JUDGMENT
Sustainable Shetland (Appellant) v The Scottish
Ministers and another (Respondents) (Scotland)
before
Lord Neuberger, President
Lord Sumption
Lord Reed
Lord Carnwath
Lord Hodge
JUDGMENT GIVEN ON
9 February 2015
Heard on 18 December 2014
Appellant Respondent (1)
Sir Crispin Agnew QC Malcolm Thomson QC
Donald Cameron David Sheldon QC
(Instructed by Richard
Buxton Environmental
and Public Law Solicitors (as agents for R & R
Urquhart LLP, Forres)
)
(Instructed by Scottish
Government Legal
Directorate Litigation
Division
)
Respondent (2)
Alisa Wilson QC
Marcus McKay
(Instructed by Gillespie
Macandrew LLP
)
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LORD CARNWATH: (with whom Lord Neuberger, Lord Sumption, Lord
Reed and Lord Hodge agree)
Introduction
1. The appellants, Sustainable Shetland, are an unincorporated association
concerned in the protection of the environment of the Shetland Islands. By
these proceedings they challenge a consent granted on 4 April 2012 by the
Scottish Ministers for the construction of a windfarm. The consent was under
section 36 of the Electricity Act 1989, and was accompanied by a direction
that separate planning permission was not required (Town and Country
Planning (Scotland) Act 1997 section 57(2)). Although the appellants’
objections in earlier exchanges had related to the impact of the development
on the environment generally, the focus of their challenge in the courts has
related to the alleged failure of the ministers to take proper account of their
obligations under the Birds Directive, in respect of the whimbrel, a protected
migratory bird. Their challenge was upheld by the Lord Ordinary (Lady Clark
of Calton) on other grounds which are no longer in issue, but she indicated
that she would if necessary have upheld the challenge also under the
directive. The ministers’ appeal was allowed unanimously by the Inner
House.
2. The proposed windfarm was on a very large scale. In its amended form it
would have had 127 turbines (reduced from 150), located in three areas
(Delting, Kergord and Nesting), covering a total area of some 50 square
miles, of which some 232 hectares would be physically affected. Associated
infrastructure would include 104 km of access tracks, and anemometer masts,
and borrow pits. The original application was made in May 2009. It was
accompanied by an Environmental Statement, as required by the Electricity
Works (Environmental Impact Assessment) (Scotland) Regulations 2000
(SSI 2000/320).
3. The whimbrel population of the Shetlands is highly significant in national
terms, representing (at 290 pairs on the basis of a 2009 survey) around 95%
of the total UK population. Of this some 56 pairs breed in the central
mainland area, where the windfarm would be sited, 23 pairs within the
development site. 31 pairs breed in the Fetlar Special Protection Area.
Between 72 and 108 adult whimbrel from the Shetlands die annually from
existing causes. The 2009 survey showed a decline in the Shetlands region
over the previous 20 years of 39% overall, but with wide variations across
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the region; the decline in Central Mainland was only 6%, compared to
between 54% and 80% in the Fetlar SPA.
4. The potential impact on the whimbrel population emerged as an important
issue in early objections from, among others, Scottish Natural Heritage
(“SNH”). There followed a series of detailed exchanges between SNH and
the developers on both the assessment of the likely impact of the development
on the whimbrel population and mitigation measures. It is unnecessary to do
more than summarise some of the main points. In response to SNH objection,
the developers revised their Environmental Statement by submitting a new
Addendum, including a chapter “A 11 Ornithology”, which dealt in detail
with the likely effects on whimbrel. It was said to be based on more than eight
years of study, which gave “considerable confidence in the robustness of
these assessments”. It was acknowledged that the population processes of
Shetland whimbrel were “poorly understood”, and that, in the absence of
previous windfarm developments in areas with breeding whimbrel, the likely
impact had to be inferred from knowledge of responses of other related wader
species, such as the curlew. It predicted that operational disturbance would
result in the long term displacement of 1.8 pairs, which might be able to
resettle elsewhere; and a collision mortality rate of 2.1 whimbrel per year.
