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RECLAIMING MOTIONS IN THE PETITIONS BY THE ROYAL SOCIETY FOR THE PROTECTION OF BIRDS AGAINST THE SCOTTISH MINISTERS AND (FIRST) INCH CAPE OFFSHORE LTD; (SECOND) NEART NA GAOITHE OFFSHORE WIND LTD; AND (THIRD) SEAGREEN WIND ENERGY LTD FOR JUDICIAL REVIEW


Submitted: 16 May 2017

Web Blue CoS

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

[2017] CSIH 31

P28/15

Lord President

Lord Menzies

Lord Brodie

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD PRESIDENT

in the Reclaiming Motions

in the Petitions by

THE ROYAL SOCIETY FOR THE PROTECTION OF BIRDS

Petitioners and Respondents

against

THE SCOTTISH MINISTERS

Respondents and Reclaimers

and

(FIRST) INCH CAPE OFFSHORE LTD; (SECOND) NEART NA GAOITHE OFFSHORE WIND LTD; and (THIRD) SEAGREEN WIND ENERGY LTD

Interested Parties and Reclaimers

for

Judicial Review

Petitioners and Respondents: Findlay, van der Westhuizen; Campbell & McCartney, Glasgow

Respondents and Reclaimers: Mure QC, Charteris; Scottish Government Legal Directorate

Interested Parties and Reclaimers: (First) Thomson QC; CMS Cameron McKenna Nabarro Olswang LLP

(Second) Armstrong QC; Shepherd & Wedderburn LLP

(Third) Wilson QC, McKay QC; Gillespie Macandrew LLP

16 May 2017

Introduction
[1]        On 10 October 2014 the interested parties obtained sundry consents from the respondents to enable them to create and operate electricity generating stations, in the form of substantial wind farms some miles distant into the North Sea, in locations ranging from Anstruther in the south to Montrose in the north.  A map, showing the location of the four wind farms is shown below.  It also depicts certain Special Protection Areas (SPAs) for seabirds, namely Fowlsheugh, near Stonehaven, and the Forth Islands.  They are part of the Natura 2000 ecological network (infra) and hence Special Conservation Areas (SCAs) for marine mammals and fish.

[2]        The original plans were for wind farms consisting of 213 (Inch Cape), 125 (later 90) (NNG) and two sets of 75 (Seagreen Alpha and Bravo) turbines.  The petitioners objected to the wind farms, broadly on the basis of potential adverse impacts on certain species of migratory seabird living in the SPAs.  In the course of the consent process, the plans were substantially modified to, respectively, 110 (Inch Cape), 75 (NNG) and two sets of 75 turbines (Seagreen).  The modification was thus from 488 to 335.

[3]        The litigation concerns, first, whether, in granting the consents, the respondents acted in a procedurally incorrect manner and, in particular, whether they took into account material upon which they ought to have allowed the petitioners to comment.  Secondly, it concerns whether the consents involved findings of scientific fact or methodology containing errors which are susceptible to judicial review.  The scope of the court’s powers of review are placed into sharp focus.  Thirdly, the petition questions whether the respondents ought to have treated certain draft SPAs as if they had been approved.  Finally, there is a challenge based upon the adequacy of the respondents’ reasoning.

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[4]        This opinion is, like the petition, the Lord Ordinary’s opinion and the submissions, unavoidably peppered with acronyms which, although explained in the opinion, are best set out in limine for ease of reference:

AA

appropriate assessment

ABC

Acceptable Biological Change

ruABC

reduced uncertainty method of ABC

BTO

British Trust for Ornithology

CEH

Centre for Ecology and Hydrology

CPS

Counterfactual Population Size

CRMs

Collision Risk Models

EIA

Environmental Impact Assessment

ES

Environmental Statement

HRA

Habitats Regulation Appraisal

JNCC

Joint Nature Conservation Committee

MS

Marine Scotland

MS-LOT

Marine Scotland Licensing Operations Team

MSS

Marine Science Scotland

MSS AB

MSS Advisory Board

NNG

The second interested parties

PVA

Population Viability Analyses

SAB

Science Advisory Board

SCAs

Special Conservation Areas

SEIS

Supplementary Environmental Impact Statement

SEPA

Scottish Environment Protection Agency

SNH

Scottish National Heritage

SNCBs

Statutory Nature Conservation Bodies

SPAs

Special Protection Areas

dSPA

draft SPA

pSPA

proposed SPA

On occasions, to aid understanding, the acronym is not used alone and the full description is repeated.

 

Legislation
[5]        There are a variety of Directives and Regulations involved in the case which, in tabular form, are broadly as follows:

Directive

Implementing Regulation

Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment (the original EIA Directive)

consolidated by:

Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment (the EIA Directive)

amended by:

Directive 2014/52/EU on the assessment of the effects of certain public and private projects on the environment (the new EIA Directive)

 

The Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2000 (the EIA Regulations 2000)

and

The Marine Works (Environmental Impact Assessment) Regulations 2007 (the Marine Works Regulations 2007)

Directive 79/409/EEC on the conservation of wild birds (the old Wild Birds Directive 1979)

consolidated by:

Directive 2009/147/EC on the conservation of wild birds (the Wild Birds Directive)

 

The Conservation (Natural Habitats, &c.) Regulations 1994 (the Habitats Regulations 1994)

consolidated by:

The Conservation of Habitats and Species Regulations 2010 (the Habitats Regulations 2010)

and

The Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2007 (the Offshore Marine Regulations 2007)

 

Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora (the Habitats Directive)

 

The Conservation (Natural Habitats, &c.) Regulations 1994 (the Habitats Regulations 1994)

consolidated by:

The Conservation of Habitats and Species Regulations 2010 (the Habitats Regulations 2010)

and

The Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2007 (supra)

 

Directive 2003/4/EC on public access to environmental information

 

Environmental Information (Scotland) Regulations 2004 (the EIS Regulations)

and

The Environmental Information Regulations 2004

 


The Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2000

[6]        Section 36(1) of the Electricity Act 1989 provides that the respondents’ consent is required before a generating station, of the types proposed by the interested parties, can be constructed or operated.  The Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2000 (the EIA Regulations 2000) implemented Council Directive 85/337/EEC.  The Directive is consolidated in the European Parliament and Council Directive 2011/92/EU on the assessment of the effects of certain ... projects on the environment (the EIA Directive).  This is now amended (but not for this litigation) by the European Parliament and Council Directive 2014/52/EU.  The Regulations apply (reg 1) to any application for consent. 

[7]        Regulation 3 provides that no consent can be given unless the requirements of Regulation 4 have been satisfied.  Regulation 4, in turn, provides that an applicant must submit an “environmental statement” (ES) with any application.  This must contain (Sch 4 Pt II): a description of the development, including its design and size; any measures designed to avoid or reduce significant adverse effects; and the data required to assess the main effects which the development is likely to have on the environment.  The ES must also contain certain information, such as is reasonably required, to assess the environmental effects, taking into account the terms of any “scoping opinion” given.  This information must include (Sch 4 Pt I) a description of the aspects of the environment likely to be “significantly affected”, including any effect on fauna, and the measures envisaged to prevent or reduce any significant adverse effects.  A “non-technical summary” of these matters must be made available (Sch 4 Pts I and II para 5). 

[8]        The reference to a scoping opinion (supra) is to a request (reg 7), which a prospective applicant may make of the respondents in advance of any application.  This involves the applicant providing initial information on the proposed development.  The respondents consult (reg 7(4)) with the applicant, the “consultative bodies” and “any other person … likely to be concerned … by reason of his specific environmental responsibilities”.  They then issue the scoping opinion; that is (reg 2(1)) a written statement of the respondents’ opinion “as to the information to be provided in an [ES]”.  The consultative bodies are (reg 2(1)) the planning authority for the relevant area, Scottish Natural Heritage (SNH), the Scottish Environmental Protection Agency (SEPA) and “other bodies designated … as having specific environmental responsibilities ... [who] are likely to have an interest”.

[9]        The Regulations contain elaborate procedures for the intimation and advertisement of the application.  The applicant must (reg 9) publish a notice describing the application and stating that it is accompanied by an ES.  The notice must state that the ES may be inspected at, or obtained from, a particular address and provide a date, not less than four weeks after the notice, by which representations can be made to the respondents.  It must describe the procedures to be followed under regulations 14 and 14A, which permit representations to be made in relation to “further information”, provided by the applicant following upon a request from the respondents (infra), or “additional information”.  Additional information means (reg 2(1)):

“substantive information relating to the [ES] which –

(a)        is provided by the applicant or a consultative body to the [respondents]–

(i)         after the … receipt by the [respondents] of … a [ES]; and

(ii)        before determination … of the application …; and

(b)        is not information [provided … to supplement the [ES] … and … further information submitted by the applicant pursuant to a requirement under regulation 13(1)].”

 

[10]      The regulation 14 and 14A procedures involve notices in the press to the effect that: further information has been provided; copies may be inspected at, or obtained from, a particular address; and representations may be made within a period of at least four weeks.  The respondents must intimate additional information to the planning authority and notify the applicant that such information has been received.  The applicant, on the first occasion only, must publish a notice that the additional information will be available for inspection on the planning register and representations may be made about it within a period of at least four weeks. 

[11]      The respondents are obliged (reg 11(2)) to give notice, that an ES has been received, to the consultative bodies and “any other person … likely to be concerned … by reason of … specific environmental responsibilities”.  They must ascertain whether these bodies or persons wish a copy of the ES and inform them that they may make representations or express their views.

[12]      No consent can be given (reg 4(2)) until the respondents have been satisfied that the required procedural steps have been taken.  They must also have “taken into consideration the environmental information”.  Environmental information means (reg 2(1)), first, the ES, which is defined as encompassing the ES itself, any information provided by the applicant to supplement the ES (SEIS) within 14 days of the ES, and “any further information submitted by the applicant pursuant to a requirement under regulation 13(1)”.  Regulation 13(1) refers to “such further information” as the respondents may require the applicant to provide concerning any matter which ought to have featured in the ES.  Secondly, environmental information includes additional information (supra) and

“any representations duly made by any consultative body or any other person about the likely environmental effects of the proposed development”.

 

The Marine Works (Environmental Impact Assessment) Regulations 2007

[13]      Section 20 of the Marine (Scotland) Act 2010 provides that a “licensable marine activity”, which includes depositing wind turbines in the sea, requires a licence from the respondents.  The consolidated EIA Directive (supra) includes “wind farms” in the projects described in Annex II.  The Marine Works (Environmental Impact Assessment) Regulations 2007 (the Marine Works Regulations 2007), which complement the EIA Regulations 2000, are designed to implement the EIA Directive for the marine area.

