or anything like these. Unsurprisingly there is nothing. In the realm of administrative law there is nothing wrong with the decision taker meeting an objector. That happened in Ghadami but was not per se the ground of complaint. In this case as far as the papers reveal the Scottish Government only met the objectors and the MOD once and that was in May 2009.

[67] The issue was raised in the Scottish Parliament and No 96 of process contains various questions and answers from April 2009 to November 2009 (some eight questions). In my view none of these are evidence of a closed mind and shows a complete willingness to disclose everything under Freedom of Information.

[68] In argument much was made of two documents which are a guide or aide to good planning practice. The first is called Planning Advice Note 45 "(PAN 45 in short)" November 2008 relating to windfarms. Appendix One of this refers to the use of suspensive conditions. The advice is specification, clarity and deliverability in a reasonable time frame. The developer and operator have to agree. (7A/30 of process).

[69] The other is the Scottish Government Circular No 4/1998 (No 6/86 of process). That sets out policy on the use of Planning Conditions. Paragraph 2 sets the General Policy with six "bullet" points viz necessary, relevant to planning, relevant to the development to be permitted, enforceable precise and reasonable in all other aspects.

[70] The Section 36 consent letter from the second inquiry is dated 9 November 2010 and is signed on behalf of the Minister by Mr Hume. There are many detailed conditions (No 6/51 of process). In Annexe 2 Part 1 paragraph 7 are found the conditions relating to radar. The Mitigation Scheme is more fully found in the Heads of Agreement made on 1 July 2009. In effect these are the conditions. They contain a number of detailed paragraphs which allow for an integration scheme, payment of costs, amendments, the possibility of failure and the developer to pay further costs. This scheme must have been known to the petitioners by the autumn of 2009. A redacted copy of it has been produced by them before me (See 6/27). In their written submissions to the second inquiry (7A/14 page 8 para 23) it is clear they were aware of it.

[71] A point was made late on about the decision letter and it arose in two ways. For the first time, in his reply speech Mr Campbell suggested that the decision had not been made by Mr Mather because the letter of 9 November 2010 was signed by Jamie Hume who is a member of the staff of the Scottish Ministers. It was not said that either Mr Mather or Mr Hume was personally tainted or biased, nor could it be on the evidence. I think this suggestion is simply wrong. It is perfectly proper for civil servants to sign for ministers under the Carltona principle (Carltona Ltd v Commissioners of Works [1943] 2 All E.R.560).

[72] It was also argued, without much conviction, that because the letter had simply agreed with the reporter that was insufficient. In my view it cannot be said that the Minister has not taken account of all the relevant material circumstances. That is very clear from what is annexed to the letter. The letter is short but comprehensive. It need not be long. His reasons are perfectly adequate and understandable. (See Bolton MDC at page 42). I accordingly reject both arguments directed against the decision letter.

[73] I next consider the argument that the Reporter has not given sufficient reasons for her conclusion in the second Report and has not struck a fair balance between the competing interests. Only three areas were argued, radar, environment and Scottish Natural Heritage.

[74] In my opinion a fair examination of the Report of the Second Inquiry shows that all these matters were fully analysed and proper findings and conclusions reached. I have already dealt with radar elsewhere in this opinion and need not repeat that. What of the general environmental issues. The Reporter has in various places considered Energy Policy against environmental issues (see e.g. paragraph 1.3 to 1.11; 1.12 to 1.17; 2.70, 4.115). She clearly understood the mix of technologies and the importance of targets.

[75] On landscape impact I am of the view that she addressed the correct question viz that a cumulative assessment was needed. That required her in general terms to take account of consents, applications and what was constructed. She properly discounted matters that were merely proposals (see 2.45 onwards; 4.54 onwards and finally 4.198 onwards) that in itself is a demonstration of a balancing exercise.

[76] Scottish Natural Heritage put in a written submission and that is set out at 4.192 onwards. There was a suggestion made that the witness Mr Steele had been ignored but an examination of paragraphs 4.92 and 6.52 shows that to be wrong. The Reporter also went on site and in my view was entitled to form her own opinion on visual impact. Her conclusions on these matters clearly show that she has balanced between adverse impacts and "Green energy" interests (See 6.103 to 107). She accepts and explains the conflicts (7.5 and 7.8). In my opinion the reporter has clearly explained what she has done and is entitled to express her own subjective view on visual impact.

[77] I do not need again to rehearse the authorities about reasons. There is a need for commonsense in the approach to these reports. They should not be subjected to the meticulous scrutiny of an examination paper. In my view the principal controversial issues have been dealt with in an exemplary fashion in the report of the second inquiry.

[78] I now turn to deal with the condition attached to the Minister's letter (No.6/51). The statement of the condition is to be found in paragraph 7 on page 9 of the letter and has six sections. It is described as a "Radar Mitigation Scheme" and the document refers back to heads of agreement jointly signed on 1 July 2009 by the MOD and the developers. (6/31 and 32) (Messrs Chafer and Shaw). The heads of agreement are detailed and extend to seven pages. What they encompass is this. They relate to the wind farm at Fallago Rig. They speak of a scheme to attain a good aviation specification to mitigate the effect of the development on RAF radar and a particular defence installation. The developers are to meet the costs and it was expressly agreed that details of any further scheme would not be given in the event of the first integration scheme not working (Clause 3(iii)). That scheme is described in clause 5. There follow a number of substantial financial obligations which the developer accepts. The possibility of failure and further costs is accepted. The 2009 Scheme must have been known to the Petitioners by the Autumn of 2009. A redacted copy of it has been produced by them before me (see 6/27). In their written submissions to the second Inquiry (7A/14, page 8, para.23) it is clear they were aware of it.