5. The Addendum included a Habitat Management Plan (“HMP”), which
contained detailed assessment of the factors affecting the whimbrel
population, and proposed habitat management actions. For example, the
“single most important action” to increase whimbrel breeding success was
said to be the control of the likely main nest predator, the hooded crow, over
sufficiently large areas during the nesting season. The HMP was said to have
“a high likelihood of more than off-setting any adverse effects
of the windfarm and a reasonable likelihood of causing the
Shetland whimbrel population to partially and possibly fully
recover over the lifetime of the Viking Wind Farm.”
6. Although the revised proposals led SNH to withdraw some of their objections
to the proposals, those in respect of whimbrels were maintained. In their letter
of 11 February 2011 they referred to a “high likelihood of a significant
adverse impact of national interest …”. They made specific reference to the
EU Birds Directive:
“Whimbrel are subject to certain general provisions of the EU
Birds Directive which apply to all naturally occurring birds in
the wild. These include articles 2, 3(1), 3(2)(b) and the last
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sentence of article 4(4). Achieving and maintaining favourable
conservation status of the national population is in line with
these provisions and obligations. In this case our advice is that
the proposed Viking wind farm is highly likely to result in a
significant adverse impact on the conservation status of the
national population of whimbrel.”
7. They expressed doubts as to the likely success of the HMP, given the
“unproven and experimental” nature of some of the proposed mitigation
measures, and the “scale and location of the project” which were not
comparable to other mainland restoration sites. In later correspondence they
described the ornithological assessment as “associated with a high degree of
uncertainty in several critical respects”. They disagreed with the predicted
collision mortality rate, which they put at 4.2 for 127 turbines, or 3.7 if the
Delting turbines were removed. They welcomed the HMP as offering “the
possibility of significant biodiversity benefits” and as “an excellent
opportunity to explore various habitat management methods” as yet untested
in the Shetlands; but advised that it contained a “qualitative assurance which
cannot be relied on with certainty to significantly mitigate these impacts”.
They regretted that in spite of the significant efforts made in cooperation with
the developers they had been unable to resolve all their concerns.
8. The Scottish Ministers gave their decision by letter dated 4 April 2012. They
recorded the representations of various consultees, statutory and nonstatutory (including those of SNH and RSPB, relating to effects on birds).
They also noted the receipt of a total of 3881 public representations, of which
2772 were objections and 1109 were in support of the development; the
objections “raised concerns on a number of subjects including habitat,
wildlife, visual impact and infrastructure”. In view of the “apparently
insurmountable aviation issues” associated with the 24 turbines in the Delting
area, it would not be appropriate for those to be included in any consent, but
there remained the option of granting consent for the remaining 103 turbines.
9. The letter stated that the ministers had had regard to “their obligations under
EU environmental legislation” and to “the potential for impact on the
environment, in particular on species of wild birds”. It noted that the peatland
ecosystem was in serious decline, and that the restoration proposed by the
Habitat Management Plan would “offer benefits to a whole range of species
and habitats”. It was “far more ambitious and expansive” than plans
accompanying previous windfarm proposals encompassing an area in total of
12,800 hectares, and had been welcomed by SNH as offering the possibility
of significant biodiversity benefits.
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10. In a section headed “Whimbrel” the letter discussed the respective
submissions and the supporting evidence on this subject. The estimate of 3.7
collision deaths per year was regarded as “very small” when considered in
the context of the 72-108 annual deaths from other causes. Of the view of
SNH and others that the development would result in a “significant impact of
national interest”, the letter commented:
“Ministers are not satisfied that the estimated impact of the
development on whimbrel demonstrates such a level of
significance. In addition, Ministers consider that the potential
beneficial effects of the Habitat Management Plan (HMP) can
reasonably be expected to provide some counterbalancing
positive benefits.”