[14]      Regulation 8 provides that the respondents must determine that an environmental impact assessment (EIA) is required in respect of regulated activities likely to be carried out in the course of an Annex II project, if they are likely to have significant effects on the environment.  An application for approval requires (reg 12) to be accompanied by a description of the project and an ES.  There is provision (reg 13) for requesting a scoping opinion and (reg 14) for the respondents to request further information requested from, and provided by, the applicant.  There are provisions (regs 15 and 16) regarding: the making available of information held by the respondents to the applicant; and the publication of the application, the ES and any further information.  The respondents must (reg 17) arrange for the supply, to such of the “consultation bodies” as they consider appropriate: (i) the application; (ii) the ES; (iii) any further information supplied by the applicant; and (iv) a letter stating that representations can be made within 42 days.  These consultation bodies include (reg 2(1)) bodies which the respondents consider “likely to have an interest in the regulated activity (whether by virtue of their having specific environmental responsibilities under an enactment or otherwise)” (cf the EIA Regulations 2000 reg 2(1) (supra)).  There are detailed provisions (reg 21 and Sch 5) regarding the treatment of representations from the public. 

[15]      In reaching its EIA decision, the respondents require (reg 22) to do so on the basis of the application, the ES, any further information, representations from the public, and any consultation responses. They require to “have regard to” the relevant legislation and to “take into account”, inter alia, the direct and indirect effects of the project on fauna.  The Marine Works Regulations 2007 thus largely mirror, but not precisely (cf additional information), the EIA Regulations 2000.

 

The Conservation (Natural Habitats, &c.) Regulations 1994
[16]      The Conservation (Natural Habitats, &c.) Regulations 1994 (the Habitats Regulations 1994) provide (reg 3) that the respondents must exercise their functions under the Marine (Scotland) Act 2010 so as to secure compliance with the requirements of the Habitats Directive (Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora) and the Wild Birds Directive (European Parliament and Council Directive 2009/147/EC on the conservation of wild birds, formerly the Wild Birds Directive 79/409/EEC).

[17]      The Wild Birds Directive provides (Art 4.1) that Members States are to take special conservation measures, including the classification of SPAs, in relation to regularly occurring migratory bird species concerning their habitat in order to secure their survival in their area of distribution.  Steps to avoid disturbances, in so far as these would be significant, are to be taken (Art 4.4).

[18]      Article 3 of the Habitats Directive provides for the creation of a coherent European ecological network of special areas of conservation (SACs), under the title Natura 2000, composed of sites containing, inter alia, particular habitats or species.  The network is to include SPAs.  Article 4 requires Member States to propose a list of sites.  The domestic aspects of this were initially transposed into the Habitats Regulations 1994 (reg 7), whereby the respondents were to propose a list of sites for transmission to the Commission.  Regulation 9A required the respondents to classify as SPAs such sites as they considered necessary to ensure that the migratory species naturally occurring on the SPAs were conserved.  The procedure for doing so required (reg 9B) a notice of the proposal and an accompanying statement to the appropriate nature conservation body.  Representations could be made before the conservation body reported to the respondents. 

[19]      Article 6 of the Habitats Directive contains a requirement on Member States to establish conservation measures for the sites.  States must take appropriate steps to avoid deterioration of the habitats and the relevant species. Notably, in brief for present purposes, Article 6.3 provides that plans or projects, which are likely to have a significant effect on a particular site, whether individually or in combination with other plans or projects, must be made subject to an “appropriate assessment” (AA).  The relevant authority can only agree to a plan or project if it has ascertained that it will not adversely affect the integrity of the site.  The precise terms of Article 6.3 of the Directive need not be rehearsed in full because they were transposed into regulation 48 the Habitats Regulations 1994 (and regulation 61 of the Habitats Regulations 2010 (infra)).

[20]      There is an exception in the Directive (Art 6.4), which was transposed into the Regulations (reg 49 of the 1994 Regulations and reg 62 of the 2010 Regulations), permitting plans or projects, for imperative reasons of public interest, notwithstanding a negative AA.  This does not arise in this case.  The Regulations provide a procedure whereby, if a site became a European site, any prior consent to a plan or project can be reviewed, modified or revoked (reg 50 of the 1994 Regulations and reg 63 of the 2010 Regulations).  An AA would be required for this purpose

 

The Conservation of Habitats and Species Regulations 2010
            The Conservation of Habitats and Species Regulations 2010 (the Habitats Regulations 2010) consolidated and revoked the Habitats Regulations 1994.  They remain designed to transpose the Habitats Directive, but extend only to England and Wales except on certain “reserved” matters, such as the extension of the applicability of the Regulations to the territorial sea (reg 3(8)) and, it appears, the assessment of implications for the SPAs.  Regulation 61 is in very similar terms (but substituting “must” for “shall”) to Regulation 48 of the 1994 Regulations as follows:

“Assessment of implications for European sites and European offshore marine sites

(1)        A competent authority, before deciding to undertake, or give any consent, permission or other authorisation for, a plan or project which –

(a)        is likely to have a significant effect on a … site … (either alone or in combination with other plans or projects), and

(b)        is not directly connected with or necessary to the management of that site,

must make an appropriate assessment of the implications for that site in view of that site’s conservation objectives.

(2)        A person applying for any such consent, permission or other authorisation must provide such information as the [respondents] may reasonably require for the purposes of the assessment …

(3)        The [respondents] must for the purposes of the assessment consult the appropriate nature conservation body and have regard to any representations made by that body within such reasonable time as [the respondents] specify.

(4)        They must also, if they consider it appropriate, take the opinion of the general public, and if they do so, they must take such steps for that purpose as they consider appropriate.

(5)        In light of the conclusions of the assessment… the [respondents] may agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the … site ...

(8)        Where a plan or project requires an appropriate assessment both under this regulation and under the [Offshore Marine Regulations 2007], the assessment required by this regulation need not identify those effects of the plan or project that are specifically attributable to that part of it that is to be carried out in [the United Kingdom], provided that an assessment ... assesses the effects of the plan or project as a whole.”

 

An assessment of this nature is known as a Habitats Regulation Appraisal (HRA).  It is distinct from an Environmental Impact Assessment (EIA) under the EIA Regulations 2000.

 

The Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2007
[21]      The Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2007 (the Offshore Marine Regulations 2007) are designed to transpose the Habitats and Wild Birds Directives relative to sites beyond territorial waters (see reg 2(1), eg Seagreen Alpha and Bravo).  Regulation 25(1) provides that, in respect of SPAs, before deciding to give any consent for a plan or project, the respondent must make an AA in view of that site's conservation objectives.  Very similar provisions exist in relation to the procedure to be followed as in the Habitats Regulations 1994 and 2010.  There is a specific requirement (reg 25(3)) to consult the Joint Nature Conservation Committee (JNCC), SNH and, if appropriate, to take the opinion of the general public.  The competent authority may agree to the plan or project only if it has ascertained that it will not adversely affect the integrity of the site (reg 25(4)).

 

The Environmental Information (Scotland) Regulations 2004
[22]      The Environmental Information (Scotland) Regulations and the Environmental Information Regulations, both 2004, transpose the European Parliament and Council Directive 2003/4/EC on public access to environmental information. Regulation 5 provides for environmental information to be made available on request.

 

The Applications
[23]      Prior to making their applications, the interested parties requested scoping opinions in terms of Regulation 7 of the EIA Regulations 2000.  The opinions were issued in February 2010 (NNG) and January 2011 (Seagreen Alpha and Bravo and Inch Cape).  The opinions were lengthy, detailed documents covering a wide range of subjects.  There was specific mention of seabirds and the SPAs.  The Inch Cape opinion, for example, drew attention to the importance of ensuring that the methodology and results of survey work were in a form which would facilitate an AA.  Reference was made to the Wild Birds Directive and to the need to carry out a Habitats Regulation Appraisal (HRA) under regulation 48 of the 1994 Regulations, including an AA, where appropriate.  The ES was to take account of possible future SPAs.  The petitioners were mentioned as having a position.  There was a section dedicated to seabirds, which included reference to collision and disturbance effects surveys, data management, predictive modelling and distribution mapping (see infra). 

[24]      The petitioners’ comments had been sought at the stage of framing the scoping opinions.  They were paraphrased as being that “the scope of species, surveys, and survey and assessment methodologies are, at this stage, probably as close to comprehensive as they can be and that work can be focused and refined as data are collected”.  The opinion continued:

“The [ES] should capture data which will inform [AA]s of impacts on the integrity of a number of seabird SPAs.  Information will be required which will allow the seabird use of the wind farm site to be assessed in the context of the overall distribution and foraging behaviour of species from the scoped SPAs ...”.

 

It was noted that the petitioners believed that a more sophisticated analysis might be required in certain respects.

[25]      The first application was made by NNG on 13 July 2012.  Similar applications were made for Seagreen on 26 October 2012 and Inch Cape on 1 July 2013.  Curiously, given the mass of documentation lodged in process, the applications themselves do not feature in the Appendix to the Reclaiming Print.  However, all were accompanied by ESs.  The ESs are extremely detailed on each aspect highlighted in the scoping opinions.  For example, that for NNG, which deals also with the combined effects of all four wind farms, extends to some 128 pages for the “Nature Conservation” chapter (11) alone (the Inch Cape version exceeds 400 pages).  The ESs go into the issue of seabirds in quite extraordinary detail, notably the anticipated effect of the wind farms on individual species in each SPA.  Perhaps not entirely surprisingly, given their provenance, the ESs conclude, albeit in closely reasoned form, that there will be no significant impact on the sites, despite some disturbance and displacement.  There would, of course, be little point in making an application with a negative ES, at least where no overriding public interest was invoked.  The amount of data retrieved in the assessment exercise was very considerable.  Of course, as it was produced by or for the developer, its accuracy remained to be tested.  What is clear is that this detailed material was, in terms of the EIA Regulations 2000 and the Marine Works Regulations 2007, all placed in the public domain and consulted upon. 

[26]      Objections to the applications were made by the petitioners on 8 October and 13 December 2012 and 5 September 2013.  The first of these (NNG), for example, was in the following relatively broad terms:

“The petitioners welcome the approach taken by the applicant, including the extensive survey effort and appropriate application of assessment methodologies as demonstrated in the relevant ornithological sections ...  In part, we also consider the assessment on impacts to ornithological interests to be adequate and appropriate.  However, we have identified specific fundamental issues that need to be addressed:

1.         The reporting includes fundamental inaccuracies and discrepancies in the presented data, which leads to incorrect interpretation and assessment of potential effects.

2.         Inappropriate application of the Rochdale Envelope approach which makes appraisal of the assessment difficult.

3.         The cumulative impact assessment is founded upon limited understanding and knowledge.  This is due to a significant lack of available information on population scale effects of offshore wind development on bird species in the Forth & Tay and lack of design detail of the Inch Cape and Firth of Forth Round 3 offshore wind farm proposals.

In light of these issues, the petitioners object to the proposals as currently presented ...”.

