RSPB challenge against North Sea wind farms dismissed

The Lord President, Lord Carloway, sitting in the Inner House of the Court of Session, ruled that his colleague Lord Stewart was wrong to allow a legal challenge by bird conservation charity RSPB Scotland which stopped the developments in the Firth of Forth and Firth of Tay going ahead.

Developers behind the Inch Cape, Neart na Gaoithe and Seagreen Alpha and Bravo projects obtained ministerial approval in October 2014 to enable them to create and operate electricity generating stations, in the form of substantial wind farms some miles distant into the North Sea, in locations ranging from Anstruther in the south to Montrose in the north.

The Scottish Government has previously estimated the proposed wind farms could generate between £314 million and £1.2 billion for the Scottish economy, and produce enough power to supply the equivalent of 1.4 million homes.

In the course of the consent process, the plans were substantially modified, reducing the total number of turbines from 488 to 335 – 110 (Inch Cape), 75 (Neart na Gaoith) and two sets of 75 turbines (Seagreen Alpha and Seagreen Bravo).

The RSPB objected to the wind farms, broadly on the basis of potential adverse impacts on certain species of migratory seabird living in special protection areas (SPAs), and took the matter to the Court of Session in Edinburgh because it thought the Scottish Government had acted unlawfully when granting planning approvals for the developments.

The litigation concerned, first, whether, in granting the consents under the Electricity Act 1989, the Scottish Ministers acted in a procedurally incorrect manner and, in particular, whether they took into account material about which they ought to have allowed the RSPB to comment. Secondly, it concerned whether the consents involved findings of scientific fact or methodology containing errors which were susceptible to judicial review.

Thirdly, the petition questioned whether Scottish Ministers ought to have treated certain draft SPAs as if they had been approved. Finally, there was a challenge based upon the adequacy of Scottish Ministers’ reasoning.

In July 2016, Lord Stewart said he agreed with the arguments made by the RSPB’s legal team as he ruled that Scottish Ministers acted unlawfully by taking into account information which had not been consulted on.

He also found that Scottish Ministers had breached legal requirements to give proper consideration to the areas being a haven for rare wild life.

However, Lord Carloway - who was sitting with fellow judges Lord Menzies and Lord Brodie - ruled that there had been no procedural defect in the Scottish Ministers’ process, nor was there any breach of the relevant regulations, which were designed to permit public access to certain environmental information and to allow the public to respond to it in advance of any decision.

Lord Carloway added: “Despite paying lip service to the correct legal test for judicial review, the Lord Ordinary has strayed well beyond the limits of testing the legality of the process and has turned himself into the decision-maker following what appears to have been treated as an appeal against the respondents’ decisions on the facts.

“He has acted, almost as if he were the reporter at such an inquiry, as a finder of fact on matters of scientific fact and methodology which, whatever the judge’s own particular skills may be, are not within the proper province of a court of review. For this reason alone, his decision on this ground cannot be sustained.”

RSPB Scotland director Stuart Housden said the organisation was “hugely disappointed” at the judgement.

“Whilst we fully support deployment of renewable energy, this must not be at any cost,” he said.

“Combined, these four huge projects threaten to kill thousands of Scotland’s internationally-protected seabirds every year, including thousands of puffins, gannets and kittiwakes.

“These could be amongst the most deadly windfarms for birds anywhere in the world.”

Global wind and solar company Mainstream Renewable Power, the firm behind the 450MW Neart na Gaoithe offshore wind farm, has welcomed the decision.

David Sweenie, Mainstream Renewable Power’s offshore manager for Scotland, said: “This £2bn project is capable of supplying all the homes in a city the size of Edinburgh with clean energy. It will create over 500 jobs during construction and over 100 permanent jobs once operational. More than £540m will be directly invested in Scotland during the construction phase and a further £610m during the operational phase.

“As a nationally-significant infrastructure project, Neart na Gaoithe will help Scotland and the UK meet their climate and energy goals, and develop a world-leading offshore wind sector. We have worked closely with a range of partners on the project, including the RSPB and we look forward to continuing to do so as we take the development forward.

“Rapid advances in offshore wind technology have enabled us to reduce the number of turbines to be installed from 125 in the original consent application in 2012, to a maximum of 64 turbines today.

“This is a major step forward for Neart na Gaoithe, which is the only project out of the four offshore wind projects in the Forth and Tay to hold a Contract for Difference (CfD). We plan to move quickly with all our partners to bring this project to construction, and deliver the vitally important jobs and investment that it will create.”