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RECLAIMING MOTION IN PETITION SUSTAINABLE SHETLAND AGAINST THE SCOTTISH MINISTERS AND VIKING ENERGY PARTNERSHIP FOR JUDICIAL REVIEW


Submitted: 09 July 2014

 

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

 

 

[2014] CSIH 60

Lord President

Lord Menzies

Lord Brodie

 

P698/12

OPINION OF THE COURT

delivered by LORD BRODIE

 

in the reclaiming motion

 

in the petition of

 

SUSTAINABLE SHETLAND

Petitioners and Respondents;

 

against

 

THE SCOTTISH MINISTERS

Respondents and Reclaimers;

 

and

 

VIKING ENERGY PARTNERSHIP

Interested Party:

 

for judicial review of a decision of the Scottish Ministers dated 4April 2012

_______________

 

 

For petitioners and respondents:  Sir Crispin Agnew QC; Drummond Miller LLP

For respondents and reclaimers:  Thomson QC, Sheldon; Scottish Government Legal Directorate

For interested parties:  Viking Energy Partnership: Wilson QC, M McKay; Gillespie Macandrew LLP

9 July 2014

Introduction
The application for and grant of section 36 consent
[1]        By application dated 19 May 2009 and addendum to the application dated 30 September 2010, the Viking Energy Partnership (VEP), applied to the Scottish Ministers for:

(i)         Consent under section 36 of the Electricity Act 1989 (the Electricity Act) for construction and operation of the Viking Wind Farm on central Shetland, with a generation capacity of up to 457 MW;

(ii)        A direction under section 57(2) of the Town and Country Planning (Scotland) Act 1997 (the Planning Act) that planning permission be deemed to be granted in respect of that generating station and any ancillary developments.

The proposed development covered an area on mainland Shetland of approximately 50 square miles.  As initially proposed, the principal development involved the erection of 127 wind turbines in three sectors:  Delting (24 turbines), Kergord (46 turbines) and Nesting (57 turbines).  Associated works included 104 kilometres of access tracks; the making of quarries and borrow pits; excavation of up to 919,310 cubic metres of peat with substantial peat reused;  and the construction of electrical substations.  The disturbance footprint was specified as up to about 232 hectares with a permanently affected area of about 104 hectares.  Works were to be phased over a five-year period.

[2]        The proposed development was an EIA development for the purposes of the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2000 (the EIA Regulations).  Accordingly, the Scottish Ministers could not grant section 36 consent without consideration of environmental information in the form of an environmental statement.

 

Objection by Sustainable Shetland
[3]        Among the bodies which objected to the proposed development was Sustainable Shetland.  Its objection was that there would be adverse visual, landscape and environmental impacts on Shetland; that it was contrary to the development plan; and that relevant decision-making was flawed by reason of a conflict of interest on the part of members of Shetland Islands Council, the planning authority, by reason of its involvement with Viking Energy Limited, one of the partners in VEP, through the Shetland Charitable Trust.  Sustainable Shetland represented to the Scottish Ministers that if the application for section 36 consent was not to be immediately refused the matter should be referred to a public local inquiry.

 

The representations by Scottish Natural Heritage relating to the whimbrel
[4]        In its letter of 24 July 2009, SNH intimated objections to the proposed development, inter alia, in respect of ornithological interests by reason of the magnitude of the predicted impacts on a number of bird species, including the whimbrel.  The letter included the following:

“In respect of ornithological interests, SNH objects due to the magnitude of the predicted impacts on red-throated diver, merlin, golden plover, dunlin, whimbrel, arctic skua, lapwing, curlew and great skua.  From the collision risk and displacement information presented in the [environmental statement (‘ES’)] SNH consider that the favourable conservation status of these species is likely to be adversely affected over the long term at a regional scale, with red-throated diver and whimbrel also likely to be adversely affected at a national scale. [para 2.3] …”

 

Thereafter the developers adjusted the application.  In light of that, SNH removed its objections on all grounds other than the impact on whimbrel and on landscape and visual amenity.  By letter dated 11 February 2011, SNH clarified its change of position:

Ornithology: we object to the proposal as submitted due to the high likelihood of a significant adverse impact of national interest on the favourable conservation status of the national population of whimbrel, considered under the EU Birds Directive as a regularly occurring migratory species and listed on Schedule 1 of the Wildlife & Countryside Act 1981 (as amended in Scotland).  We do not object but provide advice in relation to adverse impacts on the regional conservation status of 4 EU Birds Directive Annex I species, and 3 other regularly occurring migratory species, all of which are also of conservation concern …

2.         Advice in respect of whimbrel and the EU Birds Directive

Whimbrel [is] 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 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.”

