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UK Supreme Court: Shetland wind farm's potential impact on rare birds 'not significant'

Out-Law News | 09 Feb 2015 | 5:18 pm | 3 min. read

Scottish ministers were correct to conclude that a planned major wind farm in the Shetland Islands would not significantly affect the neighbouring population of rare wading birds, the UK's highest court has ruled.

The Supreme Court ruled that Viking Energy's proposed 127-turbine project, approved by the Scottish government in 2012, could go ahead with a previously-agreed 'habitat management plan' in place. Conservation group Sustainable Shetland had challenged the development on environmental grounds, in particular the alleged failure of the Scottish ministers to take proper account of their obligations under the EU's Wild Birds Directive.

"Dismissal of the appeal is welcome news for the Scottish government and the Scottish renewables industry, not least because the Viking project has strategic importance in the context of facilitating the subsea grid connection works which are necessary to maximise the renewable energy potential of the Shetland Islands," said planning and environmental expert Gary McGovern of Pinsent Masons, the law firm behind Out-Law.com.

"The uncertainty hanging over the Viking decision for almost three years has had knock on effects for other projects in and around the islands which have suffered delay, but can now hopefully move forward," he said.

However, the judgment also highlighted the difficulties that could arise when seeking to apply the legal requirements under both the Wild Birds Directive and the related Habitats Directive, he said. A number of other Scottish government decisions on wind farm projects are currently being challenged on grounds related to the Wild Birds Directive in the courts, he said.

Sustainable Shetland succeeded in its initial judicial review application against the Scottish ministers in 2013. Lady Clark of Calton ruled in favour of the campaigners on a challenge relating to the interpretation of section 36 of the Electricity Act, but said that she would have upheld the Wild Birds Directive challenge only had the technical challenge failed. The group dropped the section 36 challenge last year, after the Inner House overturned Lady Clark's ruling in its entirety.

The campaigners had argued that the plans would disturb the Shetland Island's population of the whimbrel, a type of wading bird; which accounts for an estimated 95% of the total UK population. The developers of the wind farm had proposed a habitat management plan to the Scottish ministers, which made particular reference to whimbrel as well as broader environmental protection measures. Granting its consent to the project, the Scottish ministers said that the plan could "reasonably be expected to provide some counterbalancing positive benefits", while having little impact on the whimbrel.

In his Supreme Court judgment, Lord Carnwath agreed with the Inner House that in order to discharge its duties, there was no need for the Scottish government to "in effect conduct a full review of their functions under the Birds Directive". Rather, the directive was one of a number of factors to be considered by the ministers when deciding whether to grant consent under the Electricity Act, he said.

"The ministers' functions in this case derived, not from the directive, but from their statutory duty to consider a proposal for development under the Electricity Act 1989," the judge said.

"The directive did not in terms impose any specific requirements in respect of this particular development proposal, but it was rightly accepted as part of the legal background against which its effects needed to be considered ... I agree with the Inner House that although the decision letter did not mention the directive as such, the detailed consideration given to the advice of [statutory consultee Scottish Natural Heritage], with specific reference to its provisions, leaves no serious doubt that it was taken into account, as part of the 'obligations under EU environmental legislation' to which the letter referred," he said.

Planning and environmental law expert Gary McGovern noted that, like the Inner House before it, the Supreme Court had not gone on to look at the nature and extent of a member state's legal obligations under Article 2 of the Wild Birds Directive, which deals with the maintenance of wild bird species "across their natural range".

"As the court acknowledged, Article 2 raises considerable practical difficulties as it applies to wild birds of all kinds, regardless of scarcity and vulnerability," he said. "It seems likely that this question will arise in other cases, and may ultimately require a reference to the Court of Justice of the European Union (CJEU)."