11. It was accepted that the beneficial effects of the HMP could not be predicted
with certainty, for the reasons given by SNH, but the letter continued:
“Ministers note that the HMP will take one third of the UK
population of whimbrel under active management, and will
target some 100 whimbrel ‘hotspots’. Based on the detailed
environmental information provided in the environmental
statement and addendum, Ministers are satisfied that the
measures proposed by the HMP are likely to have a positive
value to the conservation status of the whimbrel. These
measures include a variety of management techniques,
including predator control, habitat restoration, protection and
management. Ministers are satisfied that an HMP which
includes significant predator control from the outset, as well as
ongoing habitat restoration, protection and management, is
likely to counteract the relatively small estimated rate of bird
mortality. Further reassurance is gained from the commitment
to ongoing development and improvement built into the HMP
as understanding of its effect improves, and from the fact that
this commitment will be required by condition.
In any case, if, despite the implementation of the HMP, the
estimated negative impact on the species were to remain,
Ministers consider that the level of impact on the conservation
status of the whimbrel is outweighed by the benefits of the
project, including the very substantial renewable energy
generation the development would bring and the support this
offers to tackling climate change and meeting EU Climate
Change Targets.
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The whimbrel is in decline on Shetland. Ministers consider that
the HMP represents an opportunity – currently the sole
opportunity – to try to improve the conservation status of the
species. Without the Viking Windfarm HMP, there currently
appears to be no prospect of any significant work being
undertaken to reverse the decline of the whimbrel in the UK.”
12. It was considered that conditions on the consent would ensure comprehensive
monitoring of the effects of the development and the success or otherwise of
the mitigation measures, which work would also “inform ongoing initiatives
for the conservation of whimbrel …”. The letter went on to consider other
issues, under the headings “Landscape and visual”, “Economic and
renewable energy benefits”, and “Other considerations”; before concluding
that “environmental impacts will for the most part be satisfactorily addressed
by way of mitigation and conditions, and that the residual impacts are
outweighed by the benefits the development will bring”, and that consent
should therefore be granted.
Statutory requirements and the Birds Directive
13. By paragraph 1 of Schedule 9 of the Electricity Act 1989, developers are
required in formulating their proposals to have regard to “the desirability …
of conserving flora, fauna and geological or physiographical features of
special interest …”, to “do what (they) reasonably can to mitigate any effect”
which the proposals would have on such flora, fauna or features; and, in
considering their proposals, the ministers are required to have regard to the
extent of compliance with those duties. There is no allegation in this appeal
of non-compliance with these duties by the developers or the ministers.
14. In addition, as is common ground, the ministers were required to take due
account so far as relevant of the obligations of the United Kingdom under the
Birds Directive. The directive currently in force, which dates from 2009
(2009/147/EC), was a codification of provisions originally found in the 1979
directive (79/409/EEC) with subsequent amendments. As such they have
been discussed in a number of cases in the European Court of Justice.
Detailed analysis can be found in the opinions of Advocate-General Fennelly
in C-44/95 R v Secretary of State for the Environment, Ex p Royal Society for
the Protection of Birds [1996] ECR I-3805 (“the Lappel Bank case”) and C10/96 Ligue Royale Belge pour la Protection des Oiseaux ASBL v Région
Wallonne [1996] ECR I-6775.
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15. As has been seen, SNH drew particular attention to “articles 2, 3(1), 3(2)(b)
and the last sentence of article 4(4)”. To understand the arguments here and
in the courts below, it is necessary to set these in their context. By article 1
the directive applies to
“the conservation of all species of naturally occurring birds in
the wild state in the European territory of the Member States to
which the Treaty applies …”
By article 2 –
“Member States shall take the requisite measures to maintain
the population of the species referred to in article 1 at a level
which corresponds in particular to ecological, scientific and
cultural requirements, while taking account of economic and
recreational requirements, or to adapt the population of these
species to that level.”