 

The Habitat Management Plan
[5]        As an appendix to its environmental statement addendum, submitted in support of its application for section 36 consent, VEP included a habitat management plan (HMP).  The HMP explains its purpose as follows:

“The purpose of this Habitat Management Plan (HMP) is to provide both the context and the planned actions to offset and compensate for potential remaining adverse effects (following avoidance and minimisation) of the construction, operation and decommissioning of the Viking Wind Farm.  A secondary objective of the HMP is to alleviate the ecological impacts arising from past and present land management practices with the intention of conserving and restoring native habitats within the vicinity of the Viking Wind Farm in such a way that the Viking Wind Farm development will provide a net long-term ecological gain both during and beyond the life of the wind farm.”

 

The HMP contained proposals specific to the whimbrel  and predicted that  implementation of those  proposals would lead to improved whimbrel breeding success, increased whimbrel breeding densities, and protection and recognition of the importance of the “hot spots” for whimbrel thereby lessening the likelihood of insensitive incidental management.

 

Decision of the Scottish Ministers
[6]        In terms of paragraph 3(2) of Schedule 8 to the Electricity Act, where the Scottish Ministers are not required by virtue of paragraph 2(2) to cause a public inquiry to be held (because the planning authority does not object to the section 36 consent) but objections have been sent to the Scottish Ministers by other parties, the Ministers must consider these objections, together with all other material considerations, with a view to determining whether a public inquiry should be held and, if they think it appropriate to do so, cause a public inquiry to be held.

[7]        The Scottish Ministers decided not to cause a public inquiry to be held.  By decision letter dated 4 April 2012, they granted consent under section 36 of the Electricity Act to VEP for the proposed development, with a direction in terms of section 57(2) of the Planning Act that separate planning permission was not required.

 

The application for judicial review
[8]        On 4 July 2012, Sustainable Shetland applied for judicial review seeking reduction of the Scottish Ministers’ decision on the ground that the Ministers had acted unlawfully, and in any event unreasonably, in failing to cause a public inquiry to be held and, separately, that the Ministers had failed properly to take into account their duties under Directive 2009/147/EC (the Wild Birds Directive) in respect of the whimbrel.

[9]        On 7 October 2013, for the reasons set out in her Opinion dated 24 September 2013, the Lord Ordinary reduced the decision.  She rejected the contention that the Scottish Ministers had acted unlawfully or unreasonably in not causing a public inquiry to be held.  However, she held that as VEP had not been granted a licence in terms of section 6 of the Electricity Act or an exemption in terms of section 5, its application for section 36 consent was incompetent, and accordingly that the Scottish Ministers had no power to grant the consent.  She therefore upheld the present respondent’s plea to that effect.  She indicated that had she not sustained that plea she would nevertheless have reduced the consent by reason of the Scottish Ministers’ failure to take proper account of their obligations under the Wild Birds Directive, although she would not have held that the decision was ultra vires as being incompatible with European Union law.

 

The grounds of appeal
[10]      The parties were agreed that the reclaiming motion raised two issues.  The first was whether, on a proper interpretation of the Electricity Act, an application for section 36 consent could competently be made only by a person who held a licence under section 6 or an exemption under section 5 (the competency issue).  The second was whether, having regard to the information before them, the Scottish Ministers had failed to engage with their obligations under the Wild Birds Directive (the whimbrel issue).

 

The relevant legislation
The Electricity Act 1989

4.— Prohibition on unlicensed supply etc.

(1)        A person who—

 

(a)        generates electricity for the purpose of giving a supply to any premises or enabling a supply to be so given;

 

(b)        participates in the transmission of electricity for that purpose;

 

(bb)      distributes electricity for that purpose;

 

(c)        supplies electricity to any premises …

 

shall be guilty of an offence unless he is authorised to do so by a licence …

 

5.— Exemptions from prohibition.

