Tuesday, 16 February 2016

Today's High Court Appeal for Balintore Castle

Keen readers of this blog may wonder why I have not made any recent reference to the proposed Carrach Wind Farm, which for the last 8 years has posed a threat to the wonderful setting of Balintore Castle. The reason, dear reader, is that the matter was becoming very serious indeed, culminating in a full hearing at the Edinburgh High Court today. The build-up to this hearing has been roughly a year, and given the stress and legalities involved it felt safest to keep the affair under wraps.

Given that the hearing is now over, I am delighted to put my submissions to the court on this blog. My case is that the government reporter who upheld the developers' appeal, when Angus Council turned the planning application down, was at fault in not visiting Balintore Castle in his determination by site visit.

I was expecting a decision on the case today, but it will apparently come sometime within the next 3 months.  Representing oneself in the Court of Session against professional legal counsel acting on behalf of the government, with three judges in attendance is something one does not do often in one's lifetime, and I am quite happy for it to stay that way. :-) However, I feel that I made my case as well as I could, and that the judges carefully considered the points of the argument from myself (the appellant) and the government's counsel (the respondents). It was a good feeling to know we live in a society with checks and balances.

You can find my two major submissions on the following google docs links.
  1. My Independent Wind Farm Visualisations
  2. My Notes of Argument

I have also appended the documents inline for convenience. I put the one with the pictures first, because I have read far too many dry legal documents over the last year. If you can enjoy my legal documents in any way, then that is a positive outcome of the case.

Additional Visualisations of the Carrach Windfarm Proposal
for Court of Session Hearing, Edinburgh, 16th February 2016
Dr. David John Johnston
Section [28] of the DPEA’s Appeal Decision Notice for planning appeal PPA-120-2036, reads as follows:
28. However, unlike the scheme before my colleague, only two blade tips would be visible. In the context of such expansive views, I cannot agree that the visibility of two blade tips would amount to a significant visual disturbance. I cannot therefore see any reasonable basis for concluding that two turbines, less than 50 metres in height, partially screened by intervening topography and 2.8 kilometres away should undermine the renovation project or the future use of an A listed building.
Given the government reporter seems to have accepted the visualisations of the developer, it seemed sensible to perform independent visualisations.
Ordnance Survey Visualisation Methodology
The locations of the two wind turbines and Balintore Castle were plotted on an Ordnance Survey map as below:


A straight line was drawn from Balintore castle to each of the two turbines, and the positions of the map height contours (traditionally shown in brown) along each line were measured to provide cross-sections of the intervening topography.
These topographies are plotted in the following graphs. Note that cubic interpolation is used between the contour lines to provide a realistic cross-section shown in blue. The two viewpoints used are the bottom and top of the castle’s great tower. The bottom of the tower gives the level of the castle terrace: a flattened area of ground designed to capture the view. The top of the tower holds a large purpose-designed balustraded viewing platform. The highest point of each topography is detected using an optimisation function for the interpolated cross-section, and this is the second point (along with each viewpoint as first point) that determines the line of sight.
A simple graphic for the castle tower is shown on the left of the plots in green and a simple graphic for each turbine is shown on the right of the plot in red. The vertical scales of these graphics are correct.
The sight lines from the castle to the west turbine are shown below:

