Reclaiming Motion In Petition Sustainable Shetland Against The Scottish Ministers And Viking Energy Partnership For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lord Brodie,Lord Menzies,Lord President |
| Judgment Date | 09 July 2014 |
| Neutral Citation | [2014] CSIH 60 |
| Court | Court of Session |
| Published date | 09 July 2014 |
| Date | 09 July 2014 |
| Docket Number | P698/12 |
| FIRST DIVISION, INNER HOUSE, COURT OF SESSION
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|
| [2014] CSIH 60 | |
| Lord President Lord Menzies Lord Brodie
| P698/12 OPINION OF THE COURT delivered by LORD BRODIE
in the reclaiming motion
in the petition of
SUSTAINABLE SHETLAND Petitioners and Respondents;
against
THE SCOTTISH MINISTERS Respondents and Reclaimers;
and
VIKING ENERGY PARTNERSHIP Interested Party:
for judicial review of a decision of the Scottish Ministers dated 4April 2012 _______________
|
|
For petitioners and respondents: Sir Crispin Agnew QC; Drummond Miller LLP
For respondents and reclaimers: Thomson QC, Sheldon; Scottish Government Legal Directorate
For interested parties: Viking Energy Partnership: Wilson QC, M McKay; Gillespie Macandrew LLP
9 July 2014
Introduction
The application for and grant of section 36 consent
[1] By application dated 19 May 2009 and addendum to the application dated 30 September 2010, the Viking Energy Partnership (VEP), applied to the Scottish Ministers for:
(i) Consent under section 36 of the Electricity Act 1989 (the Electricity Act) for construction and operation of the Viking Wind Farm on central Shetland, with a generation capacity of up to 457 MW;
(ii) A direction under section 57(2) of the Town and Country Planning (Scotland) Act 1997 (the Planning Act) that planning permission be deemed to be granted in respect of that generating station and any ancillary developments.
The proposed development covered an area on mainland Shetland of approximately 50 square miles. As initially proposed, the principal development involved the erection of 127 wind turbines in three sectors: Delting (24 turbines), Kergord (46 turbines) and Nesting (57 turbines). Associated works included 104 kilometres of access tracks; the making of quarries and borrow pits; excavation of up to 919,310 cubic metres of peat with substantial peat reused; and the construction of electrical substations. The disturbance footprint was specified as up to about 232 hectares with a permanently affected area of about 104 hectares. Works were to be phased over a five-year period.
[2] The proposed development was an EIA development for the purposes of the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2000 (the EIA Regulations). Accordingly, the Scottish Ministers could not grant section 36 consent without consideration of environmental information in the form of an environmental statement.
Objection by Sustainable Shetland
[3] Among the bodies which objected to the proposed development was Sustainable Shetland. Its objection was that there would be adverse visual, landscape and environmental impacts on Shetland; that it was contrary to the development plan; and that relevant decision-making was flawed by reason of a conflict of interest on the part of members of Shetland Islands Council, the planning authority, by reason of its involvement with Viking Energy Limited, one of the partners in VEP, through the Shetland Charitable Trust. Sustainable Shetland represented to the Scottish Ministers that if the application for section 36 consent was not to be immediately refused the matter should be referred to a public local inquiry.
The representations by Scottish Natural Heritage relating to the whimbrel
[4] In its letter of 24 July 2009, SNH intimated objections to the proposed development, inter alia, in respect of ornithological interests by reason of the magnitude of the predicted impacts on a number of bird species, including the whimbrel. The letter included the following:
“In respect of ornithological interests, SNH objects due to the magnitude of the predicted impacts on red-throated diver, merlin, golden plover, dunlin, whimbrel, arctic skua, lapwing, curlew and great skua. From the collision risk and displacement information presented in the [environmental statement (‘ES’)] SNH consider that the favourable conservation status of these species is likely to be adversely affected over the long term at a regional scale, with red-throated diver and whimbrel also likely to be adversely affected at a national scale. [para 2.3] …”
Thereafter the developers adjusted the application. In light of that, SNH removed its objections on all grounds other than the impact on whimbrel and on landscape and visual amenity. By letter dated 11 February 2011, SNH clarified its change of position:
“Ornithology: we object to the proposal as submitted due to the high likelihood of a significant adverse impact of national interest on the favourable conservation status of the national population of whimbrel, considered under the EU Birds Directive as a regularly occurring migratory species and listed on Schedule 1 of the Wildlife & Countryside Act 1981 (as amended in Scotland). We do not object but provide advice in relation to adverse impacts on the regional conservation status of 4 EU Birds Directive Annex I species, and 3 other regularly occurring migratory species, all of which are also of conservation concern …
2. Advice in respect of whimbrel and the EU Birds Directive
Whimbrel [is] 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.”
