Petition Of The Royal Society For The Protection Of Birds For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lord Stewart |
| Neutral Citation | [2016] CSOH 103 |
| Year | 2016 |
| Published date | 19 July 2016 |
| Date | 18 July 2016 |
| Court | Court of Session |
| Docket Number | P28/15 |
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 103
P28/15
OPINION OF LORD STEWART
in the Petition of
THE ROYAL SOCIETY FOR THE PROTECTION OF BIRDS
Petitioner;
for
Judicial Review of (1) a decision of the Scottish Ministers dated 10 October 2014 granting consent for the construction of the Inch Cape Offshore Wind Farm in terms of the Electricity Act 1989 section 36 and (2) a consent decision of the Scottish Ministers dated 15 September 2014 for the Inch Cape Offshore Wind Farm in terms of the Marine Works (Environmental Impact Assessment) Regulations 2007 reg. 22
and Answers for
THE SCOTTISH MINISTERS
Respondents;
and
INCH CAPE OFFSHORE LIMITED
Interested Party
Petitioner: James Findlay advocate, Laura-Anne van der Westhuizen advocate; Campbell & McCartney
Respondents: Mure QC, Ruth Charteris advocate; Scottish Government Legal Directorate
Interested party: Thomson QC; CMS Cameron McKenna
Seagreen Wind Energy Limited: Ailsa Wilson QC, Marcus McKay advocate; Gillespie Macandrew LLP
Neart na Gaoithe Offshore Wind Limited: MacKenzie solicitor advocate; Shepherd & Wedderburn LLP
18 July 2016
[1] This is a challenge directed at two of the several decisions by the Scottish Ministers which together give, or support authorisation for a marine electricity generating project to be known as the Inch Cape offshore wind farm. The Inch Cape offshore wind farm is proposed to be sited in the approaches to the Tay estuary about fifteen kilometres, at the nearest point, from the Angus coast. The consented proposal is for 110 turbines arrayed in an area of 150 kms2 with a generating capacity of 784 MW. The estimated life of the generating station is 25 years.
[2] The challenge is brought by way of Petition for judicial review. The petitioner is the Royal Society for Protection of Birds, Scotland [“the RSPB”]. The objects of the RSPB are the conservation of wild birds and their habitats. The RSPB has concerns about the Inch Cape project and three other offshore wind farm projects in the Forth and Tay area. The main concerns relate to the impact on certain regularly occurring migratory wild bird species and their protected habitat populations. The species are, most importantly, Atlantic puffin (fratercula arctica), northern gannet (morus bassanus) and black-legged kittiwake (rissa tridactyla). Impacts on guillemot (uria aalge) and razorbill (alca torda) have also been mentioned.
[3] The risks to these species arise, to different degrees, from collision, displacement and barrier effects. “Collision”, that is with wind turbine rotors in motion, equates with mortality. “Displacement” means the displacement of birds from foraging areas within projected development sites. “Barrier effects” signifies the avoidance of developments in flight, including on foraging flights to and from breeding colonies. Displacement and barrier effects may entail extra energy costs and consequences for body mass, adult survival, nest attendance and chick provisioning. The habitats and hosted species of greatest importance for present purposes are Forth Islands (Inchmickery, May, Fidra, the Lamb, Craigleith, Bass, Long Craig) with two kilometre marine extensions, which hosts puffin, gannet, kittiwake, guillemot and razorbill colonies, and Fowlsheugh, a 10 hectare site on the Angus coast south of Stonehaven with a two kilometre marine extension, which hosts kittiwake, guillemot and razorbill colonies.
[4] Forth Islands and Fowlsheugh are classified as special protection areas [SPAs] for the conservation of the bird species populations mentioned, in terms of the Birds Directive and the Habitats Directive [originally the Birds Directive 79/409/EEC now the Birds Directive 2009/147/EC etc on the conservation of wild birds; the Habitats Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora]. Forth Islands SPA was first classified on 25 April 1990; the site was extended to include Long Craig on 13 February 2004; and the marine extensions took effect on 25 September 2009. Fowlsheugh SPA was classified on 31 August 1992; and the marine extension took effect on 25 September 2009 [6/40; 6/41]. The habitats are part of the network of “Natura 2000” SPAs and special conservation areas [SCAs] designated as being sites of European importance in terms of the Habitats Directive 92/43/EEC art. 3(1). The conservation objectives of each of the SPAs, as defined by Scottish Natural Heritage, include “ensuring the long-term maintenance of the population of each qualifying bird species as a viable component of the SPA” [6/4, Appropriate Assessment, 7, § 1c, “Conservation objectives for qualifying species”; 6/37, affidavit of C Nathan].