The sight lines from the castle to the east turbine are shown below:
For the west turbine, the hub is visible from ground level at Balintore Castle, and becomes more so as you climb the great tower. For the east turbine, the hub is just below the horizon, on the castle terrace, but as you climb the great tower, this may or may not come glancingly into view. It is a close run thing.
For both turbines, the two hubs are essentially at horizon level at Balintore Castle. This means that essentially the full blades will be visible from the building.This contradicts the statement of the government reporter that only two blade tips would be visible. He clearly did not check his facts.
The location of the hubs could not be any more perfect to give the maximum “now you see it now you don’t” effect, where the blades completely disappear and then completely re-appear. The result is a high level of visual intrusion.
The government reporter, further, did not report on the temporal nature of the visual intrusion. For one third of the time, one full blade will be visible from each turbine. For two-thirds of the time, two full blades will be visible from each turbine. It is therefore both incorrect and unrepresentative, that the developer chose to represent the scene with only part of a single vertically oriented blade showing for each turbine.
Google Earth Visualisation Methodology
A 3D wind turbine model was obtained in COLLADA (*.dae) format. This was scaled and translated within a KML (*.kml) format file to match the dimensions and planned locations of the Carrarch wind turbines. The KML file was visualised in Google Earth.
The view from the castle terrace (eye altitude of 320 m, horizontal field of view of 11 degrees) looks as follows:
The view from the castle viewing platform (eye altitude of 342 m, horizontal field of view of 11 degrees) looks as follows:
The view from the castle viewing platform (eye altitude of 342 m, horizontal field of view of 50 degrees) looks as follows:
The Google Earth visualisation from the castle terrace shows the hubs of the wind turbines to be above the horizon. The view from the top of the tower has even more of the turbines visible. You can see that as you climb the tower, a background range of hills comes into view and this tallies with experience i.e. the view opens up spectacularly as the ascent is made. This hubs can also be seen on the 50 degree field of view visualisation, though the 11 degree views more clearly disambiguate how much of the turbines are visible. Overall, a large proportion of the turbines are clearly visible from the castle.
Ordnance Survey vs. Google Earth Comparison
One would expect different results from different methodologies. However, both indicate that the turbines will be visible from at least above the hub level. To investigate the discrepancy in the extent of turbine visible. I plotted the turbines at the absolute heights given by the Ordnance Survey map (altitude reference mode = absolute) on Google Earth, rather than letting the turbines rest on the ground as is the default (altitude reference mode = relativeToGround). The turbines ended-up being partially buried, showing that the ground level given by Google Maps is somewhat higher that given by the Ordnance Survey. Therefore, to give fair views from the castle, I should also increase the eye altitude of the viewpoint further. I therefore also took an additional view at 347m. This revealed slightly more turbine but was not qualitatively different from the 342m view provided. As an experiment in the other direction, I also reduced the height of the view point below that of the castle terrace to 302 m. Slightly less turbine could be seen from here, though the hubs were still visible, but the view was little different qualitatively from the one at the castle terrace that is provided. The conclusion is that the height difference between the Ordnance Survey and Google Earth was not causing the difference in visualisation.
Looking carefully at the shape of the hills on Google Earth leads me to believe these may not plotted to the spatial accuracy of the Ordnance Survey and that the height information is linearly interpolated which will of course omit local height maxima that occur between contours. These two factors, in my view, are likely to be the major source of discrepancy, and I would therefore favour the transparent Ordnance Survey methodology as the most dependable.
Developer Visualisations
For the purposes of comparison, the visualisations produced by Green Cat Renewables on behalf of the developers may be found in the document with tab 7/2 in the court bundle. The relevant visualisation of the view (horizontal field of view of 76 degrees) of the turbines from Balintore Castle’s terrace is reproduced here. This is wide-angle, indistinct and pale in the extreme.

I have zoomed in to try to catch the same field of view as in the Google Earth visualisations. There is a considerable difference in the visible extent of the turbines reported.

Overall Conclusion
The Ordnance Survey methodology indicates that the turbines will essentially be visible from the hub upwards. The Google Earth methodology confirms the Ordnance Survey finding, and furthermore  indicates that a somewhat greater proportion of the turbines will be visible. The slight discrepancy is likely due to systematic error on the Google Earth side, as the Ordnance Survey methodology has a direct audit trail from Ordnance Survey data.
The common finding of the two approaches, i.e. that full turbine blades would be visible, contradicts the statement of the government reporter that only two blade tips would be visible. The government reporter took his information from the reports provided by the developer. I took the time and effort to look into the matter myself, and have subsequently had independent verification that the Ordnance Survey data tells a very different story.
Indeed, the “jack in a box” effect revealed, of blades appearing and disappearing below the horizon level (at a maximum when the hub is at horizon level) would provide a high level of visual distraction.

