Keith Campbell, Head of Planning at MacRoberts LLP, explains the successful legal appeal for quartet of major offshore Scots wind farms.
Scotland’s appeal court, the Inner House of the Court of Session, has reversed an earlier judgment which had quashed statutory consents for the construction and operation of four wind farms off the east coast of Scotland, located in the outer Firths of Forth and Tay.
In October 2014 the Scottish Ministers granted consents under the Electricity Act 1989 and other legislation permitting the construction and operation of the Inch Cape (110 turbines), Neart Na Gaoithe (75 turbines) and Seagreen (two sets of 75 turbines) offshore wind farms.
The Royal Society for the Protection of Birds (RSPB) objected to the wind farms due to potential adverse impacts on certain species of migratory seabird found in Special Protection Areas (SPAs) in the vicinity of the proposed wind farms. SPAs are sites classified for the conservation of protected bird species. The RSPB applied for judicial review of the decisions to grant consent for each of the wind farms.
In July 2016 Lord Stewart upheld the RSPB’s challenges and quashed the consents on four grounds:
Ground 1: That the Scottish Ministers had failed to consult with the RSPB on environmental information received by the Scottish Minsters and taken into account in making their decisions, contrary to the requirements of The Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2000;
Ground 2: That the decisions to grant consent involved findings of scientific fact and methodology that contained errors such that the conclusions of Marine Scotland’s appropriate assessment (that the projects would not adversely affect the integrity of the SPAs) were not capable of removing all reasonable doubt;
Ground 3: That the Scottish Ministers breached EU obligations by failing to take account of a draft proposal for an additional SPA, as if that SPA had already been proposed or classified; and
Ground 4: That the Scottish Minsters had failed to give appropriate weight to advice provided by a statutory conservation consultee or provide adequate reasoning for rejecting that advice.
The Inner House Judgment
The Scottish Ministers appealed Lord Stewart’s judgment and the Inner House has upheld the appeals. Lord Stewart’s reasoning is dismissed in robust terms:
Ground 1: Lord Stewart had failed to focus on the consultation requirements in the relevant EIA Regulations, in a situation where no party contended that the EIA Regulations did not properly implement the relevant European Directive. The legal requirement is not to consult on any and all information or advice made available to the decision-maker, potentially resulting in an endless cycle of notification and consultation, but rather to comply with the prescribed consultation requirements. This had been done and there was no procedural irregularity. Separately, the Court confirmed that where there is a defined statutory right to consultation, there is no parallel or additional right of consultation at common law.
Ground 2: The Court noted that Lord Stewart had clearly spent an extraordinary amount of time and effort in analysing a “morass of scientific material” before identifying purported errors and omissions in the final ornithological risk assessment. In doing so “[d]espite 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”. This was not a proper role for the court. It was for Marine Scotland, as experts in the field, to evaluate the scientific material and they were entitled to conclude, as a matter of fact, that no reasonable doubt remained as regards impacts on the integrity of the SPAs.
Ground 3: The Scottish Ministers’ consideration of potential impacts on a draft SPA was not inadequate or unlawful. An SPA requires defined boundaries and conservation objectives, to be approved by the Scottish Ministers following a prescribed process. It is not legally appropriate to treat a draft SPA as if it were a classified SPA. Their Lordships further noted that the relevant Regulations expressly provide that where a new SPA is classified then prior consents can be reviewed, modified or even revoked.
Ground 4: The Court reiterated the established principle that while a decision-maker is obliged to take the views of a statutory consultation body into account, he is not bound to follow the consultee’s view, subject to providing clear and cogent reasons. In this case the decision-maker had acknowledged the few areas where Marine Scotland did not follow the methodological advice of a relevant consultee but had provided clear reasons for not doing so. The informed reader would be in no doubt as to the decision-maker’s reasoning.
The Inner House judgment is a welcome boost to Scotland’s burgeoning offshore renewables sector, the associated investment and employment benefits, and to the Scottish Government’s energy and climate change agenda.
Subject to any appeal to the Supreme Court, the lawfulness of the consents for the four offshore developments has been confirmed. The developers of the Neart Na Gaoithe proposal, which was awarded a CfD contract in 2015, have indicated their intention to move quickly towards the construction phase.
However, it is worth highlighting the 30 months that have elapsed between the Scottish Ministers granting consent and the Inner House judgment, a very substantial project delay with all the attendant funding risks.
The right to challenge consenting decisions is a necessary safeguard, but perhaps it is again time to consider ways to expedite proceedings involving nationally important infrastructure developments.