[5] In these proceedings the key environmental issue in terms of the applicable legislation is about the effects, on protected site populations, of the Inch Cape project “either alone or in combination with other... projects”. The other offshore wind farm projects of primary concern are Seagreen Alpha, Seagreen Bravo and Neart na Gaoithe, the latter meaning, according to the developers, “power of the wind” [cf. Neart nan Gleann, “power from the glens”, the motto of the old North of Scotland Hydro Electric Board]. The Seagreen wind farms are proposed to be sited in the approaches to the Tay estuary 25 kilometres from the Angus coast. The Neart na Gaoithe wind farm is proposed to be sited in the approaches to the Forth estuary about fifteen kilometres east of Fife Ness. The scale of the projects is illustrated in various ways. Counsel for Neart na Gaoithe states that the 75 turbines now proposed for that project will have the capacity to generate electricity for all the homes in Edinburgh, 325,000 households. The proposed wind farm combined arrays of 335 turbines generating up to 2.3 GW, all projects [6/4, table 1], would stretch, although not continuously, for a distance of about 45 kilometres south to north. According to Scottish Natural Heritage the visual impact will be apparent from Dunbar in the south to St Cyrus in the north. The authorisations for those other projects are challenged by the RSPB in separate petitions on similar grounds. The Scottish Ministers are the respondents to all four petitions. The Inch Cape, Seagreen Alpha and Bravo, and Neart na Gaoithe developers answer the respective petitions as interested parties. There is a location map between pages 4 and 5 of the hard copy Opinion showing the locations of the Fowlsheugh and Forth Islands SPAs, the locations of the Inch Cape, Seagreen Alpha, Seagreen Bravo and Neart na Gaoithe projects and the area covered by and boundaries of the draft Forth & Tay marine special protection area. A colour PDF of the location map can be found here.
[6] I heard oral submissions on behalf of the RSPB, petitioner, the Scottish Ministers [“the ministers”], respondents, and on behalf of the interested parties in this case, Inch Cape, and the interested parties in the other cases, Seagreen, in respect of their two projects Alpha and Bravo, and Neart na Gaoithe. This happened in a conjoined hearing over eight days from 28 May to 5 June 2015 with further written submissions being received, by agreement, up to 7 July 2015. The order in which I have just listed the interested parties is not the order in which they made representations at the hearing. I am treating the petition directed against the Inch Cape project decisions as the lead petition because, at the hearing, parties worked from the Inch Cape pleadings and the Inch Cape decision documents [P28/15, 6/1—6/4]; and that is why I have listed Inch Cape as the first of the interested parties. I was told that the Inch Cape material is representative. The pleadings in the Inch Cape case alone amount to 105 pages. The list of authorities cites 114 legislative instruments, case reports and guidance documents. I was referred by parties to an additional case report, R (on the application of Champion) v North Norfolk DC [2015] 1 WLR 3710, by email on 22 March 2016. There was also email correspondence about the case European Commission v Bulgaria (Kaliakra and Belite Skali) (C‑141/14) ECLI:EU:C:2016:8, 14 January 2016, which concluded with the parties’ email of 6 May 2016. There are 192 pages of written argument. All parties adopted their written notes of argument in oral submissions. Having made avizandum on the whole submissions, oral and written, I have now decided to grant the petition and to reduce the decisions complained of so that the decisions can be re-made properly. There are separate Opinions in the other cases, also issued today. The result is the same.
The applications, the processes and the decisions
[7] The wind farm projects need three kinds of authorisation, namely a declaration in terms of the Electricity Act 1989 (as amended) section 36A as respects rights of navigation through the project in question; two marine licences in terms of the Marine (Scotland) Act 2010 section 21 etc, for the wind farm itself and for associated transmission works offshore respectively, to permit depositing substances and objects, and constructing works, in the sea; and a consent in terms of the Electricity Act 1989 section 36 for the construction and operation of “a generating station”.
[8] Inch Cape made two sets of applications for the authorisations with a view to splitting the project at some future date into two entities. The applications were processed and granted as one set on the basis that permission to assign authorisations for all or part of the project can be applied for in future. In relation to each type of authorisation I shall refer to “the application” singular.
Electricity Act 1989 s. 36A declarations
[9] The application as respects navigation rights in terms of the Electricity Act 1989 (as amended) section 36A and the declaration which followed are non-contentious in these proceedings and I shall not mention them again.
Marine (Scotland) Act 2010 s. 21 licences and Marine Works EIA...
To continue reading
Request your trial
-
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
...Ordinary (Stewart), on 26 May, and 2, 4 and 5 June 2015, on 18 July 2016 the Lord Ordinary granted decrees of declarator and reduction ([2016] CSOH 103; [2016] CSOH 104; [2016] CSOH 105; [2016] CSOH 106). The respondents and interested parties reclaimed against the decision to the Inner Hou......
-
Summary Application By Coastal Regeneration Alliance Limited Against Scottish Ministers And Scottish Power Generation Limited
...could be underground. [26] Mr Campbell referred in passing, for its facts, to a recent case (RSPB v Scottish Ministers and another [2016] CSOH 103) in which planning consent for the offshore wind farm had been refused. This may, he submitted, show that the commercial development of these si......