Article 3.1 requires member states “in the light of the requirements referred
to in article 2” to take the requisite measures “to preserve, maintain or reestablish a sufficient diversity and area of habitats for all the species of birds
referred to in article 1”; such measures to include (article 3.2(b)):
“(b) upkeep and management in accordance with the ecological
needs of habitats inside and outside the protected zones;”
16. Article 4.1 requires “special conservation measures” to be taken in respect of
the species mentioned in annex I of the directive, “in order to ensure their
survival and reproduction in their area of distribution”, and requires member
states to “classify in particular the most suitable territories in number and size
as special protection areas” for the conservation of these species. Article 4.2
requires “similar measures” for regularly occurring migratory species not
listed in annex I. It is common ground that whimbrel, though not listed in
annex I, are subject to the requirement for “similar measures” for migratory
species under article 4(2). The Fetlar SPA was designated pursuant to this
duty.
17. It was established by the European Court in the Lappel Bank case that,
notwithstanding the reference in article 2 to “economic and recreational
requirements”, such factors were not relevant in choosing or defining special
protection areas under article 4. The precise relevance of such factors to the
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scope of the duties under article 2 is a matter of debate. In Commission v
Belgium C-247/85 [1987] ECR 3029, para 8, the European Court observed:
“… article 2 of the directive … requires the Member States to
take the requisite measures to maintain the population of all
bird species at a level, or to adapt it to a level, which
corresponds in particular to ecological, scientific and cultural
requirements, while taking account of economic and
recreational requirements and from which it is therefore clear
that the protection of birds must be balanced against other
requirements, such as those of an economic nature …”
(emphasis added)
However, in the later Lappel Bank case, the Advocate-General (para 57) took
the view that this balance was relevant under article 2, not to the level at
which the population of the particular species was to be maintained, but only
to the measures required to achieve it. The court did not express a view on
that point, confining itself to ruling on article 4.
18. Article 4.4, to the last sentence of which SNH referred, provides:
“4. In respect of the protection areas referred to in paragraphs
1 and 2, Member States shall take appropriate steps to avoid
pollution or deterioration of habitats or any disturbances
affecting the birds, in so far as these would be significant
having regard to the objectives of this article. Outside these
protection areas, Member States shall also strive to avoid
pollution or deterioration of habitats.”
19. In the same passage SNH made reference to the aim of achieving “favourable
conservation status” for a relevant species. This expression does not appear
in the Birds Directive itself. The concept is taken from the Habitats Directive
(92/43/EEC), and is of direct application to the obligations of states in
relation to the European network of special areas of conservation under
article 3 of that directive (“Natura 2000”). For this purpose, article 1(i)
defines the “conservation status” of a species as “the sum of the influences
acting on the species concerned that may affect the long-term distribution and
abundance of its populations within the territory …”. Conservation status is
taken as “favourable” when:
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“- population dynamics data on the species concerned indicate
that it is maintaining itself on a long-term basis as a viable
component of its natural habitats, and
– the natural range of the species is neither being reduced nor is
likely to be reduced for the foreseeable future, and
– there is, and will probably continue to be, a sufficiently large
habitat to maintain its populations on a long-term basis.”
20. There are links between the two directives. By article 3 of the Habitats
Directive, special protection areas designated under article 4 of the Birds
Directive were also included in the Natura 2000 network, and (by article 7)
such areas were subject to the same obligations in respect of conservation
measures as defined by article 6 of the Habitats Directive. However, there
appears to be nothing in either directive to link the concept of “favourable
conservation status” as such to the general obligations under article 2 of the
Birds Directive, which apply to all wild birds, not just those defined for
special protection under article 4 or otherwise.
The courts below
21. On 24 September 2013, the Lord Ordinary gave judgment reducing the
ministers’ decision on the grounds (apparently first raised by the court itself)
that in the absence of a licence granted under section 6 of the Electricity Act
the ministers had no power to grant consent. That ground of decision was not
supported by these appellants or any other party to the present proceedings,
and it was not followed by Lord Doherty in a later case: Trump International
Golf Club Scotland Ltd v Scottish Ministers [2014] SLT 406. The Inner
House (para 19) agreed with his reasoning. It is unnecessary to consider the
point further.
