Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 104

P29/15

OPINION OF LORD STEWART

in the Petition of

THE ROYAL SOCIETY FOR THE PROTECTION OF BIRDS

Petitioner;

for

Judicial Review of (1) a decision of the Scottish Ministers dated 10 October 2014 granting consent for the construction of the Neart na Gaoithe Offshore Wind Farm in terms of the Electricity Act 1989 section 36 and (2) a consent decision of the Scottish Ministers dated 15 September 2014 for construction of the Neart na Gaoithe Offshore Wind Farm and related works in terms of the Marine Works (Environmental Impact Assessment) Regulations 2007 reg. 22

and Answers for

THE SCOTTISH MINISTERS

                                                                                                                        Respondents;

and

NEART NA GAOITHE OFFSHORE WIND LIMITED

                                                                                                                        Interested Party

Petitioner: James Findlay advocate, Laura-Anne van der Westhuizen advocate; Campbell & McCartney solicitors

Respondents: Mure QC, Ruth Charteris advocate; Scottish Government Legal Directorate

Interested party: MacKenzie solicitor advocate; Shepherd & Wedderburn LLP

Inch Cape Offshore Limited: Thomson QC; CMS Cameron McKenna solicitors

Seagreen Wind Energy Limited: Ailsa Wilson QC, Marcus McKay advocate; Gillespie Macandrew LLP

18 July 2016

[1]        This is a challenge directed at two of the several decisions by the Scottish Ministers which together give, or support authorisation for a marine electricity generating project to be known as the Neart na Gaoithe offshore wind farm. The Neart na Gaoithe project lies in the Scottish area of the North Sea about 15 kilometres, at the nearest point, from and to the east of Fife Ness. Neart na Gaoithe has been consented by the Scottish Ministers for 75 wind turbines with a generating capacity of 450 MW. The estimated life of the generating station is 25 years.  A location chart can be found here. 

[2]        The challenge to the Neart na Gaoithe consents is brought by way of Petition for judicial review. The petitioner is the Royal Society for Protection of Birds, Scotland [“the RSPB”]. The consents which are challenged by the RSPB are an Electricity Act 1989 section 36 decision and a Marine Works (Environmental Impact Assessment) Regulations 2007 reg. 22 consent decision. These consents are decisions of the Scottish Ministers. The ministers are the respondents to the RSPB Petition. The developer Neart na Gaoithe Offshore Wind Limited has answered the Petition as an interested party.

[3]        The RSPB has concerns about the effects on bird life of the Neart na Gaoithe project and three other offshore wind farm projects in the Forth and Tay area. The other projects are Inch Cape, Seagreen Alpha and Seagreen Bravo. The RSPB’s challenge to the Neart na Gaoithe consents is identical in its terms to the RSPB’s challenge to the Inch Cape consents. The issues are broadly the same and I shall dispose of the petition in the same way as I have disposed of the Inch Cape petition, by granting it.  My reasons are given in the Opinion in the Inch Cape proceedings, P28/15, also published today.  This Opinion assumes familiarity with the Inch Cape Opinion.

[4]        Parties tell me that the ministers’ consents for all four wind farm projects—Inch Cape, Seagreen Alpha, Seagreen Bravo and Neart na Gaoithe—are in the same terms. This is wrong. The critical passage in the Neart na Gaoithe section 36 decision is [6/1, 24]:

“THE SCOTTISH MINISTERS’ CONSIDERATION OF THE ENVIRONMENTAL INFORMATION

“The Scottish Ministers are satisfied that an ES [environmental statement] has been produced in accordance with the 2000 Regulations and the applicable procedures regarding publicity and consultation laid down in the 2000 Regulations have been followed.

“The Scottish Ministers have taken into consideration the environmental information, including the ES and SEIS [supplementary environmental information statement], and the representations received from the consultative bodies, including SNH, SEPA, and from Fife Council, Scottish Borders Council, East Lothian Council, Angus Council, Dundee Council and from all other persons.

“The Company, at the time of submitting the Application, was a licence holder authorised to generate, distribute, supply or participate in the transmission of electricity when formulating “relevant proposals” within the meaning of paragraph 1 of Schedule 9 to the Electricity Act. The Company obtained a generation licence during the period whilst the Scottish Ministers were determining the application for consent. The Scottish Ministers have, from the date of the Application for consent, approached matters on the basis that the same Schedule 9, paragraph 3(1) obligations as applied to licence holders and the specified exemption holders should also be applied to the Company. The Scottish Ministers have also, as per regulation 4(2) of the 2000 Regulations, taken into account all of the environmental information and are satisfied the Company has complied with their obligations under regulation 4(1) of those Regulations.”

This can be contrasted with the equivalent passage in the Inch Cape section 36 decision quoted in the Inch Cape Opinion. Most importantly, unlike the Inch Cape wording the Neart na Gaoithe text just quoted has no reference to the “AA” or “appropriate assessment” in terms of the Habitats Regulations. The question is whether the quoted Neart na Gaoithe passage means what is says.