 

(1)        The Secretary of State may by order grant exemption from paragraph (a), (b), (bb), (c), (d) or (e) of section 4(1) …

 

6.— Licences authorising supply, etc.

 

(1)        The Authority may grant any of the following licences–

 

(a)        a licence authorising a person to generate electricity for the purpose of giving a supply to any premises or enabling a supply to be so given (“a generation licence”) …

 

36.— Consent required for construction etc. of generating stations.

 

(1)        Subject to subsections (1A) to  (2) and (4) below, a generating station shall not be constructed at a relevant place (within the meaning of section 4), and a generating station at such a place shall not be extended or operated except in accordance with a consent granted by the Secretary of State ...

 

SCHEDULE 9

 

PRESERVATION OF AMENITY AND FISHERIES.

 

Preservation of amenity and fisheries: Scotland

 

3.—
(1)        In formulating any relevant proposals, a licence holder or a person authorised by an exemption to generate, distribute, supply or participate in the transmission of electricity —

 

(a)        shall have regard to the desirability of preserving natural beauty, of conserving flora, fauna and geological or physiographical features of special interest and of protecting sites, buildings and objects of architectural, historic or archaeological interest; and

 

(b)        shall do what he reasonably can to mitigate any effect which the proposals would have on the natural beauty of the countryside or on any such flora, fauna, features, sites, building or objects.

 

(2)        In considering any relevant proposals for which his consent is required under section 36 or 37 of this Act, the Secretary of State shall have regard to—

 

(a)        the desirability of the matters mentioned in paragraph (a) of sub-paragraph (1) above; and

 

(b)        the extent to which the person by whom the proposals were formulated has complied with his duty under paragraph (b) of that sub-paragraph.

 

(3)        Without prejudice to sub-paragraphs (1) and (2) above, in exercising any relevant functions each of the following, namely, a licence holder, a person authorised by an exemption to generate or supply electricity and the Secretary of State shall avoid, so far as possible, causing injury to fisheries or to the stock of fish in any waters ...

 

Directive 2009/147/EC (“the Wild Birds Directive”)

 

Article I

 

1.         This Directive relates 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.  It covers the protection, management and control of these species and lays down rules for their exploitation.

 

2.         It shall apply to birds, their eggs, nests and habitats.

 

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.         In the light of the requirements referred to in Article 2, Member States shall take the requisite measures to preserve, maintain or re-establish a sufficient diversity and area of habitats for all the species of birds referred to in Article 1.

 

2.         The preservation, maintenance and re-establishment of biotopes and habitats shall include primarily the following measures:

 

(a)        creation of protected areas;

 

(b)        upkeep and management in accordance with the ecological needs of , habitats inside and outside the protected zones;

 

(c)        re-establishment of destroyed biotopes;

 

(d)        creation of biotopes.

 

Article 4

 

1.         The species mentioned in Annex I shall be the subject of special conservation measures concerning their habitat in order to ensure their survival and reproduction in their area of distribution.

 

In this connection, account shall be taken of:

 

(a)        species in danger of extinction;

(b)        species vulnerable to specific changes in their habitat;

(c)        species considered rare because of small populations or restricted local distribution;

(d)        other species requiring particular attention for reasons of the specific nature of their habitat.

 

Trends and variations in population levels shall be taken into account as a background for evaluations.

 

Member States shall classify in particular the most suitable territories in number and size as special protection areas for the conservation of these species in the geographical sea and land area where this Directive applies.

 

2.         Member States shall take similar measures for regularly occurring migratory species not listed in Annex I, bearing in mind their need for protection in the geographical sea and land area where this Directive applies, as regards their breeding, moulting and wintering areas and staging posts along their migration routes.  To this end, Member States shall pay particular attention to the protection of wetlands and particularly to wetlands of international importance.

 

3.         Member States shall send the Commission all relevant information so that it may take appropriate initiatives with a view to the coordination necessary to ensure that the areas provided for in paragraphs 1 and 2 form a coherent whole which meets the protection requirements of these species in the geographical sea and land area where this Directive applies.

 

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.

 

The decision letter: the Scottish Ministers’ considerations

[11]      The Scottish Ministers’ decision letter of 4 April 2012 demonstrates that the Ministers have given consideration to the environmental information provided; their obligations under EU environmental legislation; the potential for impact on the environment, in particular on species of wild birds; the landscape and visual impact of the development; the economic and renewable energy benefits; and the public representations and objections to the application.

