The RSPB has successfully challenged the decision of the Scottish Government to grant consent for three major offshore windfarm projects in the outer Firth of Forth, meaning that the development permissions for the Neart na Gaoithe, Seagreen and Inchcape projects have been judicially cancelled.
Why have the permissions been cancelled?
In a 114 page lengthy and closely argued judgement published on 19 July 2016, Lord Stewart of the Court of Session in Edinburgh said that the decisions of the Scottish Government were seriously flawed, both in terms of procedure and substance. The main reasons were:
- The failure to properly consult RSPB and the statutory natural heritage bodies (Scottish Natural Heritage and the Joint Nature Conservation Committee), particularly in relation to analysis and data obtained by Marine Scotland at the end of the consultation process.
- The Scottish Ministers should not have made the decision on the basis of this un-consulted on material.
- There was a reliance on novel methodologies in relation to calculation of what would happen to bird populations in the absence of the projects, and these methodologies had not been consulted on or peer reviewed.
- There was a failure by Marine Scotland and the Scottish Ministers to interrogate reasonable scientific doubts about the impact on protected bird populations.
- There was a failure to properly take into account the whole life impact of the projects on the protected bird populations, assessed over the 25 year period of the lives of the projects.
- It was wrong to rely on Marine Scotland’s conclusions which derived from in-house advice which relied on contested science and was disputed by RSPB and the statutory natural heritage bodies.
The judge suggests that RSPB was "frozen out" of the process of considering the impact of the projects on bird populations towards the end of the process. There seems to be a suggestion in the judgement that Scottish Ministers and Marine Scotland used innovative techniques in order to reach an unreasonable conclusion that there would be no adverse impact on the protected bird populations.
Is the decision final?
No – the Scottish Government and the developers could seek to appeal the decision to a higher court of the Court of Session. Ultimately, an appeal might be possible to the Supreme Court in London. However, it is perhaps more likely that the developers will make a new application or applications, possibly for a smaller number of turbines in positions which would give rise to less impact on the bird populations.
Are these projects dead?
This will depend on the appetite of the developers to expend further money on pursuing applications and on their ability to overcome the criticisms made by the judge. The judge does suggest that "there are quantitative options, both as to how many and which projects are to be consented and as to the number, spacing or density and height of the turbines..." – tending to suggest that smaller schemes may still be capable of being consented.
Aside from the risk of securing consents, the developers would need to evaluate the availability of subsidy contracts from the UK Government in the form of “Contracts for Difference”. The Neart na Gaoidhe CfD has already been terminated by the government company which issues subsidy contracts, although that decision is subject to a current arbitration.
Is offshore wind development in Scottish waters dead generally?
No – this latest decision is highly site specific, but underscores the significant difficulty in securing consent for projects which have an adverse impact on "European Sites". Where there is such an adverse impact on European Sites, politicians have a very limited ability to authorise such impact. In essence, European sites have "legal protection" from degradation, even if it is politically supported.
What are the main lessons to be learned?
To succeed in an application which impacts European sites:
- The developer must ensure that the bird data fully assesses the existing size and health of populations and the likely impact on populations, both in the "do nothing world" and where the project is completed.
- There may be merit in ensuring that any preliminary technical conclusions about impact on any European Site are subject to external consultation before proceeding with a political decision.
- Depriving bodies like RSPB and the natural heritage bodies of access to all data and the opportunity to comment on it is likely to be counter-productive.
- Proceeding with an application where the natural heritage bodies conclude that there is an adverse impact is likely to be very difficult.
Disclaimer
The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.