Environment – Development – Wind farm – Grant of consent for wind farm under Electricity Act 1989 – Consideration of effect of development on migratory population of whimbrel – Appellant challenging grant – Whether respondent ministers properly applying requirements of Directive 2009/147/EC – Whether required to consider taking of special measures to improve conservation status of whimbrel – Appeal dismissed
In April 2012, the first respondent ministers granted consent, under section 36 of the Electricity Act 1989, for the construction of a large-scale wind farm in the Shetland Islands, comprising 127 turbines over an area of 50 square miles. The application for consent was accompanied by an environmental statement, in accordance with the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2000, which addressed concerns regarding the impact of the development on the population of whimbrel, a protected species of migratory wading bird of which there were roughly 290 pairs in Shetland, representing about 95% of the total UK population. The addendum included a habitat management plan, which identified measures for increasing the breeding success of whimbrel.
The ministers took the view that the proposed restoration of the peatland ecosystem under the habitat management plan would offer benefits to a whole range of species and habitats and would be likely to have a positive value to the conservation status of whimbrel; further, any impact on the conservations status of whimbrel would be outweighed by the benefits of the project, including its contribution to meeting renewable energy and climate change targets.
The appellant challenged the grant of consent for the development on the ground that the ministers had failed to take proper account of Directive 2009/147/EC (the Birds Directive). It contended that the obligation under article 2, requiring member states to take measures to maintain the population of wild birds at a level that corresponded to ecological, scientific and cultural requirements while taking account of economic and reactional requirements, required the ministers not merely to maintain the current level of the whimbrel population but also to adapt it to the “appropriate level” by bringing it up to favourable conservation status, which might require the taking of “special measures” under article 4(2), such as closing down the wind farm during whimbrel migratory or breeding months.
The claim was allowed at first instance but that decision was reversed by the Inner House of the Court of Session. The appellant appealed.
Held: The appeal was dismissed.
In making their decision on the application before them, the ministers were required to take due account of the obligations of the UK under the Birds Directive, so far as relevant. However, they were not required to conduct a full review of their functions under the Birds Directive with a view to considering how the application proposal would contribute or fit in with those functions, in particular the objective of bringing the whimbrel up to favourable conservation status. The directive was merely one of the material considerations to be taken into account in reaching a lawful decision whether to grant consent under the 1989 Act.
The ministers’ functions derived not from the directive but from their duty to consider a proposal for development under the 1989 Act. A wide range of issues were potentially relevant to that task. The 1989 Act contained specific reference to conservation of wildlife and mitigation of any adverse effects of a development, and the relevant regulations also required the ministers to take account of the information provided by the environmental assessment. The directive, on the other land, did not in terms impose any specific requirements in respect of the particular development proposal, although it formed part of the background against which the effects of the development needed to be considered. In considering those matters, the ministers would be expected to attach weight to the views of statutory consultees and other expert bodies, as they had done, but they were not bound by that advice. It followed that the ministers were not obliged, as their starting point for consideration of the proposal, to establish the precise scope of the duties imposed by article 2 of the Birds Directive and, for that purpose, to determine an “appropriate level” for the whimbrel population. That was not the issue facing the ministers in the context of their consideration of the proposal under the 1989 Act. Instead, their duty was to determine whether to grant consent for the particular development proposal, taking into account all material considerations for or against, of which the directive formed part.
Once it had been decided that the impact of the development on the whimbrel population was not significant, the Birds Directive did not fall out of the picture; it could remain relevant to the extent that the proposal might nonetheless prejudice the fulfilment of the ministers’ duties under the directive. However, the appellant’s suggestions of such prejudice were unsupported speculation and had not been raised by anyone in the representations on the proposal, whether by expert bodies or others. Had the statutory consultees or others thought it necessary or appropriate to call for designation of further special protection areas or other special measures under article 4(2), they could have raised them as an issue then the developer would have had an opportunity to address it. They had not done so and there was no evidence that any party had alleged any failure by the UK to comply with its obligations under article 4(2).
The ministers had nonetheless had regard to the desirability of improving the conservation status of the whimbrel on the islands in general, rather than simply avoiding significant loss due to the particular proposal. They had been entitled to attach weight that the habitat management plan submitted with the proposal would result in one-third of the UK whimbrel population being taken under active management and to regard it as an exceptional opportunity to improve understanding of the species, its habitat and the measures necessary to conserve it. Overall, the ministers were entitled to regard the limited anticipated impact on the whimbrel population, combined with the prospect of the habitat protection plan achieving some improvement to their conservation status more generally, as a sufficient answer to the appellant’s objections.
Per curiam: In the light of the above conclusions, it was not necessary to address the further issue of whether the ministers had been entitled to rely on “balancing considerations”, in the form of renewable energy and climate change benefits, to override any objections under the Birds Directive. A difficult question might arise in relation to the interpretation of article 2 and the role of the economic factors to which it referred, and also in relation to the obligation of member states in relation to setting an appropriate level for the maintenance of different species. A reference to the European court might be necessary in an appropriate case in which the resolution of those issues was necessary for a decision.
Sir Crispin Agnew QC and Donald Cameron (instructed by Richard Buxton Environmental & Public Law, of Cambridge, as agent for R&R Urquhart LLP, of Forres) appeared for the appellant; Malcolm Thomson QC and David Sheldon QC (instructed by the Scottish Government Legal Directorate) appeared for the first respondent; Alisa Wilson QC and Marcus McKay (instructed by Gillespie Macandrew LLP) appeared for the second respondent.
Sally Dobson, barrister
Click here to read transcript: Sustainable Shetland v Scottish Ministers