[12]      For reasons of aviation safety, the Ministers declined to grant consent for 24 turbines in the Delting area.  They considered that they could make a determination on the remaining 103 turbines on the basis of the environmental information.  They accepted the evidence that the 103 turbine development would provide power for at least 175,112 homes and that the total annual CO2 saving from the wind farm would be around 0.93 million tonnes per annum.  The material factors that they took into account include concern about the overall condition of the environment upon which wild bird species rely in Shetland.  The view is expressed that whilst the peatland ecosystem is in decline, the wind farm’s Habitat Management Plan (HMP) would restore peatland and offer benefits to a whole range of species and habitats.  In particular, the HMP would include habitat restoration and protection for red-throated diver, merlin, whimbrel (and by association arctic skua) and peatland management actions to restore, enhance and protect blanket bog and thereby benefit birds and other species.  In particular, they considered the specific impact of the proposed development on whimbrel.  We shall return to that later in this Opinion.

 

The competency issue
How the issue arose
[13]      During the hearing the competency issue was raised by the Lord Ordinary.  Thereafter Sustainable Shetland amended the petition to seek reduction of the decision on the ground that it was incompetent.

 

The Lord Ordinary’s reasoning on the competency issue
[14]      The Lord Ordinary considered that the intention of the Electricity Act was that the grant of a licence should predate an application for section 36 consent.  A licence was fundamental to the regulation of the electricity industry.  Amenity obligations were imposed at the earliest stage when any relevant proposals as defined in Schedule 9 were being formulated.  That was necessarily before the grant of section 36 consent.  On the view that “generation” was comprehended by “operation”, she understood it to be agreed that the development could not be “operated” without a generation licence.  She therefore concluded that if section 36 permitted consent to be granted to a developer who had not applied for a licence or been given an exemption, the grant of consent would amount to a permission to commit a criminal offence under and in terms of section 36(6) of the Act.  She therefore reduced the decision.

[15]      The Lord Ordinary considered that the Wild Birds Directive was part of the essential legal framework in which the Ministers required to determine the case (Opinion, para [239]).  She took article 2 of the Directive to mean that there was an obligation to take requisite measures to maintain or to adapt the population of whimbrel to an appropriate level,  In her opinion, the Scottish Ministers should have observed the requirements of article 2 in respect of the whimbrel (Opinion, para [287]).  She was accordingly critical of what she described as the Scottish Ministers’ complete failure in the Decision Letter explicitly to address the legal issues arising out of the Directive or to explain their approach to the making of the decision.  In her view, the Ministers had failed to make it plain in what way the Directive was or was not applied and demonstrate that it was properly applied (para [291]).  They had not applied the Directive in any meaningful way that she could understand in reaching a conclusion on the facts (para [288]).  Specifically, the Ministers had failed to consider whether the Fetlar SPA had fulfilled the duty under article 4(2) in respect of whimbrel and, if not, what the implications of that were for their decision (para 272).  They had failed to explain why the Fetlar SPA provided sufficient protection and exhausted their obligation under article 4(2) (para [272]).  Moreover, the Ministers’ reasons were inadequate.  No reasons are given for disagreeing with the SNH view.  It was impossible to determine from the words used what was meant (para [284]).  There was no explanation as to why the respondents had concluded that the HMP would provide some unspecified level of mitigation (para [285]).  To the extent that the Ministers had addressed the matter it was in the context of applying an impermissible balancing exercise.  The Ministers had concluded that the level of impact on the conservation status of whimbrel was outweighed by the benefits of the project, including the substantial renewable energy generation the development would bring and its effects on climate change and on the meeting of EU climate change targets.

[16]      The Lord Ordinary concluded that she was not satisfied that the Ministers had complied with their obligations.  Accordingly, had she not sustained the plea to the competency, the Lord Ordinary would have sustained plea-in-law 5 to the extent of finding that the Scottish Ministers had failed to take proper account of their obligations in relation to the whimbrel under the Wild Birds Directive, but had acted unlawfully in respect of it, and would have reduced the decision and consent on that ground.