 

In an annex, the petitioners expanded upon their objection and requested further information that would enable a “robust cumulative impact assessment”, encompassing two of the other wind farm proposals, including Inch Cape, which were under consideration.  There were comments on “species sensitivity scores”, as a suitable way of assessing impact, and reference to a number of academic papers on the subject.  Cumulative Impact was discussed and concerns were expressed on the adequacy of the data produced in the ES.  A cumulative assessment was needed.  Detailed comments followed in relation to different species, with several alleged errors and discrepancies being identified.  The objections to the other wind farms proceeded along similar lines.

[27]      The interaction between the petitioners and the respondents did not cease upon receipt of the objections.  Rather, it continued up to and beyond the date of the initial advice from the consulted conservation bodies on 7 March 2014 (infra).  For example, in August 2013, the proposed methodology to be used in assessing impact (Acceptable Biological Change, or ABC) had been intimated to the petitioners by Marine Scotland (MS), who are a directorate of the respondents.  Shortly thereafter, Marine Science Scotland (MSS), a technical department of the respondents, advised the petitioners that they were not fully committed to this approach and might select an alternative.  The petitioners were told of the proposal by the conservation bodies to use reduced uncertainty ABC (ruABC) in February 2014.  Further data was provided by MS to the petitioners and a deadline for a “final” response from the petitioners was set for 24 March 2014.

[28]      On 7 March 2014 the respondents received the advice of SNH and the JNCC, being the statutory nature conservation bodies (SNCBs), on the cumulative impact of the wind farms which, at that point, still involved the construction of 488 turbines.  SNH were the relevant body in respect of the NNG and Inch Cape territorial water proposals and the JNCC was the equivalent for the Seagreen development.  The advice noted the key conservation objective of the SPAs as being, inter alia:

“... to ensure the long-term maintenance of the population [of the bird species] as a viable component of each SPA under consideration.  This is because it encompasses all impacts to the species, including significant disturbance to qualifying bird interests when they’re outwith [a] SPA.”

 

[29]      The “Key Advice” was as follows:

“Cumulative impacts on SPA seabird species

 We have assessed potential wind farm impacts under Habitats Regulations Appraisal (HRA) and Environmental Impact Assessment (EIA).  We advise that adverse impacts on SPA seabird species are likely to be the most significant natural heritage constraint on development of the Forth & Tay offshore wind farm proposals.  The most significant effects are these:

Collision and displacement with respect of kittiwake as a qualifying interest of Forth Islands SPA and Fowlsheugh SPA.

Collision with respect to gannet as a qualifying interest of Forth Islands SPA.

Displacement with respect to puffin as a qualifying interest of Forth Islands SPA.

Therefore we cannot conclude with reasonable certainty that there would be no adverse impact arising from the Forth & Tay wind farms on the site integrity of Forth Islands or Fowlsheugh SPAs.

The thresholds presented in our advice are indicative due to the considerable uncertainty in the population modelling for each SPA seabird population.  These models incorporate year round natural mortality but only address one form of anthropogenic mortality (wind farm impacts) and only during the breeding season.  This means that if the populations encounter any additional anthropogenic mortality, then thresholds will be exceeded.  Consequently, we recommend that limits to additional impacts are not set close to thresholds, especially for declining species such as kittiwakes.

We also note that we are only able to provide a qualitative assessment of potential impacts to individuals breeding outwith SPAs and for seabird impact assessment in the non-breeding season – aspects which are not captured under HRA.  We highlight the potential for significant cumulative impacts at a UK level and note that this is a key limitation to our current advice on the Forth & Tay wind farms, especially for kittiwake, gannet and puffin where high levels of impact are already predicted for SPA populations during the breeding season.  In respect of kittiwake, we highlight that there could be high levels of collision risk during the non-breeding season.”

 

Detailed appendices followed on impacts, collision risk modelling thresholds and related matters. 

[30]      It was explained that the assessment involved the setting of thresholds, beyond which a significant impact might be anticipated.  This was done generally by applying the “reduced uncertainty method of ‘acceptable biological change’ (ruABC) to the outputs from the population viability analyses (PVAs), which had been developed for each seabird population by the Centre for Ecology and Hydrology” (CEH).  The gannet and puffin thresholds were derived by a different means.

[31]      The advice continued somewhat repetitively:

“We note the following caveats on use of these thresholds:

These thresholds are only indicative as there is considerable uncertainty in the modelling steps.

The population models for each species incorporate year round natural mortality but only address one form of anthropogenic mortality (wind farm impacts) and only during the breeding season.

These thresholds have been set without considering the status of the population; whether it is increasing or declining ...  Consequently, thresholds for declining species, such as kittiwakes, should be treated with caution.

Consequently, allowing impacts on seabirds that are predicted to be very close to thresholds is a high risk approach and we strongly recommend that limits to additional impacts are not set close to thresholds, especially for declining species.”

 

As with the ESs, the advice encompassed extraordinary detailed ornithological analyses of the bird populations of each relevant species (and others) in each SPA and the anticipated disturbance or displacement.

[32]      The draft report was issued by CEH on 10 March 2014; the petitioners having been involved in this work.  A copy of the SNCBs’ advice was intimated to the petitioners on 14 March and further data was provided, including the final CEH report on the population modelling.  The petitioners submitted their “final” objections on 26 March.  Nevertheless, more data was sent to them by MS after that date; notably that on calculating thresholds.

[33]      On 10 April 2014, MSS Ornithology provided interim advice to the MS Licensing Operations Team (MS-LOT), who were ultimately responsible for the recommendations to the respondents, following upon the SNCBs’ earlier response.  This criticised certain aspects of the SNCBs’ methodology relative to, for example, the setting of thresholds.  It did endorse the simple interpolation method used by the SNCB as sensible, notwithstanding that it made a number of assumptions.  It advised a wider use of this method (ie scalar, infra) to adjust thresholds to eliminate certain anomalies.  It endorsed the use of ruABC because it allowed greater precaution where the data was limited.  It disagreed with its use where, as in the Forth Islands, the data was good.  It advised the use of up to date PVA outputs, which had been provided on 25 March.  A resultant calculation produced a different threshold for the Forth Island gannets. 

[34]      MSS Ornithology advised the use of the extended “Band” model (Option 3) (infra) to estimate collision rates.  A rate assuming 98% avoidance was recommended but, due to the uncertainties, estimates assuming a 95% rate were also to be taken into consideration.  MSS agreed with the SNCBs that an adverse impact, as described by the SNCBs, could not be ruled out.  Further work was therefore advised on both the SNCBs’ calculations and on mitigatory measures, notably the number of turbines.  The use of scalar as an appropriate tool was re-enforced in an e-mail from MSS to the SNCBs dated 23 April.  The MSS Ornithology advice was intimated to the petitioners on 28 April.

[35]      On 17 April 2014, MS-LOT sought revised advice based upon a reduced total number of 335 turbines.  The petitioners were given a copy of this request.  In May, the author of the Band method (ie Mr Band) recommended the use of his extended (Option 3) method to calculate collision avoidance rates. 

[36]      On 14 May 2014, a draft AA was prepared.  The SNCBs responded to MS-LOT in relation to impact on 6 June, commenting that, in addition to the reduction in turbine numbers, there had been a number of changes in the technical assessments and modelling.  The revised advice from the SNCBs remained the same.  On 10 June the SNCBs provided revised advice on displacement rates for kittiwake, given the changes to the turbines.  This was that there was some logic in applying a lower rate.  Continued monitoring was recommended.  On 7 June yet further advice was provided on the displacement effects on kittiwake of the Seagreen wind farms, which were regarded as a special case.  The same did not apply to Inch Cape, where the advice remained the same. 

[37]      On 27 June 2014 an “Escalation Meeting” took place between, MSS, MS-LOT and the SNCBs with a view to bringing together the technical experts and senior management to explore “the basis of divergence and to consider what scope there [was] to minimise the degree of divergence”.  The existence of many areas of agreement was acknowledged.  There were three areas of potential divergence.  The first was the collision effects for gannet and kittiwake and whether the Option 3, as MSS had advised, or Option 2, which had been used by the SNCBs, ought to be employed.  It was agreed, following Mr Band’s advice, that Option 3 was “correct”, but there were remaining issues about flight height data.  Some disagreement therefore remained.  It was hoped that research from the British Trust for Ornithology (BTO) would help.

[38]      On 4 July 2014, Mr Band prepared a note on avoidance rate reports on “small gulls”, where the rate was much lower using Option 3.  He wrote as follows:

“Clearly with this level of disparity [between small gulls data based on site survey observations and small gulls data using generic flight height distribution, tabulated in the note], the observed flight height distribution at these [survey] sites must be very different from the generic FHD [flight height distribution] ... 

What this means – if the observed values of [proportion of flights at collision risk height] represent valid survey records on flight height – is that the actual flight height distribution, far from being skewed towards heights below minimum rotor height, must actually peak within the range of rotor heights ...  

This is so different from an assumption of FHD skewed towards low altitude that any analysis based on the latter must be deemed invalid.”

 

[39]      The second area of possible divergence was on the displacement effects for kittiwakes and puffins.  It was agreed that the modification in turbine numbers had reduced the displacement rates.  The SNCBs agreed with the kittiwake rate contained in the draft AA, although MSS had advised a lower rate.  The SNCBs were to consider further rates and the appropriate model for puffins. 

[40]      The third area of disagreement was on the use of ABC and ruABC in determining thresholds.  There was agreement that ruABC should be used generally but MSS did not think it should be used where data quality was good.  The wider use of scalar was also a concern.  Whether it was appropriate to allow effects to come close to thresholds was still an issue.  Although the SNCBs did reconsider matters, they did not alter the fundamentals of their advice. 

[41]      In a letter dated 11 July 2014, the SNCBs recorded that a further meeting had been held on 7 July, when it had been noted that “there was agreement between our advisers on the vast majority of the issues raised ... and in particular on protected species of seabird”.  The letter continued:

“... We noted that there were precautionary elements in the approaches taken and the models recommended by SNH and JNCC, and by [MSS].  What level of precaution is appropriate is not a matter that can be determined precisely, and judgements have to be made.  We also noted that the development proposals have evolved since they were originally submitted, partly as a response to concerns about seabird impacts.

Our advice, and MSS’s, is based on thresholds.  These thresholds are indicative, not absolute, and we advise that they should not be used as strict limits.  Rather, we have based our advice on the principle that the closer effects are to the thresholds the greater the risk of adverse effects.  SNH & JNCC concluded that, for a small number of species, levels of predicted impact were such that we are unable to conclude beyond reasonable doubt that there would be no effect on the integrity of the SPAs, based on the models we have used.  [MSS] reached a different conclusion using the same data, but a slightly different modelling approach.  We noted that this is a new and fast developing area of scientific study and that approaches are continually developing and being tested.  Many of the methods underpinning assessment (such as collision risk modelling) are based on assumptions for which it may take a long time to get field data to provide verification.  So again judgements have to be made where empirical analysis is unable to provide certainty.

