Sustainable Shetland For Judicial Review Of A Decision Of The Scottish Ministers Dated 4 April 2012
| Jurisdiction | Scotland |
| Judge | Lady Clark Of Calton |
| Neutral Citation | [2013] CSOH 158 |
| Docket Number | P698/12 |
| Court | Court of Session |
| Date | 24 September 2013 |
| Published date | 25 September 2013 |
| OUTER HOUSE, COURT OF SESSION [2013] CSOH 158 | |
| P698/12 | OPINION OF LADY CLARK OF CALTON in Petition of SUSTAINABLE SHETLAND Petitioners; for Judicial Review of a decision of the Scottish Ministers dated 4 April 2012 granting consent for the construction and operation of a 103 turbine Viking Wind Farm in Central Mainland, Shetland, as described in Annex 1 of said decision letter ________________ |
Petitioners: Sir Crispin Agnew of Lochnaw QC; Drummond Miller LLP
Respondent: Thomson QC, Sheldon; Scottish Ministers
Third Party: Wilson QC, M McKay; Gillespie Macandrew LLP
24 September 2013
Overview
[1] The petitioners are described as Sustainable Shetland, an unincorporated association, with named officials their vice-chair and secretary. The constitution of Sustainable Shetland is to be found in 6/28 of process. Sustainable Shetland lodged objections, 6/7 of process, to an application by Viking Energy Partnership who are the interested party. The interested party sought consent and deemed planning permission for construction and operation of Viking Wind Farm, Shetland ("the proposed development"). The respondents are the Scottish Ministers. It is their decision, dated 4 April 2012, 6/4 of process, which is the subject of this judicial review.
[2] The decision set out in 6/4 of process granted consent, subject to conditions, to the interested party under section 36 of the Electricity Act 1989 for the construction and operation of Viking Wind Farm on central Shetland comprising inter alia not more than 103 turbines, with a maximum generating capacity of up to 457MW as a wind powered electricity generating station more fully described in Annex 1 of 6/4 of process. The decision also gave a direction under section 57(2) of the Town and Country Planning (Scotland) Act 1997 that planning permission be deemed to be granted, subject to conditions, in respect of the proposed development. Further, said decision letter stated under reference to paragraph 3(2) of Schedule 8 of the Electricity Act 1989 that there was "no need" to hold a public inquiry.
[3] The petitioners in this action of judicial review seek reduction of 6/4 process the said consent, the deemed planning permission and the decision not to hold a public inquiry.
[4] The main statutory and regulatory provisions in domestic law which regulate the general framework for the decision making of the respondents in this case are the Electricity Act 1989 ("the 1989 Act"), the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2000 ("the EIA Regulations 2000"), and the Town and Country Planning (Scotland) Act 1997 ("the 1997 Act"). Regulations relating to applications for consent are set out in the Electricity (Applications for Consent) Regulations 1990 ("the 1990 Regulations").
[5] In relation to the issue of the decision not to hold a public inquiry, the main statutory provisions are section 62(1A) and Schedule 8, paragraphs 2(2) and 3(2) of the 1989 Act.
[6] The main focus of the dispute by the parties before me in relation to the judicial review related to the various grounds of challenge by the petitioners which were set out in the amended petition, 19 of process and competency issues which arose in the course of proceedings.
Procedural History
[7] This case had a difficult procedural history. The case called before me on 29 January 2013 for a four day hearing. I heard submissions from senior counsel for the petitioners on 29 and 30 January 2013. In the course of said submissions, senior counsel for the petitioners made a motion to continue the petition to consider amendment and the introduction of a devolution issue. On 1 February 2013, on the unopposed motion of senior counsel for the petitioners, I allowed the petition to be amended and the amended petition to be received as 19 of process. Answers on behalf of the first respondents and third party were lodged as 14 and 16 of process respectively. Notes of argument from the petitioners were marked as 15 of process and from the respondents and from the interested party as 17 and 18 of process respectively. Thereafter I allowed service to be made on the Advocate General for Scotland and allowed parties to adjust. I was later informed that there was to be no appearance on behalf of the Advocate General.
[8] Parties reconvened on 30 April 2013 to continue oral submissions. On that date, senior counsel for the petitioners continued his submissions which he completed on the morning of 1 May 2013.