 

Subsequent developments
[17]      After the reclaiming motion was lodged, counsel for Sustainable Shetland notified the court that he would not be insisting upon the plea to competency which the Lord Ordinary had sustained and that he would not present any argument based upon it.  Mr G J Moynihan QC has been appointed as amicus curiae at the suggestion of the procedural judge with a view to his presenting an argument on the competency issue.  Mr Moynihan advised the court that although he had lodged a written argument on the point, he no longer considered that he could support the Lord Ordinary’s decision.

[18]      On 11 February 2014 Lord Doherty delivered his judgment in Trump International Gold Club Scotland Ltd v The Scottish Ministers (2014 SLT 406).  In that case the petitioners had argued that it was incompetent for the Scottish Ministers to grant consent in terms of section 36 of the 1989 Act to a person who did not hold a licence granted in terms of section 6 or an exemption granted in terms of section 5.  Lord Doherty rejected that argument.

 

The issues in this case
The competency point

[19]      In our opinion, counsel for Sustainable Shetland and the amicus curiae were right in their decision not to support the decision of the Lord Ordinary on this point.  It is clear, in our view, that the licensing of a party to generate electricity for the purpose set out in sections 4 and 6 of the Electricity Act and the granting of consent for the construction or expansion of a generating station under section 36 are two separate regimes.  The holding of a licence is not a condition precedent to the granting of consent of section 36; but if the holder of a consent under section 36 does not obtain a licence under section 6, the consent is simply of no practical use.  This point has been dealt with by Lord Doherty in Trump International Gold Club Scotland Ltd v The Scottish Ministers in which his Lordship has convincingly rejected a plea to the competency of a section 36 application in similar circumstances.  We agree entirely with his reasoning (ibid, paras [31]-[45]).

 

The whimbrel issue
The whimbrel
[20]      The Lord Ordinary also considered the question of the possible impact of the proposed development and its associated HMP on Shetland’s 290 breeding pairs of whimbrel.  The issue before her was whether the Scottish Ministers had had proper regard to the question in light of their obligations under the Wild Birds Directive.

[21]      Included in the SNH letter of 24 July 2009 is the information that the whimbrel is a scarce upland-nesting wading bird.  Whilst the global population of whimbrel is extremely large (estimated at between 1 and 2.3 million), the number breeding in the United Kingdom is small (perhaps a little in excess of 300 pairs).  Nearly all (approximately 95%) of the United Kingdom population nests in Shetland, where numbers are in decline.  As SNH drew to the Scottish Ministers’ attention in its letter of 30 November 2010, the whimbrel is listed in part B of annex II to the Wild Birds Directive.

[22]      Article 4(1) of the Wild Birds Directive provides that member states shall classify special protection areas for conservation of the species listed in annex I.  Article 4(2) provides that member states shall take “similar measures” for regularly occurring migratory species not listed in annex I.  The Scottish Ministers have specified a special protection area (SPA) on the island of Fetlar.  The proposed development site is not in a SPA.  Of the Shetland population of whimbrel about 168 pairs or 58% breed on the mainland and 31 pairs or 11% breed on the Fetlar SPA.  About 23 of the 168 mainland pairs are to be found on the development site.

 

Conclusions
[23]      Because it may have been lost sight of, we remind ourselves of the nature of judicial review in a case of this sort.  What is under consideration is the legality of a decision made in exercise of specific statutory powers.  In exercise of his specific powers, the decision-maker must comply with the general requirements of the law.  He must have regard to relevant considerations and only to relevant considerations.  Where, as here, the decision-maker is obliged, or chooses, to consider representations, assuming them to be relevant, he must consider them fairly and rationally; but it is for him to accord to them such weight as he considers appropriate.  It is for him to decide whether or not he should accede to them (City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33, at p 44).  The decision-maker may reject them entirely or give them little weight, subject to his giving reasons which, taken as a whole, sufficiently explain the decision arrived at and deal with the substantial questions in issue in an intelligible way (Wordie Property Co Limited v Secretary of State for Scotland 1984 SLT 345, at p 348).

[24]      Since the construction and operation of the wind farm is likely to have an impact on Shetland’s populations of wild birds, it is accepted by all parties that that impact is a factor that is relevant to the decision to grant or refuse consent.  Paragraph 3(2)(a) of Schedule 9 to the Electricity Act and the Wild Birds Directive put that beyond question.  The Scottish Ministers therefore had to have regard to the information put before them on the likely impact of a grant of consent on wild bird populations and, in particular, on the concentration of the small United Kingdom population of whimbrel on Shetland.  That information was primarily to be found in the representations by the RSPB and SNH and in the environmental statement and its addendum, including the HMP.  It was for the Ministers to study that information and to determine what to make of it.