[79] In the absence of any evidence to the contrary, and there is none, it has to be presumed that ministers and their civil servants will have proper regard to the terms of PAN 45 and Circular 4/1998 on the question of condition. If they are going to apply conditions the test is that they be "appropriate" as I have already noted from the argument of counsel.

[80] In the present case I think it is simply unarguable to say that these particular conditions did not meet that test. They are not vague, they are specific and means have been devised to enforce them. Given the nature of the mathematics and science involved it is not unreasonable to contemplate limited success or even failure. I further consider that the insistence on these suspensive conditions does meet the terms of PAN 45 and the circular summarised earlier. The conditions are forward looking and the very meaning and nature of planning is to look to the future.

[81] I am further of the opinion that the law is on the side of the developer's argument. The radar problem apart, two inquiries have found the proposal to be a sound one in terms of planning. That was precisely the case in the Grampian Regional Council case where a road closure was the obstacle. To the same effect is the British Railways Board case. That is an even more extreme example since it appeared that the difficulty over the condition was insuperable. There is and can be no absolute rule and in my opinion the petitioners' arguments on this point must fail.

[82] It is also important to notice how the reporter dealt with the "radar conditions". What she did not do at the second Inquiry was to say that since the MOD objection had been withdrawn there was no longer a radar issue. What she did do, was to devote considerable time to considering the radar question, to compare and contrast the change of position from the first inquiry by a system of cross reference and herself to make findings and give reasons before setting out and recommending the conditions. The whole matter is dealt with from paragraphs 6.59 to 6.87. The important finding is 6.69 and the need for conditions is found at 6.85. I also observe that the Reporter has plainly had regard to PAN 45 and the circular in considering this. It is also clear that she regarded the change the attitude to radar problems as new evidence. In my view she was entitled so to conclude.

[83] I want to look briefly at the ultra vires point. What was said was that since there never was any new evidence Rule 21 (which I have already quoted) could not be applied and the second inquiry should not have taken place. For the petitioners this is a difficult argument to make since they wanted the second inquiry and took an active part in it. If they had really thought there was no new evidence in 2009 then it is at the least surprising that they did not try to stop a second expensive inquiry.

[84] Be all that as it may, it is clear that the Reporter thought there was new radar evidence and also new environmental evidence. Plainly the Memorandum of Understanding was new evidence as were consents in different areas of England where there were radar implications. Together with the change of attitude by the MOD there was ample new evidence to operate Rule 21. The important point is that the Rule expressly provides for a case where the Minister is minded to disagree with a reporter. He could have disposed of the matter by allowing representations. He did not do so and instead reopened the inquiry. In my view the ultra vires argument is simply wrong and I reject it.

[85] What of the argument about mora which is linked to submissions about further procedure. In my opinion, with some hesitation the second respondents are correct about this. The petitioners only addressed this in their reply and in my view did not meet the point. It seems really to be a matter of commonsense. From what I have already written it is clear that by the spring of 2009 the petitioners must have suspected that the MOD would withdraw its opposition as in fact happened. Thereafter the petitioners wished for and indeed encouraged a second inquiry. They knew about the Heads of Agreement. The reporter was to be the same as at the first inquiry. As happened, and should have been foreseen, the environmental findings at the second inquiry were the same as at the first. That was always likely as there was little new evidence on this matter. At all times the petitioners had legal advice.

[86] If reduction is allowed it would leave the conclusions of both reports intact. Would there have to be a third inquiry? Could a different Minister take the decision?

[87] By the time that Mr Kelly wrote on 18 October 2009 (No.7A/12) the petitioners were aware by intimation and investigation of everything which would be raised at the second inquiry. The letter threatens judicial review. In my opinion that was the proper time to have sought that remedy well before the second inquiry. They, in fact, delayed that action until the present petition. In my opinion that is a delay too long. Mr Martin described that behaviour as counter intuitive and I agree with him. As a result the respondents, the MOD and the reporter went to the second inquiry, witnesses were called and great expense incurred. In effect all these parties relied on the failure to make good the threat. In my view all the arguments presented to me about bias, ultra vires and natural justice could have been presented in 2009. I rely on the authority of Uprichard which I propose to follow. I will sustain the plea of mora.

[88] For the same reasons I think that the pleas of no title and personal bar are good. No authority was cited but it seems to me that having asked for the second inquiry they have no title now to challenge what they wanted in the first place, and having allowed all the others to go forward to that inquiry they are now personally barred from trying to quash the effect of it.

[89] I should add one further thing. Had the petitioners succeeded I can see no proper way forward for this application for the Fallago Rig wind farm. Proper administration of planning requires some certainty and moderate speed. None of the solutions hinted at in the petitioners' written submissions, paragraph 78, are attractive. It was even suggested that the matter be remitted to a judge from another jurisdiction. That too cannot be a serious option.

[90] How then should this matter be disposed of in view of my decision to refuse judicial review. I leave out of account the interdict but will deal with the pleas in this way. I repel the petitioners' pleas 1, 1A, 3, 4 and 5. Plea 2 is repelled for want of insistence. I sustain the pleas for the first respondent as follows: 1 (as asked to the extent of refusing rather than dismissing the petition), 2, 3, 4, 5, 7 and 8; and for the second respondents as follows: 1 (as asked to the extent of refusing rather than dismissing the petition) 2, 4, 5, 6, 7, 9, 10.

[91] There is one other detail. Half way through the hearing Mr Campbell lodged a document (No. 6/98 of process) called Right First Time Getting it Right. As far as I can recall it was never looked at in any detail by any party and I propose to take no account of it.