Shetland wind farm protesters lose appeal over bird protection
A conservation group set up to protect the Shetland Islands has failed in an appeal to the UK Supreme Court against a decision upholding the grant of permission for a large wind farm on the islands.
Affirming the Inner House, which had reversed the Lord Ordinary, the court unanimously ruled that the Scottish ministers had had proper regard to the EU Birds Directive as just one of a number of material considerations to be taken into account in reaching a lawful decision whether to grant consent under the Electricity Act 1989.
Sustainable Shetland had challenged the proposed 127-turbine development due principally to its potential impact on the whimbrel population, which had been in decline. The Lord Ordinary, Lady Clark of Calton, held that the ministers had failed to take proper account of their obligations under the Birds Directive, in failing to explain their approach or why they had departed from the views of Scottish Natural Heritage. The Inner House ruled that Lady Clark should have asked whether the decision was a lawful one; it was clear that regard had been had to the directive, and the effect on the bird population was a factual question for them.
Speaking for the court, Lord Carnwath, with whom Lord Neuberger, Lord Sumption. Lord Reed and Lord Hodge agreed, said that in principle the Inner House was clearly right. "The ministers’ functions in this case derived, not from the directive, but from their statutory duty to consider a proposal for development under the Electricity Act 1989", he said. "The range of issues potentially relevant was apparent from their summary of the large number of representations for and against the proposal."
The Birds Directive did not impose any specifice requirements in respect of this proposal, but was part of the relevant legal background. "I agree with the Inner House that although the decision letter did not mention the directive as such, the detailed consideration given to the advice of SNH, with specific reference to its provisions, leaves no serious doubt that it was taken into account, as part of the 'obligations under EU environmental legislation' to which the letter referred", Lord Carnwath continued.
If there had been evidence that the proposal, while having no significant effect in itself on the whimbrel population, might prejudice the fulfilment of the ministers’ duties under the directive, that would have been a potential objection which required consideration, but the difficulty for the appellants was that their suggestions were "unsupported speculation, and were not raised by anyone in the representations on this proposal – whether by the expert bodies or anyone else".
He concluded on this point: "In summary, the ministers were entitled to regard the limited anticipated impact on the whimbrel population, combined with the prospect of the [habitat management plan] achieving some improvement to their conservation status more generally, as a sufficient answer to the objections".
Cases might arise where the interaction of articles 2 and 4 of the directive might need to be considered further, but this was not one of them, and there was no need for a reference to the European Court.