Ministerial Duties under the Wild Birds Directive and Judicial Review

Document Cited authorities (12) Cited in Related
DOI10.3366/elr.2015.0307
Published date01 September 2015
Date01 September 2015
Author
Pages424-428
<p>The petitioner in <italic>Sustainable Shetland v Scottish Ministers</italic> made two main arguments in support of its application for judicial review of a decision to authorise construction of a wind farm in the Shetland Islands. The first, that the Ministers were not competent to award a licence to generate under <span class="vid_spn">Section 36 of the Electricity Act 1989</span>, was examined by the author in an earlier edition of <italic>the Edinburgh Law Review</italic>.<xref ref-type="fn" rid="fn1"><sup>1</sup> </xref><fn id="fn1"><label>1</label> <p>O Woolley, “Interpreting <span class="vid_spn">section 36 of the Electricity Act 1989</span>: has clarity been restored?” (2015) 19 EdinLR 124.</p> </fn> This note considers the second: that the decision was made in error of law due to the Ministers' failure to take account of their duties under the <a href="https://eu.vlex.com/vid/council-directive-of-2-843338224">Wild Birds Directive</a> (<a href="https://eu.vlex.com/vid/council-directive-of-2-843338224">WBD</a>).<xref ref-type="fn" rid="fn2"><sup>2</sup> </xref><fn id="fn2"><label>2</label> <p><a href="https://eu.vlex.com/vid/directive-2009-147-ec-843220787">Directive 2009/147/EC</a> 2010 OJ L 20/7 of the European Parliament and of the Council on the conservation of wild birds (codification).</p> </fn> Lady Clark of Calton in the Outer House reduced the Ministers' decision on the competence ground, but advised that she would also have accepted the petitioner's argument concerning the <a href="https://eu.vlex.com/vid/council-directive-of-2-843338224">WBD</a>.<xref ref-type="fn" rid="fn3"><sup>3</sup> </xref><fn id="fn3"><label>3</label> <p><italic>Sustainable Shetland v Scottish Ministers</italic> <a href="https://vlex.co.uk/vid/sustainable-shetland-v-scottish-802717789">[2013] CSOH 158</a>, <a href="https://vlex.co.uk/vid/sustainable-shetland-v-scottish-802717789">2013 SLT 1173</a> (henceforth “<italic>Sustainable Shetland OH</italic>”).</p> </fn> However, the error of law argument was rejected on appeal to the Inner House<xref ref-type="fn" rid="fn4"><sup>4</sup> </xref><fn id="fn4"><label>4</label> <p><italic>Sustainable Shetland v Scottish Ministers</italic> <a href="https://vlex.co.uk/vid/sustainable-shetland-v-scottish-802713949">[2014] CSIH 60</a>, <a href="https://vlex.co.uk/vid/sustainable-shetland-v-scottish-802713949">2014 SLT 806</a> (henceforth “<italic>Sustainable Shetland IH</italic>”).</p> </fn>, and it was also rejected by the Supreme Court in its judgment of February 2015 although the Court disagreed with the reasoning of the Inner House in one important respect.<xref ref-type="fn" rid="fn5"><sup>5</sup> </xref><fn id="fn5"><label>5</label> <p><italic>Sustainable Shetland v Scottish Ministers</italic> [2015] UK SC 4 (henceforth “<italic>Sustainable Shetland SC</italic>”).</p> </fn></p> <p>The following sections of this note review the circumstances giving rise to the claim and the analyses of the error of law argument by the Outer and Inner Houses and the Supreme Court. It concludes with a review of the relevant provisions of the <a href="https://eu.vlex.com/vid/council-directive-of-2-843338224">WBD</a>, and considers whether fuller examination of them by the Supreme Court could have led to a different outcome.</p> VIKING WIND, WHIMBREL, AND THE <a href="https://eu.vlex.com/vid/council-directive-of-2-843338224">WILD BIRDS DIRECTIVE</a>

The case concerned a proposal for the construction of Viking Wind, a very large wind farm in the Shetland Islands. Shetland hosts 95% of the UK's population of the whimbrel, a migratory bird that visits the Islands annually to breed. Scottish Natural Heritage raised concerns as a consultee that the project would have a negative impact on breeding pairs of whimbrel at the development site. The developers responded to these concerns by preparing a habitat management plan, but Scottish Natural Heritage maintained its position, arguing that there was no evidence that the proposals for improving the condition of the whimbrel's habitat would compensate for the predicted impact of the wind farm. The Scottish Ministers authorised the project despite this opposition, stating in their decision letter that they were not satisfied, having considered the various representations on the topic, that the estimated impact would be significant. They also accepted the developer's claim that the habitat management plan could reasonably be expected to provide positive counterbalancing benefits for the whimbrel population.6

Submissions by Scottish Natural Heritage and the decision letter are available at http://www.gov.scot/Topics/Business-Industry/Energy/Infrastructure/Energy-Consents/Applications-Database/Wind/Viking-Index .

The decision letter advised that the Scottish Ministers had had regard to their obligations under EU environmental legislation, but did not refer to the WBD.7

Sustainable Shetland SC para 9.

Sustainable Shetland argued that this evidenced a failure by the Ministers to take account of their duties under articles 2 and 4 of the...

Get this document and AI-powered insights with a free trial of vLex and Vincent AI

Get Started for Free

Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex