Wind farms, birds, and that pesky thing called the rule of law
28 October 2013
Sustainable Shetland, Re Judicial Review, 24 September 2013, Lady Clark of Calton read judgment
The current storms brought down a turbine in Teignmouth: see here for good pics of this and other mayhem. And the rule of law recently brought down a massive wind farm proposed for Shetland. The Scottish Ministers had waved aside a request for a public inquiry, and ended up drafting reasons which ignored the obligations in the Wild Birds Directive in respect of this bird – the whimbrel. Lady Clark quashed the consent on this ground, and also decided that the wind farmer could not apply for the consent anyway because it had not got the requisite licence which she concluded was a pre-condition for such an application.
And there is a very good chance that the NGO which brought this challenge would not be entitled to do so if Mr Grayling gets his way, because it might well not have been held to have “standing”. Such a change he would regard as “firmly in the national interest”: see my post of last week on proposed reforms to judicial review rules. There are, to say the least, two sides to that argument about national interest, hence the importance of responding to his consultation paper, with its closing date of 1 November 2013.
By all standards, this was a big proposal – 103 wind turbines (90m in height and 14 m to blade tip) were in the event consented. The development site covered some 50 square miles (a little over one-eighth of the total area of mainland Shetland) – it involved 104 km of access tracks of up to 10 m in width; quarries and borrow pits to extract 1.47 million cubic metres of rock by drilling and blasting; excavation of up to 919,310 cubic metres of peat. Some 232 hectares would be disturbed with a permanently affected area of about 104 ha. And the economic benefits were said to be correspondingly big.
The Birds Directive challenge
Shetland has some 95% of the UK population of whimbrel, a species of wading bird, with some 290 breeding pairs. What would the wind farm do to this population? The experts found it difficult to say, but seem to have proceeded on the basis that 5.5 pairs will be displaced by the wind farm itself, and 2.1 or 3.7 birds per annum would be killed, according to the wind farmer and Scottish National Heritage respectively. As the decision letter put it
Ministers accept that the loss of 3.7 whimbrel per year as a result of the windfarm would be likely to have some impact on what is a small and declining subset of the species.
Ministers thought that such losses could be got round by a rather vague Habitats Management Plan, which, in optimistic mode, was thought capable of compensating for such losses. But they also said, in effect, that it did not matter if the whimbrel population declined because of the economic importance of the proposal.
Now to the law. The Wild Birds Directive 2009/147 contains an obligation in Article 2 to maintain bird populations at a level which corresponds to ecological, scientific and cultural requires “while taking account of economic and recreational requirements”. These quoted words were a little obscure if looked at on their own, until they were explained in the Lappel Bank case as ruling out the possibility that economic issues be used to justify measures which affected population levels.
Scottish Ministers and the wind farmer sought to re-argue this point before the court unsuccessfully. Put bluntly, the obligation to “maintain” populations is not met by a proposal which threatens to destroy them.
But what had the decision letter said about the Directive’s obligations? Er, nothing. Quite extraordinarily, there was no mention of the Directive at all – not a promising start for an authority seeking to uphold a decision.
In concluding that the Scottish Ministers had not complied with the Directive, Lady Clark added:
 I consider that the interpretation of the Wild Birds Directive is not without its difficulties. But in circumstances where the Directive applies and is relevant to a determining issue, I am of the opinion that it is necessary for a decision maker in a case such as this to engage with the Directive and make it plain, at least in general terms without giving a legal treatise in what way the Directive was or was not applied and that it was properly applied. I do not consider that is a high or unreasonable standard to expect. As I have observed earlier in this opinion, this case involves a very large, multimillion pound development with important consequences….. In my opinion the legal framework of the decision making and the approach adopted by the decision maker in relation to a determining issue in a case such as this requires to have some transparency.
Hence she found for the NGO on this point.
The unsuccessful public inquiry challenge
Scottish Ministers’s decision was under s.36 Electricity Act 1989, namely to consent the construction of an electricity generating station. Such a consent has the effect of amounting to a deemed planning permission. Such decisions can be taken “on the papers” or as a result of a public inquiry. Given that there were over 2,772 objections (and 1,109 letters of support), one might have thought that this was a classic case for a public hearing. Scottish Ministers were unpersuaded, and an attempt to challenge this before the court was unsuccessful. Ultimately, there is a broad discretion in such cases in respect of the scheme, and the judge was not convinced that the reasons in favour of an inquiry were so strong that any reasonable decision-maker would have ordered a public inquiry.
Ironically, both Scottish Ministers and wind farmers may be ruing that decision to do it on the papers. An inquiry, with cross-examination and oral argument on facts and law does tend to lead to better decision-making. It would certainly have led to the Birds Directive point being debated, and not simply ignored. It might also have identified the “competency” point, which was the other successful ground of challenge.
During the hearing, the judge wished to be addressed on the statutory scheme within the Electricity Act. As the hearing progressed, it became clear that there was a real issue whether the particular wind farmer could apply for a consent under section 36 of the Act, unless it had a generation licence under s.6 of the Act. After sustained argument, the judge decided it did need such a licence, and therefore the application for the consent did not have “competency”. On this ground alone, Scottish Ministers were wrong in law to grant the consent.
Now is not the place to develop the intricacies of this argument, which is going on appeal anyway . But my point is a simple one. With a written process and without a judicial review, this unlawfulness point would not have surfaced. That is what judicial review is for, to make sure that, whatever other public interests may be in play (climate change, jobs, and loadsamoney for Shetland), things are done lawfully.
It looks as if the case is going to be heard on appeal in February 2014 (see here for a similar piece of litigation by Donald Trump saying that another wind farm will affect his golf course and battening on to the competency point). Sustainable Shetland will be there to argue the Birds Directive point, but it does not have enough assets to argue the competency point. Therein lies the reality of much NGO litigation.
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