A decision to halt plans for four offshore wind farms has been reversed by Lord Carloway, Scotland’s most senior judge, in the Court of Session.
Lord Carloway ruled that his colleague Lord Stewart was wrong to allow a legal challenge which stopped the developments going ahead.
RSPB Scotland opposed the developments in the Firth of Forth and Firth of Tay over concerns for wildlife. Scottish ministers approved the Inch Cape, Neart na Gaoithe and Seagreen Alpha and Bravo projects in 2014. The projects could generate enough power to supply the equivalent of 1.4 million homes.
The RSPB took the matter to the Court of Session in Edinburgh because it thought the Scottish government had acted unlawfully. The organisation argued that the farms put birds such as the puffin, the gannet and kittiwake at risk. In July 2016, Lord Stewart said: he agreed with the arguments made by the RSPB’s legal team. He ruled that Scottish ministers had breached legal requirements to give proper consideration to the areas being a haven for rare wild life. Lord Stewart also found the government failed to properly consult interested parties over the environmental impact and that ministers had acted unlawfully by taking into account ‘unconsulted information’ while they made their decisions.
However, Lord Carloway – who was sitting with fellow judges Lord Menzies, and Lord Brodie – ruled his colleague had interpreted the law incorrectly. The Lord President found the Scottish government acted properly and gave proper consideration to the areas being a home for rare wildlife. In his judgement, Lord Carloway said the process of informing the public about the environmental impact had been ‘fully complied with’.
He added: ‘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 respondent’s decision 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.’
RSPB Scotland director Stuart Housden said the organisation was ‘hugely disappointed’ at the judgement. The judgement has been welcomed by the wind farm developers. Energy Minister Paul Wheelhouse said: ‘The Scottish government remains strongly committed to the development of offshore wind energy, as this key low-carbon technology offers a huge economic opportunity for Scotland. But, crucially, through helping to decarbonise our electricity supply, it also has a key role to play in our fight against the threat posed by climate change to both our society and our natural environment. Clearly, protecting Scotland’s marine environment is of paramount importance and at the heart of the Scottish government’s approach to offshore renewable energy applications, and we are keen to work constructively with both the RSPB and renewable energy developers to ensure the sector has a bright future in Scotland.’
See the RSPB website for background and view the RSPB Scotland response
Find out more at BBC Scotland
