RSPB wins legal challenge to put offshore wind farms on hold

The Royal Society for the Protection of Birds (RSPB), a bird conservation charity has successfully challenged plans to develop four offshore wind farms in the Firth of Forth and Firth of Tay, under four separate petitions for judicial review.

Lord Stewart heard that the proposed wind farms of Inch Cape, Seagreen Alpha, Seagreen Bravo and Neart na Gaoith planned to develop a combined 335 turbines with the capacity to generate up to 2.3GW of green electricity, but RSPB raised concerns about the impact on migratory wild bird species and their protected habitat population, including Atlantic puffins, northern gannets and black-legged kittiwakes, as well as guillemots and razorbills.

It was held that the Scottish Ministers had failed to comply with their obligations under the Electricity Works (Environmental Impact Assessment) (Scotland) Amendment Regulations, in that they had failed to consult on environmental information about the projects and made their decision “unlawfully” taking account of unconsulted-on information.

He also held that the “appropriate assessment”, a prerequisite of the Electricity Act 1989 section 36 consent decision, was flawed in that it applied the “wrong test” in relation to ornithological risk assessment.

Further, the ministers were in “breach of their EU law obligation” by refusing or delaying to classify the Outer Firth of Forth and Tay Bay Complex as a marine special protection area (SPA), and that, notwithstanding the non-classification of the Forth & Tay SPA the ministers failed to take into account the “protection of conservation interests” of the Forth & Tay draft marine SPA (dSPA) in making their decisions.

As a result, the decisions were reduced.

In the substantive written opinion, which concerned the Inch Cape project, Lord Stewart said: “In my view the ministers’ Inch Cape section 36 decision is seriously flawed. The flaw is not simply a procedural irregularity: it is substantive; and the decision is ultra vires.

“If the decision is not substantively flawed and ultra vires, the procedural irregularity is of such seriousness that the decision has to be reduced in any event. If the irregularity is not of such seriousness, I say that the decision has to be reduced because substantial prejudice cannot be ruled out, the burden being on the ministers and the interested party, Inch Cape, in this connection.

“The foregoing is subject to discretionary considerations that might argue against quashing the section 36 decision by decree of reduction: but the present case is not one in which the court, having regard to the nature of the flaw and weighing the balance of prejudice and other relevant circumstances, can properly exercise its discretion to refuse the remedy sought by the RSPB. That is my assessment.

“The section 36 decision is ultra vires on the view that the ministers have not merely omitted to consult on information which they are otherwise entitled to take into account: they have made the decision on the basis of new information which, because unconsulted-on, as I read the Electricity Works EIA Regulations reg. 4(2), the ministers are disempowered from considering.

“This is not a case where it is possible to contend that there has been substantial compliance notwithstanding a procedural lapse. The new information wrongly taken into consideration is apparently determinative. No reason has been advanced for thinking that there would still have been a section 36 consent if the new, unconsulted-on information not been fed into the Electricity Works EIA Regulations process.”

He also ruled that the consent decision under the Marine Works Environmental Impact Assessment Regulations was “flawed” and should be “quashed”.

As to the attack on the “appropriate assessment” of the impact on affected species, Lord Stewart said the Marine Scotland Licensing Operations Team was “not entitled to conclude that the Inch Cape project in combination with the other Forth and Tay wind farm projects will not adversely affect the site integrity of the Fowlsheugh and Forth Islands SPAs with respect to kittiwake, gannet and puffins”.

“If the ‘appropriate assessment’ is flawed, the development consents in terms of the Electricity Act 1989 and the Marine (Scotland) Act 2010 are also flawed”.

In relation to the EU law challenge on the failure to classify, or delay in classifying the Forth and Tay area as a marine special protection area (SPA), the judge held while there was “no breach” of the Birds Directive, the ministers had “unlawfully omitted” to take into account the terms of the draft d(SPA) in exercising their decision-making functions, and observed that the site “deserves environmental protection”.

Lord Stewart concluded: “I shall sustain the RSPB’s first plea-in-law quoad procedural irregularity (but not unfairness), the second plea-in-law, which relates to ‘an inadequate et separatim incorrect factual basis’ of the decision(s) and the third plea-in-law which focuses the complaints of unlawfulness, ultra vires actings and Wednesbury unreasonableness. I shall also sustain the RSPB’s fourth plea-in-law, which is directed at the reasoning of, essentially, the ‘appropriate assessment’.”

The four decision can be viewed here:

1. Inch Cape
2. Seagreen Alpha
3. Seagreen Bravo
4. Neart na Gaoithe

4 counsel from Ampersand were involved in this case:

• Laura-Anne van der Westhuizen for the RSPB (with James Findlay)
• Malcolm Thompson QC for the interested party Inch Cape Offshore Limited
• Ailsa Wilson QC and Marcus McKay for the interested party Seagreen Wind Energy Limited

Press coverage on this case can be found here:

• BBC
• Herald
• Scotsman
• Daily Express
• Scottish Legal News

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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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