Sustainable Shetland v The Scottish Ministers and Another (Scotland): SC 9 Feb 2015

Wind Farm Permission Took Proper Account

Sustainable Shetland challenged the grant of permission for a wind farm saying that the respondents had failed properly to take account of their obligations under the Birds Directive, in respect of the whimbrel, a protected migratory bird.
Held: The appeal failed.
It was clear that the Ministers had properly considered the effect on the whimbrel and had concluded that even without mitigation the effect would not be substantial. The reference to the benefits of the project as balancing considerations was a fall-back position which would only have come into play if the primary reasoning were not accepted: ‘the ministers did have regard to the desirability of improving the conservation status of the whimbrel on the islands in general, rather than simply avoiding significant loss due to this proposal. They were entitled to attach weight to the fact that the HMP would result in one third of the whimbrel population of the UK being taken under active management, and to regard it as an exceptional opportunity to improve understanding of the species and its habitat and of the measures necessary to conserve it. ‘

Lord Neuberger, President, Lord Sumption, Lord Reed, Lord Carnwath, Lord Hodge
[2015] Env LR 23, 2015 SCLR 224, [2015] 3 CMLR 4, 2015 GWD 5-113, [2015] UKSC 4, [2015] 2 All ER 545, 2015 SLT 95, UKSC 2014/0216
Bailii, Bailii Summary, SC, SC Summary, SC Video
Electricity Act 1989 36, Birds Directive (2009/147/EC), Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2000
At Outer HouseSustainable Shetland, Re Judicial Review SCS 24-Sep-2013
Outer House – The petitioner environmental group objected to the grant under the 1989 Act of permission for the construction for a substantial wind farm in Central Mainland, Shetland. . .
Second DivisionSustainable Shetland v The Scottish Ministers and Another SCS 3-Dec-2013
Second Division – Inner House -The petitioners challenged the grant of permission under the 1989 Act for a windfarm on Shetland. . .
Inner HouseSustainable Shetland v The Scottish Ministers and Viking Energy Partnership for Judicial Review SCS 9-Jul-2014
Inner House, First Division – Application regarding substantial wind farm on Shetland. The claimants said that the defenders had failed to take proper account of te effect of the proposed development on the whimbrel. . .
CitedRegina v Secretary of State for the Environment, ex parte Royal Society for the Protection of Birds ECJ 11-Jul-1996
(Judgment) When designating an area of land as a wild bird special protection site, economic factors were to be excluded.
ECJ Article 4(1) or Article 4(2) of Directive 79/409 on the conservation of wild . .
CitedLigue Royale Belge pour la Protection des Oiseaux and Societe d’etudes Ornithologiques AVES v Region Wallonne ECJ 12-Dec-1996
ECJ 1 Environment – Conservation of wild birds – Directive 79/409 – Implementation by the Member States – Derogations from the prohibition of killing or capturing protected species – Condition – Absence of any . .
CitedTrump International Golf Club Scotland Ltd and Another v The Scottish Ministers and Another SCS 17-Oct-2013
Outer House – Court of Session – This petition for judicial review challenged the decisions of the Scottish Ministers (a) not to hold a public inquiry, and (b) to grant consent under section 36 of the Electricity Act 1989 for the construction and . .

Lists of cited by and citing cases may be incomplete.

Planning, Utilities, Environment

Leading Case

Updated: 09 November 2021; Ref: scu.542337