We discussed the issue of whether decisions should be based on a conclusion that thresholds should not be exceeded or whether an additional element of precaution should be applied to take account of uncalculated elements such as non-breeding mortality or to allow ‘headroom’ for future development.  I note that [MSS] consider that sufficient other elements of a precautionary nature are built in when setting the thresholds.  Setting a ‘safety margin’ on a threshold would also have to be a matter of judgement and not calculation, so all we can say is that the level of risk that populations will be impacted increases the closer you approach the threshold level.

We also discussed whether, if [the respondents] judged that on balance it was appropriate to consent these developments, the risks could be reduced further through additional measures.  Because of the limitations to our knowledge and understanding of the effects of wind farms on seabirds it is difficult to prescribe very detailed and sophisticated mitigation measures, but we can discuss this further if you wish.

Post-consent monitoring

The Forth & Tay is a unique area hosting an enormous richness of seabird diversity.  It could be seen as a flagship for renewable energy generation and a world class opportunity to develop the science and plug evidence gaps in this complex and fast moving area of study.  We therefore advise that any consents are made in a way that facilitates effective monitoring and we have provided [MS] with recommended conditions relating to an environmental monitoring programme and for an expert panel to oversee this work.  We think that establishing this approach is a high priority.”

 

[42]      On 16 July 2014, the SNCBs supplied their last advice on displacement rates for puffins and kittiwakes, given the alterations to the turbines; commenting on the lack of empirical data.   The AA was finalised on that date, although not approved until 7 October.  Discussion between the petitioners and MSS continued with an “extremely useful and constructive” meeting on 31 July, after which the petitioners were to carry out their own modelling based on the revised proposals using a “counterfactual” method.

[43]      On 1 August 2014, MS advised the petitioners that it was too late to consider further material.  However, on 14 August the petitioners wrote to MS expressing concerns about a lack of information and attaching a detailed critique from a Prof Rhys Green on MS’s methods entitled, somewhat provocatively, “Misleading use of science in the assessment of probable effects of offshore wind projects on populations of seabirds in Scotland”.  This attacked the use of ABC, ruABC, Band Option 3 and other aspects of MS’s methodology.  By e-mail dated 15 August the petitioners, having been supplied with more data, stated that the information was all that they needed to undertake their own review, although that might take “some time”.  That review did not materialise.

 

The Appropriate Assessment
[44]      The appropriate assessment (AA), required by the Habitats Regulations 1994 and 2010 and the Offshore Marine Regulations 2007, was carried out by the Marine Scotland Licensing Operations Team (MS-LOT) and Marine Science Scotland (MSS), who are, as already noted, internal departments of the respondents.  The AA records that MS-LOT had to be satisfied that the projects would not adversely affect the integrity of the SPAs before it could recommend the grant of consent.  They required to apply the “precautionary” principle.  The respondents could only authorise a development if they were certain that it would not adversely affect the integrity of a relevant site.  Such certainty was deemed to exist only if “no reasonable scientific doubt remains as to the absence of such effects”.

[45]      Consultation with SNH and the JNCC had been carried out.  There had been no attempt to seek the opinion of the general public, because the public had already had an opportunity to respond to the applications through the EIA process.  That process had notified the public of the ESs and SEISs prepared by the interested parties.  These, and other documents, had been made publicly available and consulted upon.  Consultation responses had been received from the petitioners, amongst others.  The petitioners had expressed significant concerns about the potential effects on several seabird species.  They had criticised the assessment methods used by MSS.  Their objection letters had, however, predated a range of mitigatory measures proposed by the interested parties to reduce the effects upon the seabirds.  The specific points raised by the petitioners were addressed in an appendix.

[46]      The conclusion of the AA was that the wind farms would not, either on their own or in combination with each other, adversely affect the integrity of the SPAs, including Fowlsheugh and the Forth Islands.  That was on the basis that certain conditions would be met.  Following the MSS advice, MS-LOT reached the view that the most up to date and best scientific evidence available had been used.  They were satisfied that no reasonable scientific doubt remained. 

[47]      The SNCBs’ advice, dated 7 March 2014, had been that the SPAs had, as their central conservation objective, the long-term maintenance of the bird population as a viable component of each SPA.  It was a relevant conservation objective that deterioration of the habitats, or significant disturbance to the relevant species, should be avoided, thus ensuring that the integrity of the sites was maintained.  The SNCBs’ advice had commenced with that relative to the NNG site.  This had been dated 28 November 2012.  It pre-dated the submission of the SEIS for that proposal and was no longer relevant.  Similarly, earlier advice, dated 28 March 2013, in respect of the Seagreen Alpha and Bravo applications, had been overtaken by the cumulative advice given on 7 March 2014.  That was regarded as the key response to refer to, as it superseded the individual assessments.  Further advice was received from the SNCBs on 15 April, 30 May, 6, 10, 17 June and 2, 4, 11 and 16 July 2014.  All of this had been available to view on the MS interactive website. 

[48]      The advice of the SNCBs dated 7 March 2014 had been that the wind farms, both alone and in combination with each other, were likely to have a significant effect because of either collision or displacement of, amongst other species, the kittiwake, gannet, puffin, guillemot and razorbill populations of the SPAs.  The AA proceeded to consider this in view of the conservation objectives.  The AA had gone through a number of changes.  Initial assessments had been carried out, which “identified unacceptably high levels of effect, resulting in a range of mitigation measures”.  Since receiving the negative advice on 7 March 2014, there had been significant reductions in the number of turbines.  The minimum turbine clearance had also been changed. 

[49]      Much of the AA is taken up with a discussion of assessment methods.  This involves the use of highly technical terminology, which is to an extent described in this Opinion, but without any suggestion that it is capable of being fully understood, without expert assistance, by a court of law.  The background was that the original ESs had used a variety of methods of assessment.  A cumulative assessment had been difficult and an attempt had been made to introduce a “common currency”.  This had involved an estimation of the level of predicted effect, due to collisions with turbines, displacement and barrier effects.  So far as collision was concerned, the ESs had used a Band model.  There was much consideration about whether it was appropriate to use the basic (Options 1 and 2), or the extended (Option 3) Band models. 

[50]      Displacement and barrier effects were “particularly challenging”.  There is much discussion in the AA about the appropriateness of using the method devised by the Centre for Ecology and Hydrology (CEH) and the value of its results.  The SNCBs’ advice in June and July 2014 had been that lower displacement rates ought to be used, given the greater turbine spacing. 

[51]      The AA continues with a discussion on the appropriate population modelling and its interpretation using “Acceptable Biological Change” (ABC) and “reduced uncertainty” ABC (ruABC).  Ultimately, so far as kittiwake was concerned:

“... different conclusions regarding the Forth Islands and Fowlsheugh SPAs are reached by the SNCBs and MSS due to different methods being used to set thresholds, and also different Options of the Band CRM model being used.  The details ... of this assessment lead MS-LOT to consider that Option 3 of the Band CRM is the most appropriate.  MS-LOT also consider that MSS provide good reasons for why their method for setting the threshold is the most appropriate ...  In addition the estimated effects are likely to be over-estimates as the reduced displacement rate for the [Inch Cape] site as advised by the SNCBs and MSS had not been used in the modelling.  MS-LOT therefore concludes that the Forth and Tay offshore wind farm proposals alone or in combination ... will not adversely affect the site integrity of ... Fowlsheugh, Forth Islands ... with respect to kittiwake ...”.

 

[52]      In relation to gannet, the conclusion was that:

“... it is the use of different options of the Band CRM model which results in different conclusions between the SNCBs and MSS.  The details provided ... of this assessment lead MS-LOT to consider that Option 3 of the Band CRM is the most appropriate.  Therefore, MS-LOT concludes that the Forth and Tay offshore wind farm proposals will not adversely affect the site integrity of the Forth Islands SPA with respect to gannet, either alone or in combination ...”.

 

Similar conclusions were also reached in relation to puffin.  In particular:

“... MS-LOT acknowledge the issues advised by CEH over the use of their model of puffin and the limitations advised by MSS of reliance upon use of proxy species and PBR for setting thresholds.  MS-LOT consider that the justification provided by MSS on the use of the common currency for estimating effects and the ... model for looking at the population consequences use the best available evidence and the most suitable techniques.  MS-LOT therefore concludes that the Forth and Tay wind farm proposals will not adversely affect the site integrity of the Forth Islands SPA with respect to puffin, either alone or in combination.  ...”.

 

Similar conclusions were reached in relation to the razorbill and the guillemot in the Forth Islands and Fowlsheugh SPAs.

[53]      So far as the overall conclusions on site integrity were concerned, the AA found as follows:

“In the assessments above MS-LOT have considered the conservation objective of ‘maintaining the population of the species as a viable component of the site’ on the individual qualifying features of the SPAs.  As the effects of the Forth and Tay Developments on the populations were found to be within acceptable thresholds for all the species being considered in this assessment MS-LOT concluded that the Forth and Tay Developments will not adversely affect the integrity of the SPAs with respect to the individual qualifying features.

Having determined that the ... Developments will not have a negative effect on the constitutive elements of the sites concerned, on having regard to the reasons for which the sites were designated and their associated conservation objectives, MS-LOT concludes that the proposed developments will not, on their own or in combination with each other ... adversely affect the integrity of the ... Fowlsheugh SPA, the Forth Islands SPA ...

The Marine Scotland Science Advisory Board (‘SAB’) has reviewed the ABC method, and considered concerns raised by the [petitioners] concerning the method.  The SAB had advised that the methods used and the scientific evidence applied in assessing the potential effects of the proposed Forth and Tay wind farms were judged to have been undertaken using an objective and impartial application of available science, and the science used in the assessment was the best available at the time.  The SAB also judged that MSS consulted with the relevant experts on the development of the methods employed, and the evaluation was conducted in an open and transparent way.  MS-LOT consider that the most up to date and best scientific evidence available has been used in reaching the conclusion that any decision to approve the ... Developments will not adversely affect integrity of the sites concerned and are satisfied that no reasonable scientific doubt remains.”

 

Further detailed matters addressing the specific concerns of the petitioners, relative to the ornithological issues, were recorded in an appendix.  It was this AA which was endorsed by the respondents.

 

The Decision Letters
[54]      On 10 October 2014 the respondents granted the various consents.  The decision letters describe the developments and the statutory and regulatory framework.  They note the existence of the AA; referring the reader to it for a “full explanation of the ornithology issues and justification for decisions regarding site integrity”.  They summarise the applicable policy and guidance, notably the UK Marine Policy Statement 2011, which set out the overall objectives for marine decision making.  These include considerations of the positive wider environmental, societal and economic benefits of low carbon energy generation.  The guidance also encompassed “Blue Seas-Green Energy: A Sectoral Plan for Offshore Wind Energy in Scottish Territorial Waters”. 

