RSPB v The Scottish Ministers & others

An appellate Division of the Court of Session has upheld appeals by the Scottish Ministers against orders by a judge at first instance that their decisions to grant consents for the construction of four offshore wind farms in the North Sea were "unlawful".

An appellate Division of the Court of Session has upheld appeals by the Scottish Ministers against orders by a judge at first instance that their decisions to grant consents for the construction of four offshore wind farms in the North Sea were “unlawful”. The result is that the four separate petitions for judicial review by the Royal Society for the Protection of Birds (RSPB) challenging plans to develop new marine electricity generating projects in the Firth of Forth and Firth of Tay have been dismissed. The following is a summary of the Opinion of the Court:

On 10 October 2014 the developers obtained sundry consents from the Scottish Ministers 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.

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).

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 the 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 the Scottish Ministers’ reasoning.

The judge at first instance held that the Scottish Ministers had failed to comply with the provisions of the Environmental Impact Assessment (Scotland) Regulations 2000 (EIA Regulations) and thereby acted unlawfully by taking into account information which had not been consulted on. He held that the “appropriate assessment” (AA) – a precondition for a lawful consent – had taken into account irrelevant considerations, left out of account relevant considerations, applied the wrong legal test and reached a “perverse” conclusion in relation to ornithological risk. He found that the Scottish Ministers were in breach of their EU law obligations by refusing or delaying to classify the Outer Firth of Forth and Tay Bay Complex as a marine special protection area (SPA), and thereby failed to give consideration to the protection of conservation interests in the area – rendering the decisions unlawful.

The appellate Division reversed the judge’s orders. 

The Court ruled that there had been no procedural defect in the Scottish Ministers’ AA 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. 

The Opinion of the Court, delivered by the Lord President, Lord Carloway, stated: “The Regulations are intended to provide for the effective publication of environmental information and for public participation in the EIA process. The extent of such provision must, however, be tempered with a degree of realism. It should not create an endless process of notification of, and consultation on, every matter which is, or becomes, available to the decision-maker prior to the decision. The process is to inform the public of the application, and its perceived environmental impact, and the responses from defined statutory consultative bodies (additional information). The public then have an opportunity to comment on these matters and, no doubt, to raise any concerns about other issues which they perceive to arise. That process was fully complied with here.”

The Court further held that the judge at first instance had erred in his approach to the standard of review which the court should apply in such cases.

The Lord President said: “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.”

The judge at first instance had also erred in holding that the Scottish Ministers’ reasoning had been inadequate.

The Opinion stated: “The decision letters are detailed documents covering a wide variety of issues. Again, however, the reasons for reaching the decisions are clearly set out both in a specific summary form and in the preceding more expansive format. Due process had been carried out. The ESs (environmental statements) had judged the likely impact to be acceptable. The projects would contribute to local or national economic development priorities and the respondents’ energy policies. On the basis of the AA, the respondents had determined ‘to the appropriate level of scientific certainty’ that the projects would not adversely affect site integrity in view of their conservation objections … The respondents stated that, having taken into account the relevant information from the applicants, the consultative bodies’ responses, the AA and both the mitigation measures and conditions imposed, there were no outstanding concerns requiring consent to be withheld. This is again sufficient to meet the legal test of adequacy.”

The full Opinion of the Court can be accessed via the Scottish Courts and Tribunals Service website.

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