22. The Lord Ordinary held in the alternative that the ministers had failed to take
proper account of their obligations under the Birds Directive. She criticised
the ministers for failing to “address explicitly legal issues arising out of the
[directive] and explain their approach to decision making …” (para 239). In
a long section (paras 245-291) she undertook her own detailed interpretation
of provisions of the directive, followed by a discussion of their application to
the facts of the case. Without disrespect, I hope it is sufficient to highlight
what appear to be the key points in the discussion.
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23. She identified what she understood to be the respective positions of the
parties:
“[258] In summary, the fundamental dividing line between the
interpretation put forward by the petitioners compared with that
advanced on behalf of the respondents and interested party is
that the petitioners maintain that article 2 sets down a common
standard which requires to be met that the population of the
species, in this case whimbrel, are to be maintained at a level
which corresponds in particular to ecological, scientific and
cultural requirements and that obligation rests on the State. …
There is discretion in how article 2 is to be implemented but
not discretion as to whether it is to be implemented or not.
[259] In contrast, the respondents submit that the reference to
maintaining the population in article 2 is subject to other
considerations … (which) at a minimum included economic
and recreational requirements. It is a balancing exercise … The
final position of the respondents was to say in effect that wind
farm energy production contributing to climate change targets
out-balanced or outweighed ‘the obligation’ of maintaining the
population of whimbrel to the level specified in article 2.”
24. In resolving that issue she attached particular weight to the opinion of
Advocate-General Fennelly in the Lappel Bank case (see above) as to the
limited role of economic and recreational requirements even under article 2
(paras 260-264). She also attached weight to the obligation of the state in
respect of migratory species under article 4(2). The accepted position was
that, despite the existence of the Fetlar SPA, whimbrel were not in
“favourable conservation status” in the Shetlands or the United Kingdom.
This raised the question whether the designation of that area was fulfilling
the obligations of the United Kingdom under that article, and if not “what the
implications of that were for the decision making in this case”. It was
necessary for the decision maker to give “some indication that they have
addressed the issues as envisaged in the Directive”. Taking account of “the
problems with the existing conservation status of whimbrel”, there was no
reasoning to explain why the Fetlar SPA site provided sufficient protection
and exhausted their obligation under article 4(2) of the directive (para 272).
25. As to the HMP, there was no explanation as to why the ministers, departing
from the view of SNH, and “in a situation where it is not disputed that the
reasons for the whimbrel decline are not known and the habitat management
plan is untried and untested in Shetland in relation to whimbrel”, were able
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to conclude that the HMP would provide “some unspecified level of
mitigation” (para 285). Further, in her view, there was “the fundamental
difficulty” that the ministers had failed to take the directive as “the starting
point” for consideration of the facts. Article 2 imposed an obligation to take
requisite measures to maintain whimbrel at “an appropriate level”, which, in
her opinion, would involve “addressing the issue of what is required by article
2 in respect of whimbrel in this case”. These were not pure questions of fact,
but “matters of mixed fact and law”. The ministers had failed to address these
issues, except by way of a “balancing exercise” taking account of the benefits
of the project in relation to meeting EU climate change targets – an exercise
which in her view was not permitted by the directive (paras 286-289).
26. On appeal, the approach of First Division was radically different. In the single
opinion of the court, delivered by Lord Brodie, they criticised the Lord
Ordinary for addressing the wrong question:
“The question which should have been the focus of the Lord
Ordinary’s attention was whether the grant of consent by the
Scottish Ministers had been a lawful decision, once due
account was taken of, inter alia, the Wild Birds Directive.
Instead, the Lord Ordinary applied herself to the rather
different question as to whether the Scottish Ministers, in their
decision letter, had demonstrated that they had fully understood
and complied with their on-going obligations under the
Directive in respect of the United Kingdom population of
whimbrel, irrespective of the likely effect on it of a consent to
the development.” (para 26)
27. Whether the development was likely to have a materially adverse effect on
the bird populations protected by the directive was “an entirely factual
question” for the ministers to determine. They had concluded that increased
mortality was unlikely but in any event were not satisfied that, even without
mitigation by virtue of the HMP, the impact was of significance in relation
to the conservation of the species. In the view of the court:
“Once that conclusion was arrived at, the Wild Birds Directive,
and any associated problems of interpretation and application,
fell out of the picture as far as this proposal was concerned.”