[55]      The letters note that only one objection had been received from the public to the Inch Cape application.  There were 3 to the Seagreen applications and 16 to NNG’s proposal.  There were objections from the petitioners, certain fisheries boards and Whale and Dolphin Conservation.  They express contentment that the material considerations had been addressed in both the applications and the responses from the closest onshore planning authorities, SEPA, SNH, the JNCC and “other relevant bodies”.  They record that no further information was required.

[56]      On the issue of the impact on seabirds, the letters are not all in identical terms.  They recognise that there was an outstanding objection from the petitioners concerning the impact on several seabird species, notably kittiwake, gannet and puffin.  The Inch Cape and Seagreen decision letters continue:

“Having carried out the AA (considering all the advice received from SNH, the JNCC and MSS) it can be ascertained with confidence that the Development, subject to appropriate conditions being included within the consent, … will not adversely affect site integrity of any of the identified SPAs ...  SNH and the JNCC are in agreement with the AA conclusions for the marine mammal and freshwater fish SACs and in some instances the SPAs.  There is, however, disagreement on the conclusions concerning the impacts upon:

            Fowlsheugh SPA with respect to kittiwake; and

            Forth Islands SPA with respect to kittiwake, gannet, puffin and razorbill.

This disagreement is regarding differences in assessment methods and the SNH and the JNCC view that the closer the effects are to thresholds the greater the risk of adverse effects.  The [respondents] consider that the best available evidence has been used in the AA and that the assessment has been precautionary.  A full explanation of the ornithology issues and justification for decisions regarding site integrity is provided in ...[the] APPROPRIATE ASSESSMENT.”

 

The NNG letter is differently structured and phrased but is ultimately similar in import.  It notes the disagreement on impacts and the reasons for them as discussed in the AA.

[57]      The letters contain a section on the respondents’ consideration of the environmental information.  They express satisfaction that the ES had been produced in accordance with the regulations and that the applicable procedures regarding publicity and consultation had been followed.  Inch Cape and Seagreen letters state that the respondents had taken into consideration the environmental information “including the ES, the AA and the representations received from the consultative bodies …”.  The NNG letter does not state that the AA was taken into account as environmental information. 

[58]      Continuing with the respondents’ consideration of the possible effects on European sites, the letters repeat the passage quoted above regarding the areas of disagreement; both Inch Cape and Seagreen (but not NNG) letters  referring again to the AA.  The letters make specific reference to Article 6.3 of the Habitats Directive and state that the respondents were satisfied that the test therein (contained also in the Regulation 48 of the Habitats Regulations 1996 and Regulation 61 of Habitats Regulations 2010) had been met. 

[59]      The Inch Cape letters continue:

“The [respondents] are convinced that, by the attachment of conditions to the consent, the Development will not adversely affect site integrity ...  The [respondents] are satisfied that no reasonable scientific doubt remains as to the absence of such effects and that the most up-to-date scientific data available has been used.

A recent announcement by the Scottish Government has highlighted the Outer Firth of Forth and Tay Complex as a draft marine SPA as it meets the SNH and the JNCC selection guidelines.  A formal consultation will be undertaken towards the end of 2014/beginning of 2015.  Following consultation it is possible that this area could become a designated marine SPA towards the end of 2015.  At this stage a further AA may be required if Likely Significant Effect (‘LSE’) on the qualifying features is identified from the Development.  Under the Habitats regulations this must be carried out as soon as is reasonably practicable following designation.”

 

[60]      The letters only then proceed to set out the respondents’ consideration of the applications themselves.  They do so having narrated that: (a) the wind farms accorded with the applicable planning policies and guidance; (b) the appropriate statutory procedures had been carried out; and (c) the developments would not adversely affect the integrity of the sites.  The sections on seabirds record the concerns expressed by SNH, the JNCC and the petitioners about the potential impact on several species.  The particular advice from SNH and JNCC dated 7 March 2014 is again noted; in particular the disagreement with what was ultimately concluded in the AA that Fowlsheugh SPA kittiwake and Forth Islands SPA kittiwake, gannet, puffin and razorbill would not be adversely affected.

[61]      The reasoning concerning seabirds is as follows:

“Following a meeting held on 7th July 2014 between [MS] and SNH, SNH followed up with a letter of 11th July which stated that they had the opportunity to review and discuss aspects of their advice where conclusions reached by SNH & JNCC on Special Protection Areas are at variance from those reached by [MSS].  This was done in an effort to understand the nature and origin of the differences, and the extent to which they were germane to the decisions facing the [respondents] with regards to this Application and the other applications for wind farms in the Forth and Tay.

In the letter, SNH noted that there was agreement between their advisors on the vast majority of the issues raised by the Forth and Tay proposals in terms of their effects on the natural heritage and in particular on protected species of seabird.  SNH also noted that there were precautionary elements in the approaches taken and the models recommended by SNH & JNCC and by [MSS].

SNH stated that the level of precaution which is appropriate is not a matter which can be determined precisely and that judgements have to be made.  They went on to say that this is a new and fast developing area of scientific study and that approaches are continually developing and being tested.  Many of the methods underpinning assessment (such as collision risk modelling) are based on assumptions for which it may take a long time to get field data to provide verification.  So again, judgments had to be made where empirical analysis is unable to provide certainty.

SNH outlined several areas of ornithology monitoring which they recommended should be included in any consent granted.  These are:

the avoidance behaviour of breeding seabirds around turbines;

flight height distributions of seabirds at wind farm sites;

displacement of kittiwake, puffin and other auks from wind farm sites; and

effects on survival and productivity at relevant breeding colonies.

The [respondents] consider that, having taken account of the information provided by the Company, the responses of the consultative bodies, the AA completed, and having regard to the mitigation measures and conditions proposed, there are no outstanding concerns in relation to the Development’s impact on birds which would require consent to be withheld.”

 

[62]      A large number of other issues are covered in the letters, including impacts on fish and shellfish, commercial fishing, navigational safety, aviation, recreation and tourism, and visual aspects.  The cumulative effects of these impacts were considered.  The letters then turn to the benefits of wind energy as a “necessary component of a balanced energy mix which is large enough to match Scotland’s demand”.  The Inch Cape wind farm alone was capable of generating sufficient energy for the needs of 500,000 homes, which was consistent with the respondents’ policy on the promotion of renewable energy and its target of a 100% equivalent to Scotland’s total demand from renewable sources by 2020.

[63]      A summary of the reasoning is set out as follows:

“The [respondents] consider the following as principal issues material to the merits of the section 36 consent application made under the Electricity Act:

The [applicant] has provided adequate environmental information for the [respondents] to judge the impacts of the Development;

The ... Application and the consultation process has identified what can be done to mitigate the potential impacts of the Development;

The matters specified in regulation 4(1) of the 2000 Regulations and regulation 22 of the 2007 Regulations have been adequately addressed by means of the submission of the ... ES, and the [respondents] have judged that the likely environmental impacts of the Development, subject to the conditions included in this consent ..., are acceptable;

The [respondents] are satisfied that the Development can be satisfactorily decommissioned ...

The [respondents] have considered material details of how the Development can contribute to local or national economic development priorities and the Scottish Government’s renewable energy policies;

The [respondents] have considered fully and carefully the Application and accompanying documents, all relevant responses from consultees, and the ... public representation(s) received; and

On the basis of the AA, the [respondents] have ascertained to the appropriate level of scientific certainty that the Development (in combination with ... all other relevant developments, and in light of mitigating measures and conditions proposed) will not adversely affect site integrity of any European protected sites, in view of such sites’ conservation objectives.”

 

The Petition
[64]      The averments in the petitions are extremely lengthy and, in some respects, convoluted and repetitive.  The Inch Cape petition contains 33 statements of fact, many of them broken down into sub-paragraphs.  They occupy, with answers, 184 pages.  They nevertheless purport to incorporate, as part of the pleadings, and for reasons which are often not at all clear, a very large number of documents brevitatis causa.  It is relatively immediately clear that the petitioners seek reduction only of the consents, as distinct from the appropriate assessment, but isolating the specific grounds upon which they do so requires a substantial, time consuming, search.

[65]      The pleas-in-law, which ought to focus the legal issues clearly, succeed in achieving the opposite.  They are in a most general form, apparently designed to encapsulate almost all conceivable avenues of review, as follows:

“1.       The Decision of the Respondents being based on procedural irregularity and/or a failure to act fairly it should be reduced.

2.         The Decision having proceeded on an inadequate et separatim incorrect factual basis it should be reduced.

3.         The Respondents having acted unlawfully and/or ultra vires and/or unreasonably the Decision should be reduced.

4.         The Respondents having failed to give proper adequate and intelligible reasons for its Decision the Decision should be reduced”.

 

[66]      The first hint of procedural irregularity appears in statement 17, where it is averred that the petitioners did not have sufficient information to enable them to provide meaningful representations.  It is also said that the petitioners were not aware of when decisions were to be made.  In statement 20 it is averred that a significant proportion of the: “environmental information and methodologies” which:

“formed the basis of the … consent and the related [AA], were substantially provided by the Respondents’ own internal advisers or obtained at their request through external consultants or provided by the applicants other than by the ES and SEIS”. 

 

This information is said to be contained in “Information Tables”, but those produced refer primarily, although by no means exclusively, to documents rather than information.  Accessing a particular piece of information which was not provided is not a straightforward task.

[67]      The grounds of challenge begin at statement 21 under a subhead “(a) Information/consultation” (Ground A).  The narrative, so far as relevant, is:

“XXI    In breach of the EIA Directive and/or 2000 Regulations the Respondents granted the Section 36 consent on the basis of significant environmental information that had not been made available to the public in that in taking their decision they took into account (a) substantive information relating to the environment statement which had been provided by the applicant and consultative bodies SNH and/or JNCC and so was additional information as defined within the 2000 Regulations requiring to be publicised under Regulation 14A and (b) substantive environmental information which had been provided by their own internal advisers and/or consultants and/or other consultees which had not been made available to the public as required by the EIA Directive and/or the 2000 Regulations as is more specifically referred to in the Schedule produced herewith.  Such a grant was contrary to Regulation 3 of the 2000 Regulations. ...

XXII     Further in carrying out its duties under the 2000 Regulations the Respondents in order to secure compliance with the EIA Directive should have required the applicant to have included the information not subject to publication under Regulation 14A as identified in the Information Tables in particular information provided by the Respondents’ own advisers and/or external consultants or at least the substance of it as either additional or further information so as to ensure that it was duly publicised and consulted on to enable effective public participation.  Failure to do was a breach of Regulation 3 of the 2000 Regulations and/or the EIA Directive ... 

