'Clarity and common sense' as Scottish appeal court restores wind farm approval, says expert

The judgment by the Inner House of the Court of Session overturns that of the Outer House, which had ruled previously that the Scottish ministers had failed to comply with the Environmental Impact Assessment (EIA) and Habitats regulations when they granted permits for the projects in October 2014.

The ministers' decision had been challenged in the courts by the Royal Society for the Protection of Birds (RSPB), broadly on the basis of the potential impact of the wind farms on certain species of migratory seabirds, including gannets, kittiwakes and puffins.

Planning and environmental law expert Gordon McCreath of Pinsent Masons, the law firm behind Out-Law.com, said that the decision by the Inner House "provides some much needed clarity and common sense to allow Scottish offshore wind to move forward".

"Where the Outer House used difficult reasoning to conclude that habitats regulation assessments needed to be consulted upon as part of EIA requirements, the Inner House states simply that the regulations don't require it, so it doesn't need to be done," he said.

"Where the Outer House concluded that the science did not establish no adverse effect on birds beyond reasonable doubt, the Inner House states it went beyond its remit and, absent manifest error, the question was one for the Scottish ministers, not the court. And where Lord Stewart said that you have to treat a site as protected if it is clear that it meets the protection criteria, Lord Carloway and the Inner House judges say that a site should be treated as protected simply when it is designated as protected," he said.

"Beauty in simplicity, as the saying goes; and a sentiment that all those in the Scottish renewables industry will echo," he said.

The dispute arose over four planned wind farms in the Firth of Forth and Firth of Tay, on the east coast of Scotland. These are the 100-turbine Inch Cape development, and 75-turbine Neart Na Gaoithe, Seagreen Alpha and Seagreen Bravo developments. The total number of planned turbines decreased during the planning process, from 488 to 335.

The RSPB based its challenges to the projects on three broad points. It argued that the Scottish ministers had failed to comply properly with the EIA regulations, along with a separate common law consultation point which was dismissed by both courts as irrelevant. It had also argued that the 'appropriate assessment' of the suitability of the sites had not been carried out correctly and came to a "perverse" conclusion, and that the ministers had not given appropriate weight to advice received from conservation bodies during the consultation process.

The Inner House criticised the RSPB for "a lack of specification in [its] pleadings", which it found were confused on exactly which article of which directive, and which paragraph of which regulation, the RSPB alleged had been breached by the ministers. This "muddle" also "[found] its way into the Lord Ordinary's reasoning [in the Outer House]", the appeal court said.

The developers of each of the four planned projects had obtained a scoping opinion from the ministers ahead of their formal applications, in each case accompanied by a "very substantial" environmental statement. All publication and consultation requirements were complied with, according to the Inner House. There was "no scope" in the regulations requiring the developers to supply any further information to the public and to environmental bodies, in the manner argued for by the RSPB, the court said.

"That would be to circumvent the clear terms of the regulations," Lord Carloway said, giving the judgment of the court. "In particular, it is not a requirement that persons, including the respondents, the interested parties or any objectors should look beyond the regulations to ascertain the legal position, where the regulations purport to implement the directives and there is no dispute that they have done so."

"The regulations are intended to provide for the effective publication of environmental information and for public participation in the EIA process. The extent of such provision must, however, be tempered with a degree of realism. It should not create an endless process of notification of, and consultation on, every matter which is, or becomes, available to the decision-maker prior to the decision. The process ... was fully complied with here," he said.

The court also upheld the appropriate assessment, which met the legal test of not containing any 'manifest error of assessment'. The Outer House judge had "strayed well beyond the limits of testing the legality of the process" and "turned himself into the decision-maker following what appears to have been treated as an appeal against the respondents' decisions on the facts", rather than an application for judicial review, the appeal court said.

RSPB's other challenges were similarly dismissed.

Gareth Phillips, an expert in energy-related infrastructure projects at Pinsent Masons, said that the decision was "a much needed victory for offshore wind at a time when UK renewables is grappling with the impact of subsidy cuts".

"While the appeals process could mean this is not the end of the story, this ruling sends a positive signal to investors that the UK energy industry is open for business," he said. "While legal due process is essential, court battles such as these are time consuming and prompt lengthy delays to projects that could make a genuine contribution to our energy supply."