Sustainable Shetland v Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lord Carnwath,Lord Neuberger,Lord Sumption,Lord Reed,Lord Hodge |
| Judgment Date | 09 February 2015 |
| Neutral Citation | [2015] UKSC 4 |
| Docket Number | No 4 |
| Court | Supreme Court (Scotland) |
| Date | 09 February 2015 |
[2015] UKSC 4
Lord Neuberger, President
Lord Sumption
Lord Reed
Lord Carnwath
Lord Hodge
Appellant
Sir Crispin Agnew QC
Donald Cameron
(Instructed by Richard Buxton Environmental and Public Law Solicitors (as agents for R & R Urquhart LLP, Forres))
Respondent (1)
Malcolm Thomson QC
David Sheldon QC
(Instructed by Scottish Government Legal Directorate Litigation Division)
Respondent (2)
Alisa Wilson QC
Marcus McKay
(Instructed by Gillespie Macandrew LLP)
Heard on 18 December 2014
(with whom Lord Neuberger, Lord Sumption, Lord Reed and Lord Hodge agree)
The appellants, Sustainable Shetland, are an unincorporated association concerned in the protection of the environment of the Shetland Islands. By these proceedings they challenge a consent granted on 4 April 2012 by the Scottish Ministers for the construction of a windfarm. The consent was under section 36 of the Electricity Act 1989, and was accompanied by a direction that separate planning permission was not required (Town and Country Planning (Scotland) Act 1997 section 57(2)). Although the appellants' objections in earlier exchanges had related to the impact of the development on the environment generally, the focus of their challenge in the courts has related to the alleged failure of the ministers to take proper account of their obligations under the Birds Directive, in respect of the whimbrel, a protected migratory bird. Their challenge was upheld by the Lord Ordinary (Lady Clark of Calton) on other grounds which are no longer in issue, but she indicated that she would if necessary have upheld the challenge also under the directive. The ministers' appeal was allowed unanimously by the Inner House.
The proposed windfarm was on a very large scale. In its amended form it would have had 127 turbines (reduced from 150), located in three areas (Delting, Kergord and Nesting), covering a total area of some 50 square miles, of which some 232 hectares would be physically affected. Associated infrastructure would include 104 km of access tracks, and anemometer masts, and borrow pits. The original application was made in May 2009. It was accompanied by an Environmental Statement, as required by the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2000 ( SSI 2000/320).
The whimbrel population of the Shetlands is highly significant in national terms, representing (at 290 pairs on the basis of a 2009 survey) around 95% of the total UK population. Of this some 56 pairs breed in the central mainland area, where the windfarm would be sited, 23 pairs within the development site. 31 pairs breed in the Fetlar Special Protection Area. Between 72 and 108 adult whimbrel from the Shetlands die annually from existing causes. The 2009 survey showed a decline in the Shetlands region over the previous 20 years of 39% overall, but with wide variations across the region; the decline in Central Mainland was only 6%, compared to between 54% and 80% in the Fetlar SPA.
The potential impact on the whimbrel population emerged as an important issue in early objections from, among others, Scottish Natural Heritage ("SNH"). There followed a series of detailed exchanges between SNH and the developers on both the assessment of the likely impact of the development on the whimbrel population and mitigation measures. It is unnecessary to do more than summarise some of the main points. In response to SNH objection, the developers revised their Environmental Statement by submitting a new Addendum, including a chapter "A 11 Ornithology", which dealt in detail with the likely effects on whimbrel. It was said to be based on more than eight years of study, which gave "considerable confidence in the robustness of these assessments". It was acknowledged that the population processes of Shetland whimbrel were "poorly understood", and that, in the absence of previous windfarm developments in areas with breeding whimbrel, the likely impact had to be inferred from knowledge of responses of other related wader species, such as the curlew. It predicted that operational disturbance would result in the long term displacement of 1.8 pairs, which might be able to resettle elsewhere; and a collision mortality rate of 2.1 whimbrel per year.