XXIII   The petitioner was in any event consulted by the Respondents as to the potential impact on seabirds and such consultation exercise continued after the receipt of the Petitioner’s comments on the applicant’s SEIS as provided for by the 2000 Regulations.  Having determined to continue involving the Petitioner in such consultation the Respondents were required to provide the Petitioner with sufficient information so as to enable it to respond effectively.  Esto, ... the Petitioner was not treated as a consultee, in all the circumstances including in particular the importance of the impact on birds and the position, experience and knowledge of the Petitioner there was a common law duty so to treat it and the Respondents erred in not doing so ...

XXIV   Irrespective whether consultation was a legal requirement once embarked upon it must be carried out properly which includes inter alia providing the consultee with sufficient information and time to enable it to give an intelligent response.  By failing to provide the Petitioner with the material noted in the Information Tables marked attached hereto, namely the full environmental information including SNCB advice, assessment methods and data used for the formal decision making process, the Respondents prevented the Petitioner from providing an intelligent response and erred thereby.”

 

[68]      The next challenge is sub-head “(b) Errors deriving from the approach to and content of the [AA]” (Ground B.1).  The critical averment is this:

“The Appropriate Assessment and hence the Decision is flawed in that it has taken into account immaterial considerations and left out of account material considerations and in its overall conclusion as to the lack of reasonable scientific doubt as to the absence of such effects it is perverse.”

 

The petitioners identify two parts to the AA.  The first is productivity and mortality and the second is the acceptability of the resultant population scale effects.  On the first, the petition embarks (stat 27) upon an in-depth description of the Band modelling methods and states (stat 28) that it has been used incorrectly in the AA.  It then dives deeper by describing where MS went wrong.  Under a sub-heading “Assessment of mortality due to Collision” the petitioners identify a number of alleged errors, notably: (a) incorrect use of generic data without comparison with site specific data; (b) use of wrong model option in contravention of best scientific advice; (c) incorrect use of avoidance rates,  in contravention of best scientific advice; and (d) no indication of uncertainty.

[69]      Under a sub-heading “Setting of thresholds to determine population scale effects” the petitioners refer to ABC as a novel technique using PVA forecasting and developed by MSS specifically to “manage decision-making for the east coast offshore wind farm proposals”.  It is attacked as not being scientifically valid on the following bases: (e) use of an arbitrary threshold; (f) does not consider the uncertainty around impacts; and (g) allows greater levels of mortality where there is greater uncertainty.

[70]      The petition then carries the sub-heading “Use of Scalar method/MMS interpolation method”, which it also describes as novel and introduced by MSS in their advice to MS-LOT.  The method is described in some detail before also being categorised as “not scientifically valid” for the following reasons: (h) late introduction of a novel method and reservations by SNCBs; (i) exacerbates problem with setting arbitrary thresholds; (j) implies over simplistic relationship between survival and productivity; (k) use of the Scalar method is unnecessary; and (l) does not accord with a precautionary approach.

[71]      The petition states (Stat 29) that the AA “and so the decision” failed to take into account three material considerations, thus meaning, it is averred, that the respondents erred in law.  The first was that the AA only took into account the risk to the adult breeding population during the breeding season and omitted juveniles, non-breeding adults and members of the colony outwith the breeding season.  The second was that disturbance was only considered to be of significance if it could undermine the conservation objectives relating to population viability and not in its own right.  The third was that the AA, when considering the cumulative effects, limited consideration to the breeding season and breeding adults and had little regard to non-dominant foraging grounds.  

[72]      The averments in each of the sub-headings (a) to (l) (supra) and the three defects in the AA are answered in equal detail by the respondents and the interested parties.  There is a further challenge (Stat 30) (Ground B.2) concerning the respondents’ alleged failure “to have proper or adequate regard to the future designation of the Outer Firth of Forth and Tay Bay Complex” as a SPA.  This failure is said to be in breach of the respondents’ duties under the Wild Birds Directive and the Habitats Regulations; there having been evidence to justify its designation since 2006.  The respondents ought to have treated the Forth and Tay as if it was already a SPA under Article 4.1 of the Wild Birds Directive, or alternatively, the Habitats Directive.  In undertaking the AA and making the decisions, the respondents should have taken into consideration the future designation, or at least the possibility of future designation, of the Forth and Tay Bay Complex as a SPA.  No reference had been made to future designation in the decision letters or the AA.  No regard was had to the “very strong scientific case” for designating the site as a SPA

[73]      There then follows a separate ground of challenge (Ground C) relating to reasons.  This is expressed as follows:

“XXXII              As the Decision and Appropriate Assessment acknowledged the conclusions they reached were inconsistent with views expressed by SNH and JNCC and the Petitioner.  Given SNH’s and JNCC’s roles as the appropriate statutory nature conservation bodies it was incumbent on the Respondents to accord considerable weight to their advice and to have cogent and compelling reasons for departing from it.  Further unless they could conclude that such advice was wrong they could not reasonably reach the conclusion that no doubt remained as to the adverse effects on the relevant SPAs and their species.  Likewise, in the circumstances unless the Respondents could conclude that the Petitioner’s representations were wrong they could not reasonably reach the conclusion that no doubt remained as to adverse effect on the relevant SPAs and their species.  The respondents erred in failing to give cogent and compelling reason for departing from the views of SNH and JNCC.  Further the Respondents merely found that the methods used by SNH and JNCC were not the most appropriate and did not use the best available evidence and did not find that either of those bodies’ or the Petitioner’s views were wrong erred in reaching a conclusion as they did as to lack of impact.”

 

The Lord Ordinary’s Decision
[74]      The Lord Ordinary dealt with the four petitions together, issuing a main Opinion in the Inch Cape case.  He focussed, as the arguments before him had done, on the section 36 consents.  He identified three grounds of challenge.  The first (Ground A) was that the respondents had failed to comply with the provisions of the EIA Regulations 2000 or, alternatively, at common law, to consult on environmental information and thereby acted unlawfully by taking into account information which had not been consulted on.  The second (Ground B) was divided into two parts.  Ground B.1 was that the AA had taken into account irrelevant considerations, left out of account relevant considerations, applied the wrong test and reached a “perverse” conclusion.  Ground B.2 was that the respondents were in breach of their EU obligations, by refusing or delaying to classify the Forth and Tay Bay Complex as a SPA.  The third (Ground C) was that the respondents had failed to give appropriate weight to the advice tendered by the statutory conservation consultees or, alternatively, had failed to give an adequate explanation for rejecting their negative advice.

 

Ground A

[75]      The Lord Ordinary summarised his conclusion on Ground A by way of a preface (para [50]):

“If new information, being ‘information which is relevant for the decision’ in terms of [the EIA Directive] ..., art 6(3)(c), is to be taken into consideration, the new material must be processed by notification, publication and consultation so as to become ‘environmental information’”. 

 

Having summarised parties’ submissions, he identified the determining issues as being whether: (1) the information was (i) unshared, (ii) substantive and (iii) used for the AA; and (2) the AA, or the data in it, fed into the EIA.  He answered these questions in the affirmative.  Although the petitioners may have received or accessed the information at some stage, it had not been made part of the ESs or additional or further information.  The petitioners had not obtained it in time for the consultation deadline of 26 March 2014.  The AA, or the information it contained, was used as, or as if it was, environmental information for the purposes of the EIA Regulations 2000.  There was specific reference in the decision letters to the AA being taken into account.  The substantive information supporting the conclusion of the AA should, he repeated, one way or another, have been processed in terms of those Regulations. 

[76]      The Lord Ordinary accepted that, if the AA data had been properly processed through a further consultation round, the petitioners would have made representations.  They had, however, been prevented from providing an intelligent response.  Given this approach, he did not consider that it was necessary to address the common law consultation argument.  Although the Lord Ordinary was not satisfied that the information was capable of being additional, the potential solution was to require the AA to be processed as further information in terms of the EIA Regulations 2000. 

[77]      The Lord Ordinary accepted that, even if a breach of the EIA Regulations 2000 had been established, the court could nevertheless refuse relief if the petitioners had been able in practice to enjoy the rights conferred by the Regulations and had suffered no substantial prejudice (R (Champion) v North Norfolk DC [2015] 1 WLR 3710 at para 54, following Walton v Scottish Ministers 2013 SC (UKSC) 67).  The Lord Ordinary returned to the EIA Directive, notably Article 11, which required Member States to ensure the availability of judicial processes to challenge the legality of environmental decisions.  Ultimately, he reached the view that the consent decisions were seriously flawed, not simply because of procedural irregularity, but because they were ultra vires.  

[78]      Employing a purposive interpretation stemming from the Aarhus Convention, the Lord Ordinary reasoned that there had been a breach of Article 8 of the EIA Directive, which requires the information gathered under Articles 5 and 6 to be taken into account in the decision-making process.  The information had to be consulted upon and, if it were not, the corollary must be that it could not be taken into account; yet it had been.  The respondents had made the decision on the basis of information which, because it had not been consulted upon, they were disempowered from considering in terms of Regulation 4(1) of the EIA Regulations 2000.  It could not be contended that there had been substantial compliance, notwithstanding a procedural lapse.  The information wrongly taken into consideration had been determinative.  The Lord Ordinary also held that Article 6.2, which required the public to be notified of any relevant information, had been breached.  There was no requirement for the petitioners to demonstrate substantial prejudice.  They were vindicating a public interest in the natural environment.  It was for the respondents to demonstrate that the decisions would now be no different or that the petitioners had suffered no prejudice.

[79]      The Lord Ordinary noted that, although there had been scarcely any debate on the issue of the Marine Works Regulations 2007 consent, it too had been based on unconsulted on information.

 

Ground B.1

[80]      In relation to Ground B.1, namely the attack on the AA, the Lord Ordinary accepted the correctness of the petitioners’ view that a “sound” AA was a precondition for a lawful consent.  He remarked that the petitioners did not seek to have the AA itself set aside.  He made a general comment that the decision letters were not “accessible” in the form in which they had been presented.  The irony in that is that the Lord Ordinary’s treatment of the AA and the decision letters is itself so highly discursive, in its meanderings through the ornithological data, as to be almost impenetrable in large part to persons not qualified in the relevant science.

[81]      The Lord Ordinary derived a number of well-known propositions from Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en Visserij (C-127/02) [2005] 2 CMLR 31 and Sweetman v An Bord Pleanála (C-258/11) [2014] PTSR 1092.  He added that, where the source of a defect was EU law, the burden lay on the party supporting the decision to demonstrate that the outcome “would not conceivably have been different”.  He accepted that, where evaluative judgments were to be made, a “Wednesbury” standard of review applied (Smyth v Secretary of State for Communities and Local Government [2016] Env LR 7 at para 78), but this left open the extent to which evaluative judgments had to be made both at the AA and the decision stages.

[82]      The Lord Ordinary noted that the AA had to look at the implications for the relevant sites in light of their conservation objectives.  The conclusion of the ornithological section had been that the effects were within acceptable thresholds.  This was, he thought, in principle entirely reasonable so far as it went.  The question was whether the conclusions of the AA satisfied the legal test; that being said to be whether its conclusions were capable of removing all reasonable doubt.

