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9 February, 2015

Supreme Court unanimously dismisses challenge to Shetland windfarm plans

In the case of Sustainable Shetland v The Scottish Ministers & Anor (Scotland) [2015] UKSC 4, the UK Supreme Court has unanimously dismissed an appeal against the decision by the respondents to grant consent for the construction and operation of a wind farm despite the impact it may have on protected migratory birds, in particularly on whimbrel. The appellant alleged that the Ministers had failed to take proper account of the Birds Directive (2009/147/EC), particularly arts 2 & 4(2), in respect of the whimbrel. The Lord Ordinary upheld their challenge on other grounds but indicated that, if necessary, she would have upheld the challenge under the Directive. The Inner House unanimously allowed the Ministers’ appeal. In dismissing the appeal the Supreme Court stated that although the respondents’ decision letter had not mentioned the Birds Directive as such, the detailed consideration given to the Scottish National Heritage’s advice left no serious doubt that it was taken into account. The respondents’ duty was not to establish the precise scope of art 2 duties to determine an appropriate level for the whimbrel but to determine whether to grant consent by taking into account all of the material considerations, of which the Directive formed part. Acting for the successful respondents were Ampersand’s Malcolm Thomson QC acted for the first respondent and Ailsa Wilson QC and Marcus McKay acted for the second respondent. The full judgment of the UKSC can be found here, the press summary here. See the judgment being handed down on the UKSC YouTube channel here.

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