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Windfarms and Whimbrels: The Supreme Court dismisses the Viking windfarm challenge

The Supreme Court has (9 February 2015) dismissed Sustainable Shetland's appeal against the decision of the Inner House which upheld the Scottish Ministers' appeal from the decision of the Lord Ordinary. The Lord Ordinary had upheld Sustainable Shetland's challenge to a consent granted by the ministers in 2012 under section 36 of the Electricity Act 1989 for the Viking windfarm on Shetland. Before the Supreme Court the challenge focussed on an alleged failure on the part of the ministers to take proper account of their obligations under the Birds Directive (2009/147/EC) in respect of the whimbrel, a protected migratory bird.

Sustainable Shetland argued that the ministers had failed to take account of their positive obligations not merely to maintain the current level of the whimbrel population, but to adapt it to the appropriate level under article 2 of the Directive - in effect, to bring the whimbrel up to "favourable conservation status". Moreover, it was alleged that in the light of the detailed information made available in connection with the application for consent, the ministers should have appreciated that the mainland territory appeared to be the most suitable territory for classification as a SPA under article 4(2) of the Directive (notwithstanding that Scottish Natural Heritage had made no reference to that provision). Finally, in so far as the ministers relied under article 2 of the Directive on "balancing" considerations relating to climate change benefits or other economic considerations, those were not relevant in law.

The Supreme Court held that the ministers had not been required to (in effect) conduct a full review of their functions under the Directive, with a view to considering how the proposal would contribute to or fit in with those functions (particularly the objective of bringing the whimbrel up to "favourable conservation status"). The Directive was but one of a number of material considerations which the ministers had to take into account. Nor had there been any failure to comply with the requirements of article 4(2) of the Directive. On the article 2 "balancing" point, the Supreme Court observed that "the interpretation of article 2 raises some difficulties, one of which is the precise role of the economic factors there referred to". It was noted that the need for a reference to the Court of Justice might arise in an appropriate case in which the resolution of the issue was necessary for a decision, but that the case before the court was not such a case and that further discussion was better left for another occasion.