[83]      The Lord Ordinary turned to site integrity and reasonable doubt and concluded as follows:

I am not convinced that a sea bird [AA], however skillful, however conscientious, can aspire in the present state of knowledge to be more than a kind of structured haruspication[1].  Still, exercises of this type should abide by the rules including the rules they set themselves; and in at least four of the respects identified by the [petitioners] this [AA] does not do so.  It does not allow for the exclusion of, or exclude, adverse in-combination effects on site integrity to the requisite degree of certainty in respect of all qualifying interests of each SPA.  ... [T]he development authorisations purport to be certain about the absence of adverse effects without addressing all effects which have to be considered.”

 

[84]      The first of the four difficulties which the Lord Ordinary identified was the use of the extended interpolation or “scalar” methodology to identify thresholds.  The Lord Ordinary had noted the premise of the AA that there was such a thing called acceptable change, or natural variation.  The rationale was that change was acceptable, if it was within the range of what would be expected under natural conditions.  The SNCBs had proposed a method of mitigating human error by comparing data from actual sites with results from the CEH’s larger regional models.  This was the “reduced uncertainty” ABC (ruABC).

[85]      The Lord Ordinary remarked that “the statistical and biological rationale [of scalar] is not obvious and is not explained in a way that I can understand ...”.  He considered that what was happening was a “moving of the goalposts”.  He later said:

“To be clear, scalar is a novel method improvised by MSS specifically for the Forth and Tay combined assessment.  It is not included in the environmental statements.  It has not been published.  It has not been peer-reviewed.  It has not been consulted on, or fully consulted on.”

 

He observed that the impacts on certain species were within the threshold of acceptable change, set by using ruABC with scalar.  However, the whole threshold setting package was contrary to the advice of the SNCBs.  That advice, although not binding, was entitled to considerable weight. 

[86]      The Lord Ordinary then made the following, rather odd, remark:

“The [petitioners] having been excluded from the process, the SNCBs are the only voice speaking for the birds” (emphasis added).

 

This is followed by clearer reasoning:

“... where certain assumptions and methodologies contested by the [petitioners] have the expert support of the SNCBs, it may not be easy to fault the assessment; and so, by the same token and conversely, where [AA] methodologies are not accepted or are rejected by the SNCBs, as scalar is, the question is whether the assessment is capable of overcoming the doubts expressed by the SNCBs, giving ‘cogent and compelling reasons’, with ‘complete, precise and definitive findings’ using ‘the best scientific means’. ... Rather than removing doubt, the passages on scalar in the [AA] introduce doubt.”

 

[87]      On this basis, the Lord Ordinary was not satisfied that scalar was intelligible from a statistical or biological perspective.  If it was a method, rather than an evaluative judgment as it claimed, it was not the best scientific means.  He drew this conclusion in part from what he referred to as the general teaching of the law about the recognition of methodology which claims to be science.  If scalar was not the best science, it could not provide the best evidence.  Thus, the Lord Ordinary concluded:

“In relying on the scalar-derived thresholds MS-LOT, as an assessor, has made a mistake which flaws the [AA].  Whether as an assessor or as a decision-maker MS-LOT is not entitled to conclude that the forecast biological change to the Forth Islands and Fowlsheugh kittiwake populations is acceptable using scalar-derived thresholds.  On no reasonable view is MS-LOT entitled as a decision-maker to conclude beyond reasonable scientific doubt that adverse effects on the integrity of the Forth Islands and Fowlsheugh SPAs are excluded.  This by itself is a ground for deciding the proceedings in favour of the [petitioners].”

 

[88]      The second difficulty was the quantification of population effects.  Apart from a question about flight density estimates, the only difference between the analysis of the SNCBs and that in the AA had been the choice of Option 2 rather than Option 3.  The difference between the respective CRMs was that the Option 2 assumed a uniform distribution of birds and risks through the whole height of a turbine area, whereas Option 3 produced an output from non-uniform flight height distributions and differential risks, depending on flight height.  The assumption of Option 3 was that seabird flight distribution was skewed towards lower flight heights.  The Lord Ordinary reached the view that the problem with Option 3 had been recognised by Mr Band in his note of 4 July 2014.  In this he had said that the observed flight of certain gulls had led to the conclusion that, far from being skewed in the manner suggested, the flying height would actually peak within the turbine area.  Option 3 was thus based on an invalid assumption. 

[89]      The Lord Ordinary accepted the “evidence”, presented by the petitioners, that the AA’s application of Option 3 was methodologically flawed.  Contrary to advice, it had used generic flight height distribution data, rather than site specific data, and did not compare all data to ascertain the reason for any discrepancies.  MSS had wrongly claimed that comparisons could not be done.  There were several difficulties with the use of Option 3.  The first was one of inherent implausibility.  The second was that a transparent AA would present the points at which the different approaches diverged.  The AA had not done this.  The only justification offered for using Option 3 was that MSS had advised that it provided the most realistic evidential base.  Lastly, Mr Band had advised against using the model.

[90]      The AA had failed to mention the evolution of Option 3 and that the respondents had not been told of Mr Band’s advice.  This amounted to a failure to use the best scientific knowledge in the field.  A relevant matter had been omitted.  The AA was thus flawed.  MS-LOT were not entitled to conclude beyond reasonable scientific doubt that adverse effects were excluded.

[91]      The third area of difficulty was that the AA left non-breeding impacts out of account.  The Lord Ordinary had already observed that only impacts on breeding adults and productivity had been modelled in the PVA.  There had been no resolution of the divergence between the SNCBs and MSS about non-breeding effects.  The respondents had offered a number of reasons for not assessing non-breeding impacts, including that they were following advice from the SNCBs.  The Lord Ordinary considered that the advice of the SNCBs had been misunderstood by MSS.  While a quantitative assessment of non-breeding impacts might be difficult and even impracticable, it was a material consideration and should have been taken into account, or at least identified as a material uncertainty.  The Lord Ordinary rejected the reasons given by MSS for leaving non-breeding impacts out of account.  The omission was a lacuna of the kind referred to in Sweetman (supra).

[92]      The fourth area of “possible doubt” was contained in the figures for 25 year end population outcomes.  The AA did not offer a reasoned judgment as to whether Counterfactual Population Size (CPS) values were consistent with the maintenance of site integrity, applying the precautionary principle.  The explanation tendered by the respondents wrongly assumed that the issue was whether CPS values should be the sole “metric” (ie measure).  The Lord Ordinary accepted that they should not be, but he was satisfied that they were a relevant measure.  That being so, they should not have been left out of account.  In so far as the MSS AB had endorsed the absence of an assessment of cumulative end population effects, they had erred as a matter of law.

[93]      The Lord Ordinary turned to the question of whether the AA might “not inconceivably” be different if re-made.  He was not satisfied that it had been established that a different outcome was inconceivable.  First, a different outcome did not necessarily mean the refusal of all the applications.  There were different options in relation to each project.  Secondly, he regarded it as “implicit” that cumulative effects over time had to be assessed.  Thirdly, the MSS allowable annual effects were contested, because of the methodologies used.  Fourthly, the attitude of the respondents to the expression of cumulative effects had been equivocal.  Fifthly, the AA might easily be rewritten.  The conclusion, as it stood, was narrowly based, essentially upon in-house advice on contested science.  The inferences drawn were contrary to the representations made by the petitioners and the SNCBs.  If the AA were to be re-made, addressing the question of cumulative effects and with the benefit of fresh inputs about CPS, the conclusion reached might well be different. 

 

Ground B.2
[94]      The Lord Ordinary sustained the argument that the failure by the respondents to take into account a draft proposal for the classification of a Forth and Tay Bay Complex as a SPA, as if that SPA had already been classified, rendered the decisions unlawful.  He focused again on the Directives.  He noted that the Wild Birds Directive had been transposed into domestic law by the Habitats Regulations 1994.  These expressly applied only to areas within territorial waters.  It was only with the Offshore Marine Habitats Regulations 2007 that they had been extended beyond the territorial sea, up to the British fishery limits.  Meantime, there had been work done to identify marine SPAs.  Eventually, on 22 July 2014, SNH, the JNC and MS had released information that there were to be 14 SPAs in Scotland.  These became draft SPAs (dSPAs).  One of them was to be the Outer Firth of Forth and Tay Bay Complex, lying between St Abbs Head in the south and Red Head, between Arbroath and Montrose, in the north.

[95]      The Lord Ordinary cited guidance offered by the European Commission in relation to dSPAs.  This referred to Commission ν Spain (Santoña Marshes) (C-355/90) [1993] ECR I-4221; the rationale of which was that sites that deserved classification should be treated in the same way as those that had been classified.  The Lord Ordinary referred to Scotland’s National Marine Plan, which stated that authorities should afford the same level of protection to proposed SPAs (pSPAs) as they did to sites which had been designated.  However, the use of the word “proposed” was referable to the stage after a proposal had gone to the respondents in terms of the Habitats Regulations 1994.  The Forth and Tay Marine dSPAs had not attained the status of proposed and therefore did not benefit from the protection conferred by the Planning Policy.

[96]      The Lord Ordinary noted that the AA did not mention the dSPAs, although the decision letters did.  Ultimately, he decided that the ground of challenge failed on its primary basis.  He did not consider that he was entitled to find that the respondents had breached an obligation to classify the dSPAs.  The effect of Commission ν France (Basses Corbières) (C-374/98) [2000] ECR I-10799 was that Article 6.3 of the Habitats Directive did not apply.

[97]      The Lord Ordinary went on to consider an alternative challenge, which was that, applying the ratio of Basses Corbières, the dSPA was an area which should have been classified as a SPA and therefore fell within the protection of Article 4.4 of the Wild Birds Directive.  On this basis the area should have been treated as a SPA, because the selection criteria had, according to the SNCBs, been met.  The respondents had accepted that that was so.  They did not advance any reason why the area should not be treated as a SPA.  Therefore, the fact that no breach of a treaty obligation had been declared was irrelevant (cf Humber Sea Terminal v Secretary of State for Transport [2006] Env LR 4).

[98]      There was also a communication justification (R v Secretary of State for the Environment ex parte RSPB (Lappel Bank) (C-44/95) [1997] QB 206).  To countenance delayed classification would jeopardise the achievement of EU objectives.  The Lord Ordinary held that the respondents had unlawfully omitted to have regard to a material factor, notably a failure to take into account the dSPA.  The respondents had been bound to process the data underlying the dSPA as additional information and to require the interested parties to provide further information on the likely effects on the dSPAs, in terms of the EIA Regulations 2000.  If the EIAs were to be re-made, then they ought to include a “shadow” AA in respect of the impacts on the dSPA. 

 

Ground C: Reasons for rejecting advice
[99]      The Lord Ordinary held that the complaint of inadequacy of the reasons, in the consents and the AA for not accepting the advice of the SNCBs about adverse impact, had been adequately dealt with in connection with Ground B.1.  He did not address it separately. 