The Addendum included a Habitat Management Plan ("HMP"), which contained detailed assessment of the factors affecting the whimbrel population, and proposed habitat management actions. For example, the "single most important action" to increase whimbrel breeding success was said to be the control of the likely main nest predator, the hooded crow, over sufficiently large areas during the nesting season. The HMP was said to have
"a high likelihood of more than off-setting any adverse effects of the windfarm and a reasonable likelihood of causing the Shetland whimbrel population to partially and possibly fully recover over the lifetime of the Viking Wind Farm."
Although the revised proposals led SNH to withdraw some of their objections to the proposals, those in respect of whimbrels were maintained. In their letter of 11 February 2011 they referred to a "high likelihood of a significant adverse impact of national interest …". They made specific reference to the EU Birds Directive:
"Whimbrel are subject to certain general provisions of the EU Birds Directive which apply to all naturally occurring birds in the wild. These include articles 2, 3(1), 3(2)(b) and the last sentence of article 4(4). Achieving and maintaining favourable conservation status of the national population is in line with these provisions and obligations. In this case our advice is that the proposed Viking wind farm is highly likely to result in a significant adverse impact on the conservation status of the national population of whimbrel."
They expressed doubts as to the likely success of the HMP, given the "unproven and experimental" nature of some of the proposed mitigation measures, and the "scale and location of the project" which were not comparable to other mainland restoration sites. In later correspondence they described the ornithological assessment as "associated with a high degree of uncertainty in several critical respects". They disagreed with the predicted collision mortality rate, which they put at 4.2 for 127 turbines, or 3.7 if the Delting turbines were removed. They welcomed the HMP as offering "the possibility of significant biodiversity benefits" and as "an excellent opportunity to explore various habitat management methods" as yet untested in the Shetlands; but advised that it contained a "qualitative assurance which cannot be relied on with certainty to significantly mitigate these impacts". They regretted that in spite of the significant efforts made in cooperation with the developers they had been unable to resolve all their concerns.
The Scottish Ministers gave their decision by letter dated 4 April 2012. They recorded the representations of various consultees, statutory and non-statutory (including those of SNH and RSPB, relating to effects on birds). They also noted the receipt of a total of 3881 public representations, of which 2772 were objections and 1109 were in support of the development; the objections "raised concerns on a number of subjects including habitat, wildlife, visual impact and infrastructure". In view of the "apparently insurmountable aviation issues" associated with the 24 turbines in the Delting area, it would not be appropriate for those to be included in any consent, but there remained the option of granting consent for the remaining 103 turbines.
The letter stated that the ministers had had regard to "their obligations under EU environmental legislation" and to "the potential for impact on the environment, in particular on species of wild birds". It noted that the peatland ecosystem was in serious decline, and that the restoration proposed by the Habitat Management Plan would "offer benefits to a whole range of species and habitats". It was "far more ambitious and expansive" than plans accompanying previous windfarm proposals encompassing an area in total of 12,800 hectares, and had been welcomed by SNH as offering the possibility of significant biodiversity benefits.
In a section headed "Whimbrel" the letter discussed the respective submissions and the supporting evidence on this subject. The estimate of 3.7 collision deaths per year was regarded as "very small" when considered in the context of the 72–108 annual deaths from other causes. Of the view of SNH and others that the development would result in a "significant impact of national interest", the letter commented:
"Ministers are not satisfied that the estimated impact of the development on whimbrel demonstrates such a level of significance. In addition, Ministers consider that the potential beneficial effects of the Habitat Management Plan (HMP) can reasonably be expected to provide some counterbalancing positive benefits."
It was accepted that the beneficial effects of the HMP could not be predicted with certainty, for the reasons given by SNH, but the letter continued:
"Ministers note that the HMP will take one third of the UK population of whimbrel under active management, and will target some 100 whimbrel 'hotspots'. Based on the detailed environmental information provided in the environmental statement and addendum, Ministers are satisfied that the measures proposed by the HMP are likely to have a positive value to the conservation status of the whimbrel. These measures include a variety of management techniques, including predator control, habitat restoration, protection and management. Ministers are satisfied that an HMP which includes significant...
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