[9] Thereafter senior council for the respondents commenced his submissions but competency issues appeared to arise. After substantial delay to allow parties to consider their positions, the hearing recommenced on 3 May 2013. None of the parties wished me to deal separately with the competency issues. The hearing continued but was not concluded in the allocated dates. I permitted a further four days hearing to commence on 11 June with two further days allocated to competency. The hearing finally concluded on 21 June 2013 after a further eight days (not six days as allocated). The competency issues were addressed by counsel on 20 and 21 June I deal with the competency issues in paragraphs [37] to [115] of this opinion.
Summary of history of the proposed development
[10] The original application submitted on 19 May 2009 by the interested party (described in said letter as "a Scottish general partnership between Viking Energy Limited and SSE Viking Ltd") related to 150 turbines and associated works. This was accompanied by various documents including an environmental statement prepared on the instructions of the interested party. An addendum to the application and an addendum to the environmental statement was submitted to the respondents on 30 September 2010 and advertised by the interested party on 1 October 2010. This reduced the number of turbines to 127 with consequential changes to the proposed development. Further documents including four volumes of the Environmental Statement were provided to the respondents.
[11] The proposed development, as amended, in respect of which consent for construction and operation under section 36 of the 1989 Act and deemed planning permission was sought by the interested party for Viking Wind Farm, covered a site area on mainline Shetland of approximately 50 square miles. Said development consisted of 127 wind turbines some 90 metres in height and 145 metres to blade tip. Permission was also sought for some 104 kilometres of associated access tracks of up to 10 metres in width to be reduced in size after construction; quarries and borrow pits to extract 1,470,000 cubic metres of rock by drilling and blasting; excavation of up to 919,310 cubic metres of peat with substantial peat reused; various associated works including electrical substations etc. The disturbance footprint was specified as up to approximately 232 hectares with a permanently affected area of approximately 104 hectares. The proposed development also specified substantial ancillary works during construction to be phased over a five year period. The application is summarised in paragraphs 1.1 to 1.10 of 6/2 of process. It should be noted that the proposed development area as amended consisted of three sectors called Delting (24 turbines) Kergord (46 turbines) and Nesting (57 turbines).
[12] There were many and varied objections to the proposed development and criticisms of the environmental statement both before and after the addendum. A summary of the position adopted by the various organisations and individuals both for and against the development is to be found in 6/2 and 6/4 of process as described by the authors of these documents.
[13] Sustainable Shetland maintained their objection to the proposed development after changes made by the interested party notified on 1 October 2010. They set out detailed responses and evidence about the environment, including the effect on wild birds and particularly whimbrel. Their environmental statement is to be found in 6/8 of process. Their addendum to the objection is 6/9 of process. Their landscape and visual impact addendum is 6/10 of process.
[14] The relevant planning authority is Shetland Islands Council who are a statutory consultee. A report, 6/2 of process, dated 14 December 2010 was prepared by the Director of Planning of Shetland Islands Council for their consideration. The report dealt with various issues over 69 pages and concluded:
"9.1 The Shetland Structure Plan GDS1 (Sustainable Development) states that development will be planned to meet the economic and social needs of Shetland in a manner which does not compromise the ability of future generations to meet their own needs and to enjoy the area's high quality environment. All development must therefore protect environmental assets as defined in the Structure Plan and Local plan, use and conserve resources wisely, and minimise environmental impacts.
9.2 The balance that has to be considered is whether the resultant visual intrusion and potential environmental impacts are considered to be acceptable because of any perceived environmental, economic and social advantages that the development may bring.
9.3 Whilst the Planning Service believes that the development of a wind farm of significant scale could comply with the Development Plan, the applicant has not demonstrated that this development could be undertaken without unacceptable environmental impact. Therefore it is the Planning Service's conclusion that the proposal, as it stands, is contrary to the Development Plan.
9.4 It is recommended that Scottish Ministers take account of the precautionary principle as set out in paragraph 132 of SPP 210, which states: "Planning authorities should apply the precautionary principle where the impacts of a proposed development on nationally or internationally significant landscape or natural heritage resources are uncertain but there is sound evidence for believing that...
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