(1) Highland Council v. Scottish Ministers and Combined Power and Heat (Highlands) Limited and (2) Ross Estates Company v. Scottish Ministers and Combined Power and Heat (Highlands) Limited, 28 August 2014 – invalid condition attached to planning permission

Inner House case considering a planning appeal in respect of an application for the development of a waste to energy combined heat and power plant in Invergordon.

The Reporter determining the appeal had granted permission subject to a number of conditions, one of which permitted the power plant to accept a maximum of 100,000 tonnes per annum of waste originating from within the Highland Council area.  However, the condition also stated that a proportion of the waste could originate beyond the Highland Council area.

The Inner House found that the condition was invalid as the reference to the waste from outwith the Highland Council area meant that the permission granted went beyond that which had been applied for (the application had provided for incineration of Highland waste only) and thus beyond what had been considered at the planning inquiry. The developer’s Environmental Impact Assessment had also been drawn up on the understanding that only Highland waste was to be treated at the plant. All of this meant that the planning authority (Highland Council) and the Ross Estates (objectors) had been disadvantaged and their appeal on that basis was held to be well founded.

The court found that the invalid condition was not severable from the rest of the planning decision (on the basis that the planning permission may not have been granted at all if it had been appreciated that the condition was invalid) and so it was not possible to quash only that condition. However, whilst the planning inquiry required to be re-opened, it was unnecessary to rehear the entire case and the inquiry would only have to deal with the invalid condition. If the reporter considered that the condition was essential to the grant of permission he would have to hear evidence and submissions from all of the parties on its merits. If the reporter were to consider the condition, as drafted, not to be essential to the permission, then it was open to him to substitute an amended condition.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

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