(para 27)
Although the decision letter had not referred expressly to the directive, it was
clear to an informed reader that the decision had been made having regard to
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SNH’s assessment which referred to specific provisions of the directive (para
29). The Lord Ordinary’s criticism of the ministers’ reasoning in relation to
their duties under article 4(2) reflected the erroneous view that they were
required to satisfy themselves as to their performance of those duties as a
preamble to consideration of the application (para 30). Once they had decided
that “the development would have no significant adverse impact, and might
possibly be beneficial”, the issue of what was required by article 2 in respect
of the whimbrel was “one that it was unnecessary to explore.” (para 31)
The issues in the appeal
28. In this court, the appellants submit that the ministers approached the
whimbrel on the wrong basis in law. In summary they make the following
main points:
i) The ministers considered the impact of the development on the
whimbrel, but 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 – in effect to bring the whimbrel up to
“favourable conservation status”.
ii) More particularly, in the light of the detailed information made
available in connection with the application, they should have appreciated
that the mainland territory now appeared to be the most suitable territory for
classification as a special protection area under article 4(2); and they should
have considered what further “special conservation measures” were required,
for example the closing down of the windfarm during whimbrel migratory or
breeding months.
iii) They acknowledge that SNH had made no reference to article 4(2), but
this was an error which could not excuse the ministers’ failure to have regard
to the obligation imposed on them by that provision.
iv) In so far as the ministers relied under article 2 on “balancing”
considerations relating to climate change benefits or other economic
considerations, these were not relevant in law.
v) Any doubts about the interpretation of the directive should be resolved
by a reference to the CJEU.
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Discussion
29. The first two points reflect the principal difference between the courts below,
which lay in their respective assessments of the role of the ministers in
considering a proposal of this kind. The Lord Ordinary treated it as requiring
them in effect to conduct a full review of their functions under the Birds
Directive, with a view to considering how the present proposal would
contribute to or fit in with those functions, and in particular the objective of
bringing the whimbrel up to “favourable conservation status”. The Inner
House took a more limited view. The directive was but one of a number of
material considerations to be taken into account in reaching a lawful decision
whether to grant consent under the Electricity Act 1989.
30. In principle, in my view, the Inner House were clearly right. The ministers’
functions in this case derived, not from the directive, but from their statutory
duty to consider a proposal for development under the Electricity Act 1989.
The range of issues potentially relevant was apparent from their summary of
the large number of representations for and against the proposal. As has been
seen, the Act contained specific reference to conservation of wildlife
(“fauna”) and mitigation of any adverse effects of a development. The
Ministers were also required by the relevant regulations to take account of
the information provided by the environmental assessment.
31. The directive did not in terms impose any specific requirements in respect of
this particular development proposal, but it was rightly accepted as part of
the legal background against which its effects needed to be considered. In
considering those matters the ministers would be expected to attach weight
to the views of statutory consultees such as SNH, and other expert bodies
such as the RSPB, but (as is accepted) they were not bound by their advice. I
agree with the Inner House that although the decision-letter did not mention
the directive as such, the detailed consideration given to the advice of SNH,
with specific reference to its provisions, leaves no serious doubt that it was
taken into account, as part of the “obligations under EU environmental
legislation” to which the letter referred.
32. I would not therefore agree with the Lord Ordinary that the “starting point”
for consideration of this proposal was to establish the precise scope of the
duties imposed by article 2, and for that purpose to determine “an appropriate
level” for the whimbrel population. That was not the issue facing the
ministers in the context of their consideration of this proposal under the
Electricity Act 1989. Their duty was to determine whether to grant consent
to a particular development proposal, taking account of all material
considerations for or against, of which the directive formed part.
