Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 105

P30/15

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 Seagreen Bravo 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 Seagreen Bravo 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

SEAGREEN WIND ENERGY 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 (Seagreen Bravo): Ailsa Wilson QC, Marcus McKay advocate; Gillespie Macandrew LLP

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

Neart na Gaoithe Offshore Wind Limited: MacKenzie solicitor advocate; Shepherd & Wedderburn 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 Seagreen Bravo offshore wind farm. The Seagreen block lies in the Scottish area of the North Sea about 27 kilometres, at the nearest point, from the Angus coast. The roughly rectangular block is divided diagonally south-west to north-east. The northern triangle is known as “Seagreen Alpha”.  The southern triangle is called “Seagreen Bravo”. Seagreen Bravo has been consented by the Scottish Ministers for 75 wind turbines with a generating capacity of 525 MW.  The estimated life of the generating station is 25 years.  A location chart can be found here.

[2]        The challenge to the Seagreen Bravo 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 the 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 Seagreen Wind Energy Limited has answered the petition as an interested party.

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

[4]        Parties tell me that the Ministers’ consents for all four wind farm projects—the Inch Cape, Seagreen Alpha, Seagreen Bravo and Neart na Gaoithe—are in the same terms. This is not so. The critical passage in the Seagreen Bravo section 36 decision is [6/4, 24]:

“THE SCOTTISH MINISTERS’ CONSIDERATION OF THE ENVIRONMENTAL INFORMATION

“The Scottish Ministers are satisfied that an ES has been produced in accordance with the 2000 Regulations and the 2007 Regulations and the applicable procedures regarding publicity and consultation laid down in the 2000 and 2007 Regulations have been followed.

“The Scottish Ministers have taken into consideration the environmental information, including the ES, the SEIS, the SEIS Erratum, the AA [appropriate assessment] and the representations received from the consultative bodies, including JNCC, SNH, SEPA, Angus Council, and Fife Council and from all other persons.

“The Company, at the time of submitting the Application, was a licence holder authorised to generate electricity for the purpose of giving a supply to any premises in the area specified in Schedule 1 of the Licence, or enabling a supply to be so given during the period specified in paragraph 3 of the licence, subject to the terms and conditions specified therein. The Minister and his officials 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 and regulation 22 of the 2007 Regulations, taken into account all of the environmental information and are satisfied the Company has complied with their obligations under regulation 4(1) of the 2000 Regulations and regulation 12 of the 2007 Regulations.”

This can be compared and contrasted with the terms of the equivalent passage in the Inch Cape section 36 decision quoted in the Inch Cape Opinion.  However, I am satisfied that the wording is substantially similar and that the differences make no difference to the outcome.

[5]        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 seven pleas-in-law tabled for Seagreen Bravo and pronounce decree of reduction and declarator.  In the meantime all questions of expenses will be reserved.