[5]        My answer to the question is necessarily tentative because no submissions are made by any party. It would be unprofitable to prolong the first-instance decision-making by scheduling a further diet to seek parties’ assistance.

[6]        It can be inferred that the quoted passage does not mean what it purports to say. Notwithstanding the omission I infer that the ministers have taken into consideration the “appropriate assessment” in terms of the Habitats Regulations, or the material supporting the “appropriate assessment”, as, or as if part of the “environmental information” in terms of the EIA Regulations. The reasons are: first, the supplementary environmental information statement [SEIS] referred to in the passage does in fact contain a Habitats Regulations appraisal [HRA] of the impacts on the integrity of the European sites including avian SPAs; secondly, the “environmental information” is defective for EIA Regulations purposes unless it includes the material, data and methods, supporting the “appropriate assessment”; and, thirdly, the multiple references to the “appropriate assessment” in the Neart na Gaoithe section 36 decision, most of which would otherwise be redundant, are consistent with the “appropriate assessment” being treated as part of the information required for a complete EIA Regulations assessment. I make this last point recognising that the section 36 decision is a planning decision which can have regard to environmental considerations in a general way and not just as mandatory factors in terms of the EIA Regulations and the Habitats Regulations.

[7]        The Neart na Gaoithe SEIS, which was presented, published, notified and consulted on as “supplementary information” in terms of the Electricity Works EIA Regulations, evidences the first two points. The SEIS states, correctly in my view, that “impacts on designated sites (including SPAs) should be considered as part of the EIA Regulations”. The SEIS presents the supplementary information for “dual use” under both the EIA Regulations and the Habitats Regulations. Thus, it is stated that the information in the SEIS Appendix 3 “has been used to verify the conclusions as presented in the project’s original ES [environmental statement] in particular Chapter 11: Nature Conservation, supported by an updated Ornithological Technical Report”, and to provide “clarification on a number of points to inform HRA and/or an Appropriate Assessment (AA) for Special Protection Areas (SPAs)” [13/89 on pen drive, Addendum Ornithology Appendix 1 - Technical Report, § 2.4; Addendum Ornithology Appendix 3 – HRA (SPAs); Appendix 3, 11, §§ 5 and 8].

[8]        Moving then to the question of how impacts on SPAs are to be described, predicted and evaluated, under the heading “Determining Adverse Effect” the Neart na Gaoithe SEIS states [Appendix 3, 28, §§ 88—90]:

“88      There is no guidance available on how to qualitatively assess an adverse effect as required by the Birds Directive [sic]. This HRA uses quantitative data obtained from three years of site specific surveys and detailed analysis often using models in order to obtain a measure of the potential impact.

89        One possible approach to determine whether there will be an adverse effect is to assess the predicted magnitude of impact against a population threshold below which it may be concluded that no adverse effect may occur or above which, it is considered that there may be an adverse effect. With respect to impacts on birds this often [sic] considered to be an impact measured against 1% of the breeding population or 1% of the baseline mortality rate. This is latter [sic] threshold is based on a European Commission (EC) report on the application of the Birds Directive and although does not relate [sic] specifically to impacts from wind farms does provide suitable guidance against which an assessment can be made (EC, 2000). If there is an increase in the baseline mortality rate of more than 1% then there is the potential for an adverse effect. However, advice received on the application is that this approach is not acceptable (SNH, 2012). In the absence of further advice this HRA has not based any of its conclusions on the whether [sic] the potential effect is less or greater than the 1% baseline mortality of the population. However, for information purposes the relevant 1% baseline mortality are presented [sic] in (Table 7.2)

90        The assessment presents the relevant information to inform an HRA, including where appropriate the baseline mortality rate, the population trend and the status of the SPA population. This information can be used to determine whether an adverse effect will occur.”

The ministers could not have considered this supplementary information properly unless they also took into consideration how the information was developed with the help of Marine Scotland Science [MSS] through their Habitats Regulations “appropriate assessment”.

[9]        The assessment of effects on Forth Islands kittiwake is an example. The Neart na Gaoithe SEIS states [Appendix 3, 66, § 254]:  

“254    The potential [annual] loss of up to 0.5% of the breeding population would not cause an adverse effect on the integrity of the Forth Islands SPA, in light of the qualifying interests, their condition and vulnerabilities and the conservation objectives. Population Viability Analysis is currently being undertaken by Marine Scotland to inform this conclusion.”

“This conclusion” is now “informed” by the Forth Islands kittiwake population viability analysis [PVA] as interpreted in the “appropriate assessment” using ABC and scalar to set and adjust the threshold, offering a threshold figure of 2.4% additional, annual, breeding-population mortality [6/4, 27, Table 5; see the Inch Cape Opinion].  

[10]      As regards the third point, reference can be made to three example passages in the Neart na Gaoithe section 36 decision. These are, first, the sub-section “Impact on marine wildlife, including birds” in relation to whether an inquiry should be held in terms of the Electricity Act 1989, sched. 8, para. 3(2), second, the sub-section “The impacts on birds” within the section “The Scottish Ministers’ Consideration of the Application” and, third, the final summary, the first three bullet points [6/1, 20, 26—28, 38].