Notes of Argument in the Appeal Contesting DPEA Appeal Decision Notice PPA-120-2036
Dr. David Johnston vs. Directorate of Planning and Environmental Appeals
Ref XA65/15
21st November 2015
(revised 17th January 2015)
Dr. David Johnston

1. Introduction

[1] The basis of my case against the judgement in Appeal Decision Notice PPA-120-2036 is that proper process was not followed. Although the determination for the decision was ostensibly by site visit, the government reporter Dan Jackman did not visit the A-listed Balintore Castle, the most important visual receptor of the proposed wind farm development on Carrach Hill.

2. Detail

[2] In particular, Mr. Jackman did not visit either of the two viewing platforms on top of Balintore Castle, which were designed to give visitors an astonishing prospect over the Highland foothills which from the construction of the castle in 1860 remains to this day unspoiled. The view from the purpose-built balustraded belvedere (or viewing platform) at the top of the Great Tower cannot be inferred from ground level and is quite simply awe-inspiring.

[3] Neither did Mr. Jackman visit the rooms in the south and east elevations of the castle which have been afforded large plate glass sash windows to take full advantage of the same view. Two large principal rooms of the castle: the drawing room and the dining room have been designed around this view with specially oriented bay and oriel windows respectively. The castle sits on a large levelled plateau, also constructed in 1860, called the “castle terrace” placed one third of the way up a local mountain called Cat Law. There is no clearer indication that the castle was carefully placed in the landscape to overlook an area of outstanding natural beauty.

3. Previous Appeal

[4] One of the reasons a similar appeal by the same developer to build a wind farm on Carrach Hill was turned down in 2013 was precisely because of the impact on the views from Balintore Castle. The government reporter in this instance for Appeal Decision Notice PPA-120-2022, a Richard Hickman, is unequivocal on the point. Mr. Jackman acknowledged this in his report, yet failed to gather the appropriate evidence by a site visit to Balintore Castle.

[5] My contention is that this deficit in evidence gathering is negligent i.e. the appropriate evidence was not looked at and not taken into consideration for the judgement. It is equally puzzling that there is no reference in Mr. Jackman’s report to what he witnessed on his site visit. In short his conclusions are given without any presentation of his on-site findings, and without any indication of how he reaches his conclusions from his evidence.  An important principle in government in transparency. We are taught from an early age in school to show our working, and this is something that we should extend into our adult lives to provide an audit trail if nothing else. Mr. Jackman’s report has no audit trail from his site visit, and instead the report reads like a paperwork exercise, consisting of purely examining the documents in the case.

4. Balintore Castle’s Heritage

[6] Mr. Jackman did not, in his report, give any detail on the heritage that Balintore Castle represents. This is significant because one of the principal criteria, on which the previous appeal was turned down, was precisely this heritage. Perhaps I should give a brief background on the heritage, and why I have devoted myself to restoring this building as a private individual without wealth, rather than as a developer with resources to hand and profit in mind.

[7] It is unclear whether Mr. Jackman was ignorant of Balintore’s architectural importance when he approved the current appeal, whereas Mr. Hickman who turned down the previous appeal was clearly aware of the significance of the building. This emerged during our conversation on his visit, and I was heartened that such an informed and learned man was the reporter on that occasion.

[8] Balintore Castle is not just any listed building, and indeed it is not even any A-listed building. It is a late career masterpiece of the Scottish architect WIlliam Burn (1789-1870), who played a pivotal role in the history of Scottish architecture. Mr. Burn single-handedly brought the Scottish Baronial style to the Victorian era, resurrecting this mediaeval style with a refashioned, romantic and fashionable Gothic revival twist. Mr. Burn’s pupils, the most significant of whom being David Bryce, took the Scottish Baronial style forwards and this movement lasted well into the 20th century.