The Habitat Management Plan
[5] As an appendix to its environmental statement addendum, submitted in support of its application for section 36 consent, VEP included a habitat management plan (HMP). The HMP explains its purpose as follows:
“The purpose of this Habitat Management Plan (HMP) is to provide both the context and the planned actions to offset and compensate for potential remaining adverse effects (following avoidance and minimisation) of the construction, operation and decommissioning of the Viking Wind Farm. A secondary objective of the HMP is to alleviate the ecological impacts arising from past and present land management practices with the intention of conserving and restoring native habitats within the vicinity of the Viking Wind Farm in such a way that the Viking Wind Farm development will provide a net long-term ecological gain both during and beyond the life of the wind farm.”
The HMP contained proposals specific to the whimbrel and predicted that implementation of those proposals would lead to improved whimbrel breeding success, increased whimbrel breeding densities, and protection and recognition of the importance of the “hot spots” for whimbrel thereby lessening the likelihood of insensitive incidental management.
Decision of the Scottish Ministers
[6] In terms of paragraph 3(2) of Schedule 8 to the Electricity Act, where the Scottish Ministers are not required by virtue of paragraph 2(2) to cause a public inquiry to be held (because the planning authority does not object to the section 36 consent) but objections have been sent to the Scottish Ministers by other parties, the Ministers must consider these objections, together with all other material considerations, with a view to determining whether a public inquiry should be held and, if they think it appropriate to do so, cause a public inquiry to be held.
[7] The Scottish Ministers decided not to cause a public inquiry to be held. By decision letter dated 4 April 2012, they granted consent under section 36 of the Electricity Act to VEP for the proposed development, with a direction in terms of section 57(2) of the Planning Act that separate planning permission was not required.
The application for judicial review
[8] On 4 July 2012, Sustainable Shetland applied for judicial review seeking reduction of the Scottish Ministers’ decision on the ground that the Ministers had acted unlawfully, and in any event unreasonably, in failing to cause a public inquiry to be held and, separately, that the Ministers had failed properly to take into account their duties under Directive 2009/147/EC (the Wild Birds Directive) in respect of the whimbrel.
[9] On 7 October 2013, for the reasons set out in her Opinion dated 24 September 2013, the Lord Ordinary reduced the decision. She rejected the contention that the Scottish Ministers had acted unlawfully or unreasonably in not causing a public inquiry to be held. However, she held that as VEP had not been granted a licence in terms of section 6 of the Electricity Act or an exemption in terms of section 5, its application for section 36 consent was incompetent, and accordingly that the Scottish Ministers had no power to grant the consent. She therefore upheld the present respondent’s plea to that effect. She indicated that had she not sustained that plea she would nevertheless have reduced the consent by reason of the Scottish Ministers’ failure to take proper account of their obligations under the Wild Birds Directive, although she would not have held that the decision was ultra vires as being incompatible with European Union law.
The grounds of appeal
[10] The parties were agreed that the reclaiming motion raised two issues. The first was whether, on a proper interpretation of the Electricity Act, an application for section 36 consent could competently be made only by a person who held a licence under section 6 or an exemption under section 5 (the competency issue). The second was whether, having regard to the information before them, the Scottish Ministers had failed to engage with their obligations under the Wild Birds Directive (the whimbrel issue).
The relevant legislation
The Electricity Act 1989
4.— Prohibition on unlicensed supply etc.
(1) A person who—
(a) generates electricity for the purpose of giving a supply to any premises or enabling a supply to be so...
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