[11]      The ministers’ determination that “it is not appropriate for a public inquiry to be held” proceeds on the basis that the ministers “possess sufficient information upon which to determine the Application” and that “the objectors have been afforded every opportunity to provide information and to make representations”. This is about an Electricity Act 1989 inquiry. In relation to the outstanding objection by the RSPB, the ministers state: “An AA [appropriate assessment] completed by MS-LOT [Marine Scotland Licensing Operation Team], concluded that the Development will not adversely affect site integrity of any SAC or SPAS considered to have connectivity with the Development.”

[12]      As discussed in the Inch Cape Opinion the ministers have not in fact consulted on the “appropriate assessment”. The ministers justify their stance as follows [6/4, Introduction, 2—3]:

““Those [Habitats] Regulations allow for the competent authority to consult the general public on the AA [appropriate assessment] if they consider it appropriate. This has not been done as the general public have already had the opportunity to respond to the applications through the Environmental Impact Assessment (“EIA”) process where information regarding the potential impacts on European protected sites was available in the Environmental Statements (“ESs”) provided for [Neart na Gaoithe, Inch Cape and Seagreen]. The Supplementary Environmental Information Statements (“SEISs”) submitted for [Neart na Gaoithe and Seagreen] were also made publically [sic] available and consulted on... [I]t was not deemed appropriate to consult the general public further.”  

Thus, it seems that the decisive consideration so far as the RSPB’s objection is concerned is the conclusion of the unconsulted-on “appropriate assessment”, although it is claimed that every opportunity for making representations has been afforded for Electricity Act 1989 and Electricity Works EIA Regulations purposes [6/1, 20, 24; 6//4, Introduction, 2—3].

[13]      In the second example passage the Neart na Gaoithe section 36 decision narrates:

“The impacts from the Development were detailed by the Company and further refined by MSS, SNH and the JNCC. Several methods were used by SNH, the JNCC and MSS to determine levels of acceptable change…”

This should be understood to mean that MSS “refined” the SEIS submitted by Neart na Gaoithe Offshore Wind Limited with new data and methods not included in the SEIS. The “refinement” includes developing a “common currency” for the regional “appropriate assessment”, and undertaking the regional “appropriate assessment” using new impact and population modelling and forecasting methods including extended Band model option 3, ABC, ruABC and scalar. “Forecasting methods used to assess the effects on the environment” are meant to be included in the environmental statement, and therefore to be subject to publication, notification and consultation [EIA Directive 2011/92/EU, art. 5(1) and (3), Annex IV, 4; Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2000 (as amended) sched 4, 3].

[14]      It is also the case that, for the purpose of any in-combination assessments the Neart na Gaoithe SEIS has been supplemented by information about the Inch Cape project which was not available at the point in time when the Neart na Gaoithe SEIS was submitted [eg, 13/89 on pen drive, Addendum Ornithology Appendix 1 - Technical Report, 70] .

[15]      The Neart na Gaoithe section 36 decision is the only one of the four Forth and Tay section 36 decisions which does not mention the “appropriate assessment” under the heading “The Scottish Ministers’ Consideration of the Environmental Information”. All four decisions are signed on the same day by the same person, namely the leader of the Marine Scotland Licensing Operations Team. No explanation for the difference is offered by the ministers or, indeed, by Neart na Gaoithe, the interested party. The only rational basis that I can see for a different approach is that the Neart na Gaoithe “environmental information” is complete without the “appropriate assessment” whereas the “environmental information” supporting the other three applications is not. This explanation does not stand up given the extent to which the “environmental information” for all four projects equally has been “refined” through the in-combination “appropriate assessment” process.

[16]      On balance I am persuaded that the absence of a reference to the “appropriate assessment” in the Neart na Gaoithe section 36 decision, under the heading “The Scottish Ministers’ Consideration of the Environmental Information”, is a mistake. If the material which supports the “appropriate assessment” has not in fact been taken into consideration as if part of the “environmental information”, that is a decision-making error. It is an error on the basis that the “environmental information” without the “appropriate assessment” material is inadequate. The ministers could not rationally think otherwise, particularly given their approach to the assessment of impacts on the SPAs at Fowlsheugh and Forth Islands. Without the “refinement” undertaken by MSS through the “appropriate assessment”, the “environmental information” submitted by Neart na Gaoithe does not allow impacts to be measured against quantitative thresholds in a way that is useful to the ministers as decision-makers with a proactive sustainable energy policy [see paragraph 8 above].    

[17]      If I am wrong about the foregoing, the Neart na Gaoithe decisions are in any event flawed for all the other reasons discussed in the Inch Cape Opinion.  The Neart na Gaoithe project is the one most affected by the move to classify a Forth & Tay marine SPA. The project is within the draft boundaries of the site.

[18]      In the result I shall sustain the RSPB’s four pleas-in-law. I shall repel the ministers’ second, third and fourth pleas-in-law. I shall repel all six pleas-in-law tabled for Neart na Gaoithe and pronounce decree of reduction and declarator. In the meantime all questions of expenses will be reserved.