[9] Mr. Burn personally funded MacGibbon (his pupil) and Ross (in turn MacGibbon’s pupil) to publish the most significant books there have ever been on Scottish architecture called “The castellated and domestic architecture of Scotland“ and “The ecclesiastical architecture of Scotland”.  As well as being the essential reference for historic buildings in Scotland, it was and is the pattern book ne plus ultra of the Baronial movement.

[10] Mr. Burn’s practice in Edinburgh was so successful he moved to London, and became the most prolific country house architect of the Victorian era, building or reworking 500 stately homes all over the country in a variety of styles. This is why towards the end of his life he clearly returned with joy to his roots, the Scottish Baronial, and threw everything into the jewel box confection of Balintore e.g. the cannon waterspouts are taken from the iconic fairytale 17C Craigievar Castle. Although I have owned Balintore Castle now for 8 years, I am still finding new details to delight the eye and soul.

[11] The commission to reclad St. Giles Cathedral right in the heart of the capital, adjacent to this very court building, was awarded to William Burn. No higher trust can be placed in an architect by the Scottish nation. Will the Scottish nation betray this trust and blight his masterpiece?

5. Irreconcilability of Appeal Decision Notices

[12] The two appeal decision notices are directly contradictory in content, revealing a worrying inconsistency amongst the DPEA’s staff.  Paragraph 59 of Mr. Hickman’s report:

I accept the argument that the castle has been located and designed so that the occupants can take advantage of these views in a similar manner to enjoying views over an extensive abutting designed landscape. I also agree that given the effort that is going into the restoration of the building, and the public interest in completing the restoration of this listed building, it is important to ensure that the success of the restoration project is not undermined by any harmful changes to the building’s wider setting.

[13] In contrast, there is a surprising remark, in paragraph 26 of Mr. Jackman’s report:

It is an unfair reading of the previous appeal decision to suggest that no other wind turbine proposal would ever be acceptable.

[14] In contrast, given Mr. Hickman’s decisive judgement, my neighbours and I took some reassurance from the fact that the previous appeal’s refusal gave the Quharity Glen, where the castle is located, protection from future developments.  

[15] Mr. Hickman has an almost prescient related statement of much wisdom in paragraph 29 of his earlier report:

These are matters on which impartial professional assessors may reach differing conclusions from the same information.

[16] However, the basis of my appeal is that the two reporters were not reaching a decision based on the same highly relevant evidence. Mr. Jackman failed to consider the appropriate evidence from his site visit, by failing to visit Balintore Castle.

6. Additional Remark

[17] If I may make an additional remark. It appears to be a flaw in the system that ultimately a decision which has such a deep effect on a community is made by an individual, because repeated appeals and applications, precisely as the developers of Carrach have made, will ultimately, just by the laws of chance, permit any development: a decision which cannot then be undone. The process is therefore flawed in the circumstance of persistence. National guidelines are required because the inhabitants of Glen Quharity have been emotionally damaged and exhausted by the onslaught of the last 7 years. For the Carrach Windfarm, there have been 3 successive planning applications. The initial planning application was withdrawn following anemometry data from the site which revealed disappointing wind yields. The two subsequent applications were refused by the Angus Council Planning Committee. The first appeal resulted in the reporter upholding the decision of  Angus Council. In relation to each of the three applications, the local community has on each occasion registered overwhelming objections to each development with Angus Council.

7. Scale

[18] The difference between the two proposed wind farm developments under discussion is, of course, their scale: 9 turbines for the earlier scheme and 2 for the current one. My argument here is simply that “spoiled is spoiled” i.e. it is a qualitative matter not a quantitative one. And with this in mind let me further quote from Mr. Hickman’s paragraph 65 on the 9 turbines scheme.

