Reclaiming Motions In The Petitions By The Royal Society For The Protection Of Birds Against The Scottish Ministers And (first) Inch Cape Offshore Ltd; (second) Neart Na Gaoithe Offshore Wind Ltd; And (third) Seagreen Wind Energy Ltd For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lord Menzies,Lord President,Lord Brodie |
| Judgment Date | 16 May 2017 |
| Neutral Citation | [2017] CSIH 31 |
| Court | Court of Session |
| Date | 16 May 2017 |
| Published date | 16 May 2017 |
| Docket Number | P28/15 |
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2017] CSIH 31
P28/15
Lord President
Lord Menzies
Lord Brodie
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD PRESIDENT
in the Reclaiming Motions
in the Petitions by
THE ROYAL SOCIETY FOR THE PROTECTION OF BIRDS
Petitioners and Respondents
against
THE SCOTTISH MINISTERS
Respondents and Reclaimers
and
(FIRST) INCH CAPE OFFSHORE LTD; (SECOND) NEART NA GAOITHE OFFSHORE WIND LTD; and (THIRD) SEAGREEN WIND ENERGY LTD
Interested Parties and Reclaimers
for
Judicial Review
Petitioners and Respondents: Findlay, van der Westhuizen; Campbell & McCartney, Glasgow
Respondents and Reclaimers: Mure QC, Charteris; Scottish Government Legal Directorate
Interested Parties and Reclaimers: (First) Thomson QC; CMS Cameron McKenna Nabarro Olswang LLP
(Second) Armstrong QC; Shepherd & Wedderburn LLP
(Third) Wilson QC, McKay QC; Gillespie Macandrew LLP
16 May 2017
Introduction
[1] On 10 October 2014 the interested parties obtained sundry consents from the respondents to enable them to create and operate electricity generating stations, in the form of substantial wind farms some miles distant into the North Sea, in locations ranging from Anstruther in the south to Montrose in the north. A map, showing the location of the four wind farms is shown below. It also depicts certain Special Protection Areas (SPAs) for seabirds, namely Fowlsheugh, near Stonehaven, and the Forth Islands. They are part of the Natura 2000 ecological network (infra) and hence Special Conservation Areas (SCAs) for marine mammals and fish.
[2] The original plans were for wind farms consisting of 213 (Inch Cape), 125 (later 90) (NNG) and two sets of 75 (Seagreen Alpha and Bravo) turbines. The petitioners objected to the wind farms, broadly on the basis of potential adverse impacts on certain species of migratory seabird living in the SPAs. In the course of the consent process, the plans were substantially modified to, respectively, 110 (Inch Cape), 75 (NNG) and two sets of 75 turbines (Seagreen). The modification was thus from 488 to 335.
[3] The litigation concerns, first, whether, in granting the consents, the respondents acted in a procedurally incorrect manner and, in particular, whether they took into account material upon which they ought to have allowed the petitioners to comment. Secondly, it concerns whether the consents involved findings of scientific fact or methodology containing errors which are susceptible to judicial review. The scope of the court’s powers of review are placed into sharp focus. Thirdly, the petition questions whether the respondents ought to have treated certain draft SPAs as if they had been approved. Finally, there is a challenge based upon the adequacy of the respondents’ reasoning.
[4] This opinion is, like the petition, the Lord Ordinary’s opinion and the submissions, unavoidably peppered with acronyms which, although explained in the opinion, are best set out in limine for ease of reference:
| AA | appropriate assessment |
| ABC | Acceptable Biological Change |
| ruABC | reduced uncertainty method of ABC |
| BTO | British Trust for Ornithology |
| CEH | Centre for Ecology and Hydrology |
| CPS | Counterfactual Population Size |
| CRMs | Collision Risk Models |
| EIA | Environmental Impact Assessment |
| ES | Environmental Statement |
| HRA | Habitats Regulation Appraisal |
| JNCC | Joint Nature Conservation Committee |
| MS | Marine Scotland |
| MS-LOT | Marine Scotland Licensing Operations Team |
| MSS | Marine Science Scotland |
| MSS AB | MSS Advisory Board |
| NNG | The second interested parties |
| PVA | Population Viability Analyses |
| SAB | Science Advisory Board |
| SCAs | Special Conservation Areas |
| SEIS | Supplementary Environmental Impact Statement |
| SEPA | Scottish Environment Protection Agency |
| SNH | Scottish National Heritage |
| SNCBs | Statutory Nature Conservation Bodies |
| SPAs | Special Protection Areas |
| dSPA | draft SPA |
| pSPA | proposed SPA |
On occasions, to aid understanding, the acronym is not used alone and the full description is repeated.
Legislation
[5] There are a variety of Directives and Regulations involved in the case which, in tabular form, are broadly as follows:
| Directive | Implementing Regulation |
| Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment (the original EIA Directive) consolidated by: Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment (the EIA Directive) amended by: Directive 2014/52/EU on the assessment of the effects of certain public and private projects on the environment (the new EIA Directive)
| The Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2000 (the EIA Regulations 2000) and The Marine Works (Environmental Impact Assessment) Regulations 2007 (the Marine Works Regulations 2007) |
| Directive 79/409/EEC on the conservation of wild birds (the old Wild Birds Directive 1979) consolidated by: Directive 2009/147/EC on the conservation of wild birds (the Wild Birds Directive)
| The Conservation (Natural Habitats, &c.) Regulations 1994 (the Habitats Regulations 1994) consolidated by: The Conservation of Habitats and Species Regulations 2010 (the Habitats Regulations 2010) and The Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2007 (the Offshore Marine Regulations 2007)
|
| Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora (the Habitats Directive)
| The Conservation (Natural Habitats, &c.) Regulations 1994 (the Habitats Regulations 1994) consolidated by: The Conservation of Habitats and Species Regulations 2010 (the Habitats Regulations 2010) and The Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2007 (supra)
|
| Directive 2003/4/EC on public access to environmental information
| Environmental Information (Scotland) Regulations 2004 (the EIS Regulations) and The Environmental Information Regulations 2004
|
The Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2000
[6] Section 36(1) of the Electricity Act 1989 provides that the respondents’ consent is required before a generating station, of the types proposed by the interested parties, can be...
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