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33. On the other hand, it does not follow that, once it had been decided that the
impact on whimbrel population was not of significance, the directive (in the
words of the Inner House) “fell out of the picture”. If there had been evidence
that the proposal, while having no significant effect in itself on the whimbrel
population, might prejudice the fulfilment of the ministers’ duties under the
directive, that would have been a potential objection which required
consideration. That in effect is the substance of the appellants’ second point
in the summary above, relying on the more specific obligations under article
4(2).
34. Their difficulty is that their suggestions are unsupported speculation, and
were not raised by anyone in the representations on this proposal – whether
by the expert bodies or anyone else. As the appellants acknowledge, it was
the investigations conducted in connection with this proposal, as reported in
the environmental statement and its addendum, which highlighted the present
status of the whimbrel in the area of the proposed windfarm and elsewhere in
the islands. It appears to be the case, perhaps paradoxically, that one of the
areas which has seen the largest decline has been the Fetlar special protection
area itself, as compared to a smaller decline in the mainland area in which the
proposal is situated. The reasons for that may be open to debate, but they
were not in issue in this statutory process. If SNH (or indeed the appellants)
had thought it necessary or appropriate to call for designation of further areas
or other special measures under article 4(2), they could have raised that as an
issue, and the developers would have had an opportunity to address it. There
is no reason to think that SNH’s omission to do so reflected, as the appellants
imply, any misunderstanding of the law or the material facts.
35. It is clear in any event that 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. This
is not, as the appellants submit, to “rely on their own failure to fulfil their
obligations under the Birds Directive as a reason for allowing the wind farm”.
There is no evidence of any allegation, by SNH or any other responsible
body, of a failure by the UK to comply in this respect with its obligations
under article 4(2). We have been shown post-decision correspondence of the
Shetland Bird Club with ministers and with the European Commission,
which shows that the status of SPAs in the Shetland Islands is under
continuing review, but it contains no suggestion that the present position was
or is regarded as having involved any breach of the directive. In any event,
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as I have said, the performance of the UK’s duties under the directive was
not in issue.
36. In summary, the ministers were entitled to regard the limited anticipated
impact on the whimbrel population, combined with the prospect of the HMP
achieving some improvement to their conservation status more generally, as
a sufficient answer to the objections under this head.
37. The fourth point raised by the appellants relates to the ministers’ reliance on
“balancing considerations” – renewable energy and climate change benefits –
to override any objections under the directive. The relevance in law of that
balance was identified by the Lord Ordinary as a primary issue between the
parties, which she determined in favour of the appellants. Although the
parties have maintained their positions in this court, the ministers’ primary
submission, as I understood Mr Thomson, was that it is unnecessary for the
court to determine that issue if they succeed on the other issues. It is clear, he
submits, from the context of that passage in the letter that the balancing
considerations there referred to represented a “fall-back position” which
would only come into play if the primary reasoning were not to be accepted.
As environment-related benefits, they in turn were distinguished from the
more general “economic benefits” properly relied on in a later part of the
letter as outweighing the remaining landscape and visual impacts of the
development.
38. I agree with this interpretation of the letter, and its consequences for the
appeal. As the Inner House accepted, the interpretation of article 2 raises
some difficulties, one of which is the precise role of the economic factors
there referred to. Another is the obligation of member states in relation to
setting an appropriate level for the maintenance of different species, which
the Lord Ordinary identified as the starting point. Since article 2 applies to
wild birds of all kinds, regardless of their scarcity or vulnerability, it seems
unlikely that it was intended to require an equally prescriptive approach in all
cases, by contrast for example with the more specific measures required for
the particular species protected by article 4. Although some guidance is
provided by the existing European jurisprudence, the need for a further
reference may arise in an appropriate case in which the resolution of these
issues is necessary for a decision. This is not such a case. In those
circumstances it is better to leave further discussion in this court until then.
Page 16
Conclusion
39. For these reasons I would dismiss the appeal and confirm the order of the
Inner House.