I consider that the modest contribution that would be made to renewable energy targets by this relatively small wind farm together with the temporary benefit to the local economy during construction and the continuing income to the two farm businesses during the operational period are insufficient to outweigh the harm resulting from landscape impact

[19] Following this course of argument, a 2 turbine scheme is even more modest in generational capacity, and therefore there is even less justification to spoil the landscape.

8. Architectural Heritage and Degrees of Blight

[20] It has to be remembered that our age is still not fully enlightened in the protection of Victorian heritage. Balthayock House in Perthshire was needlessly demolished in 2002 despite attempted intervention by the authorities and myself. We can look to the last few decades to get a historic perspective. In the 1960’s the Gothic masterpiece of St. Pancras Station was going to be demolished; this is almost inconceivable to us nowadays.  It was only by the intercession of Sir John Betjeman and a few others that the building was spared. In the 1970’s bungalows were built within a few metres of Buchanan Castle in Drymen, a sister building to Balintore, also by William Burn. This made it unattractive to developers, with the result it has deteriorated to such a perilous state, that I fear it is lost. A planning department or government appeal must have permitted these bungalows. Their shame is the mistake of not realising that with heritage the long term has to be considered, and that short term decisions driven by greed or blanket policies of the moment can result in all being lost.

9. Contradictions

[21] I will present a number of attributed contradictory statements pairs, each with a statement A and statement B. This Socratic dialogue highlights the points of debate.

[22] Statement A:  Mr Jackman Paragraph 15
It seems to me that the main public viewpoints would be from the local road network.
As such, views would be for a relatively short duration.

Statement B: Dr. Johnston
My plan is to open Balintore Castle to the public, therefore their view of the windfarm would
be continuous; mine for the rest of my life; and the castle’s for at least a generation. This applies equally to a number of properties adjacent to the castle. If the reporter has no concerns about the view, why would he emphasise the brevity thereof?

[23] Statement A: Mr. Jackman Paragraph 15
Overall, in the context of planning policies supporting appropriate wind turbine development, I do not consider that there are any unacceptable visual impacts.

Statement B: Mr. Jackman  Paragraph 18
In my opinion, nearby local residents would experience the greatest impact from the development.

Here Mr. Jackman clearly contradicts himself: what is an “impact” apart from something that is undesirable? Mr. Jackman openly acknowledges that local residents would experience the greatest impact from the development.

[24] Statement A: Mr. Jackman  Paragraph 19

I cannot accept that two turbines of a height less than 50 metres would have a demonstrably harmful impact on the residential amenities of nearby houses.

Statement B: Dr. Johnston

A 47m (154 feet) high wind turbine is a substantial structure, standing taller than the aforementioned St. Giles Cathedral (43m). The reporter says he accepts the visualisations of the developers. Yet my own visualisations in the accompanying document  “Additional Visualisations of the Carrach Windfarm Proposal”, determined by two independent auditable methodologies, show that significantly more of the turbines are visible than the developers claim. Without being in possession of the full facts, namely a site visit to Balintore Castle and a reliable visualisation, such a statement is premised upon negligence and the “cannot” further shows a closed-minded negligence.

10. Conclusion

[25] Having decided that a site visit was merited, Mr Jackman failed to make a proportionate examination of the potential views from the most significant receptor in the area - an A listed building of particularly noteworthy historic value. Having undertaken the visit to the site, it beggars belief that Mr. Jackman failed to visit Balintore Castle. Further, the Reporter accepted without question the visualisations of the developer, which I demonstrate to be misleading using the public domain Ordnance Survey mapping data.

[26] Moreover, it is inconceivable, given the history of this application, the level of objections from residents, Angus Council and the previous Reporter's judgement, that Mr. Jackman did not visit the castle and the viewing platform, etc. Notwithstanding the absence of any specific requirement for a Reporter to visit any particular site, I suggest there is more than a "reasonable expectation" that any Reporter would do so in these circumstances. Even if there is no decision to uphold this appeal, I would ask the Court of Session, at the very least, to order the appointment of a fresh, independent Reporter to review this case and undertake a fresh site visit.