[25]      We repeat these basic propositions, because, uncontroversial as we would see them to be, they were not reflected in the submissions advanced on behalf of Sustainable Shetland nor, in our view, in the conclusion reached by the Lord Ordinary.  It appears to us that the case made by Sustainable Shetland in support of the contention that there should have been a public inquiry diverted the Lord Ordinary from the real question in the case.

[26]      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.

[27]      It may be that the Wild Birds Directive presents certain difficulties in its interpretation and application, but in this case the grant of a section 36 consent can be rendered unlawful only if the Ministers fail to comply with such obligations as are imposed by the Directive, and only if the decision is likely to have a materially adverse effect on one or other of the wild bird populations that the Directive is intended to protect.  The latter question was an entirely factual question for the Scottish Ministers to determine.  The Ministers concluded that increased mortality was unlikely but, that in any event, they were not satisfied that the estimated increase in mortality, if there were to be no mitigation by virtue of the HMP, was of significance in relation to the conservation status of the species.  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.

[28]      There was ample evidence to justify the Ministers’ conclusion.  The information available to them included the addendum to the environmental statement.  Chapter A11 (Ornithology) dealt with questions relating to a number of species of wild birds at some length.  Section A11.17 was specific to the whimbrel.  It contained the assessment that the magnitude of the residual effects on whimbrel due to wind farm land-take, construction and operation, including collision, was most likely to be negligible but, because of the large scale of the intended HMP measures, “the net effect could be to reverse the existing decline and facilitate population recovery benefits accruing to the Shetland population (and by implication the national population also)” (para A11.17.10).  The Ministers were entitled to prefer that assessment over the less optimistic view put forward by SNH.

[29]      It is true that the Ministers did not specifically mention the Wild Birds Directive in the Decision Letter but there was no requirement that they should do so.  For a decision to be lawful, it is sufficient that the decision-maker in substance complies with his duties.  He need not spell out that he is doing so, nor explain why.  However, in the present case, to the interested and informed reader of the letter of 4 April 2012 it would have been clear that the Ministers’ decision had been arrived at having regard to the assessment of the impact on the whimbrel population that had been put forward by SNH under reference to the specified provisions of the Wild Birds Directive.  SNH’s objection based partly on the impact on whimbrels is specifically mentioned (Decision Letter, p 2).  The Ministers also say that they “have taken into consideration “the environmental information provided and their obligations under EU environmental legislation, and have had careful regard to the potential for impact on the environment, in particular on species of wild birds” (p 9).  Under the heading “The Scottish Ministers’ Determination” there is a further reference to the Ministers’ having taken into account “the environmental information submitted with the application, including the environmental statement, addendum and the representations made by statutory consultative bodies and others” (p 14).  There may be circumstances where general references of this sort can be seen as being consistent with only lip service being paid to the relevant provisions.  We do not see that as being the case here.  The Ministers devoted eight paragraphs to the whimbrel, its current state of decline, the projected mortality rate consequent on the development, and SNH’s concerns notwithstanding the potentially beneficial effect of the HMP.

[30]      In our view, the Lord Ordinary’s criticism regarding the alleged lack of reasoning by the Ministers in relation to their duties under article 4(2) of the Directive is misplaced.  It reflects the erroneous view that the Ministers required to identify the extent of their duties under the Directive and satisfy themselves as to their performance of these duties as a preamble to or part of their consideration of the application.  Where fact-finding was a matter for the Scottish Ministers and the likely impact on whimbrels was a factual issue, nothing further was required of the Ministers by way of explanation and reasoning than appears in the Decision Letter (at pp 10-12).

[31]      Once the Ministers found in fact that the development would have no significant adverse impact, and might possibly be beneficial, the issue of what is required by article 2 in respect of the whimbrel (Opinion, para 28) was one that it was unnecessary to explore.

 

Disposal
[32]      We will accordingly allow the reclaiming motion at the instance of the Scottish Ministers, recall the interlocutor of the Lord Ordinary, refuse the cross-appeal at the instance of Sustainable Shetland, and dismiss the petition.