 

NNG Opinion
[100]    In his separate opinion in the NNG petition, the Lord Ordinary referred to the omission (supra) of any reference to the AA in the section of the decision letter dealing with environmental information.  This distinction had not been founded upon in the pleadings.  It had not been the subject of submissions.

[101]    The crux of the Lord Ordinary’s reasoning on Ground A was that the AA, or the information that it contained, was, or was treated by the respondents as if it was, environmental information.  The Lord Ordinary relied upon the fact that the decision letters expressly referred to the AA being taken into account as part of the environmental information.  In the NNG decision letter, that was not the case.  He characterised the issue in the NNG petition as being whether the decision letter meant what it said, or whether the AA had in fact been taken into account.  He concluded that the AA had been taken into account.  The respondents could not have evaluated the data in the SEIS without taking into account how the information had been developed by MSS in the AA.  The NNG cumulative assessment had been supplemented by information about the Inch Cape project which had not been available when the SEIS had been submitted.  The multiple references to the AA in the rest of the letter were consistent with the AA being treated as if it were part of the information required for the EIA consent process.  The failure to mention that the AA had been taken into account as environmental information had been a mistake in the letter.

 

Submissions
Respondents
Ground A

[102]    The EIA and the AA were distinct assessments and were dealt with separately by the respondents.  Although the respondents had been under no obligation to consult the petitioners on the AA, the respondents, the SNCBs and the interested parties had all engaged closely with the petitioners, who had had ample opportunity to comment on the science upon which the AA was based.  The petitioners’ approach was that the respondents required to carry out an “open book” exercise, whereby the petitioners would have access to all the information which found its way into the AA.  They based their submissions on “Information Tables”, listing 150 separate documents.  The Lord Ordinary had not heard any evidence about the nature, meaning or relevance of the documents.  No findings were made about either: (i) what relevance any document might have had; or (ii) whether it had or had not been shared.

[103]    The Lord Ordinary provided no basis for his conclusion that, insofar as information was used for the AA, it could properly be called substantive.  The descriptor “substantive” was taken from the EIA Regulations 2000, which were not concerned with an AA.  Whether an item of information did or did not fall within a particular statutory description was for the judgment of the primary decision-maker (R (Evans) v Basingstoke and Deane BC [2013] EWHC 899 (Admin) at paras 280-281 & 289-291; R (Evans) v Secretary of State for Communities and Local Government [2013] JPL 1027 at paras 32-43; Smyth v Secretary of State for Communities and Local Government [2016] Env LR 7 at para 80).

[104]    It was for the respondents to decide whether the ESs were sufficient.  The respondents had required to conduct further work on their own account in relation to the AA, but not the EIA.  The information listed by the petitioners in their Tables was not additional or further information.  Even if there had been an obligation to send specific documents to the petitioners, the respondents had explained why they were not of any materiality.  The same point applied in relation to the treatment of this information under both the EIA Regulations 2000 and the Marine Works Regulations 2007.  It was not part of the petitioners’ case that either the Habitats or Wild Birds Directives had not been properly transposed into domestic law.

[105]    The trigger for an EIA was that the proposed development was likely to have significant effects on the environment.  The ES was prepared by the applicant.  Certain authorities were given an opportunity to express their views on the application and the ES.  The public required to be informed, to have access to certain information and to be able to make comments.  The fundamental object was the assessment of the environmental effects (R (Buckinghamshire County Council) v Secretary of State for Transport [2014] 1 WLR 324 at para 84).  The decision-maker was obliged to consider the environmental information, but his decision would also be affected by many other considerations, including the need for renewable energy production to counter climate change.  The EIA Regulations 2000 had to be interpreted as a whole and in a common-sense way: R (Blewett) v Derbyshire CC [2004] Env LR 29 at paras 41- 42).

[106]    In contrast, an AA was separate from an EIA (R (An Taisce (The National Trust for Ireland) v Secretary of State for Energy and Climate Change [2015] PTSR 189 at para 16; Commission v Ireland [2007] ECR I-10947 at para 231; R (Champion)) v North Norfolk District Council (supra) at para 39).  It was carried out by the competent authority and not by the applicant.  It was not an assessment of the environmental impacts of a project, but of its implications for the particular site.  There was no obligation to consult, or otherwise to obtain the opinion of, the general public in relation to an AA.  There was no provision for the publication of information obtained for, or founded upon in, the AA.  The AA and the relevant information had to be made available to the public under the terms of the Environmental Information (Scotland) Regulations 2004 (the EIS Regulations).  For an AA, no special procedure was prescribed.  While a high standard of investigation was demanded, the issue ultimately rested on the judgment of the authority (R (Champion) v North Norfolk DC (supra) at para 41; see also Waddenzee (supra) at para 52 and at para 107 of the AG’s Opinion).

[107]    The first step in the Lord Ordinary’s analysis, that the respondents had decided these applications under the EIA Regulations 2000 by taking into consideration the AA as part of, or as if it had been part of, the “environmental information”, was not a matter on which the parties had made any submissions.  Where there was express consideration of the environmental information in the decision letters, the AA was not mentioned.  The earlier references to it were superfluous; although it was hardly surprising that they should make some mention of the prior jurisdictional hurdle.

[108]    The second step was the Lord Ordinary’s finding that a consideration of a project’s environmental impact necessarily included the more focused and more stringent “habitats impact assessment”.  This was an error.  The respondents were entitled to, and did, require applicants to provide information necessary for the AA (Marine Works Regulations 2007 reg 25(2)).  The environmental information, which the respondents required to consider under the EIA Regulations 2000, did not include the AA.  The respondents were obliged to take into consideration the environmental information, which was defined as meaning the ES, SEIS, further and additional information and any representations made.

[109]     The Lord Ordinary assumed that all information relating to the AA was substantive information.  It was neither necessary nor appropriate to require all such information to be processed as environmental information.  The Lord Ordinary found that the new information was not capable of constituting additional information.  His proposed solution, that the respondents required a revised AA to be processed as further information, ignored the fact that an AA was an assessment produced by the respondents themselves.  Further information was information which they might require from an applicant concerning the ES.  The Lord Ordinary’s proposed solution was inept.

[110]    In all these circumstances, the Lord Ordinary erred in finding that there had been any irregularity.  There was no basis for his finding that the respondents had ignored the hypothetical further representations that the petitioners would have made.  He erred in holding that the petitioners were a non-statutory consultee.

[111]    The Lord Ordinary erroneously held that determinative information not subject to consultation could not be taken into consideration.  The fact that information was relevant to a decision did not mean that it required to be processed under the EIA Regulations 2000 or that the respondents could not take it into account (R (Jones) v Mansfield District Council [2004] Env LR 21 at para 58 citing R (Champion) v North Norfolk District Council (supra) para 64).  The Lord Ordinary’s interpretation of Article 6 of the EIA Directive conflicted with John Muir Trust v Scottish Ministers [2016] CSIH 61 (at paras 49-50).  There was no requirement to advertise each item of additional information separately.

[112]    The Lord Ordinary failed to give any weight to the petitioners’ involvement in the process.  They were represented on the steering groups.  They engaged directly with the interested parties.  MS was in regular contact with them throughout and passed on to them a wide variety of information.  The petitioners had commented on the applications at an early stage.  Detailed comments were made by the petitioners on 26 March, 1 May and 14 August 2014.

[113]    The AA was a matter for the respondents and they were entitled to consult their in-house advisers at MSS.  They were not obliged to consult the petitioners on such advice.

[114]    If any flaw was found in the process, the court should exercise its discretion not to reduce the decisions (R (Champion) v North Norfolk District Council (supra) at para 54).  The decisions would not have been different in the absence of any procedural defect.  The Lord Ordinary did not justify his finding that the information was “apparently determinative”.

 

The petitioners’ cross-appeal: obligations at common law
[115]    The Lord Ordinary had not ruled on the petitioners’ common law consultation case.  Where statute provided for consultation, the court should be slow to impose additional obligations.  The EIA Regulations 2000 provided for consultation with those having statutory responsibilities.  These Regulations and the Offshore Marine Regulations 2007 provided for consultation with the SNCBs, and for taking the public’s opinion, if deemed appropriate.

 

Ground B1
[116]    While purporting to apply a “Wednesbury” standard of review, the Lord Ordinary had embarked upon an examination of the merits and thereby erred in law.  He had erred in his understanding and treatment of the scientific issues.  The petitioners’ criticisms of the scientific analysis in the AA had been made the subject of a substantial body of productions, including scientific papers and affidavits.  The court did not hear any testimony.  The Lord Ordinary made findings on the basis of opposing affidavits.  He had attempted his own fact-based review of the scientific merits of the AA.

[117]    It was not the role of the court to test ecological and planning judgments.  Assessing the nature, extent and acceptability of the effects of a development was exclusively a task for the decision-maker.  Judicial Review was concerned only with whether the AA had been lawfully carried out (R (Prideaux) v Buckinghamshire CC [2013] Env LR 32 at para 130; R (Hughes) v Carmarthenshire CC [2013] Env LR 17 at para 11; Cairngorms Campaign v Cairngorms National Park Authority 2014 SC 37 at paras 63-64; R (Evans) v Secretary of State for Communities and Local Government [2013] JPL 1027 at para 22; and Application of River Faughan Anglers [2014] NIQB 34 at paras 114-115 and 119-120; Sustainable Shetland v Scottish Ministers 2015 SC 59 at para [25]).  The Lord Ordinary had not addressed any of these cases.  It was not for the court to review the merits of the AA, or to make findings on the validity of scientific methods.

[118]    The relevant standard of review was “Wednesbury” reasonableness (see Wordie Property Co v Secretary of State for Scotland 1984 SLT 345 at 347-8).  This was substantially the same as that of “manifest error of assessment” applied by the CJEU (Smyth v Secretary of State for Communities and Local Government (supra) at paras 78-80).  Evaluative judgments had to be left to the decision-maker.  The court must avoid substituting its own views for those of the decision-maker (R (Mott) v Environment Agency [2016] 1 WLR 4338 at paras 59-74 – 82).  A judge should not engage in a detailed examination of the scientific merits.  Where there was no scientific consensus, a judge was not entitled to substitute his own view for that of the decision-maker.

[119]    The Lord Ordinary fell into error in relation to important parts of the technical scientific evidence.  He did not recognise that the assessment of the significance of an impact on the environment is a fact-finding exercise, requiring the exercise of judgment.  The reference to “no reasonable doubt” under the Waddenzee (supra) test was to a reasonable doubt in the mind of the decision-maker (Evans v Secretary of State for Communities and Local (supra) at paras 22 and 27).  The question was whether the project would not have “lasting adverse effects on the integrity” of the site (Sweetman (supra) at paras 39-40).

[120]    The court was reviewing the discretionary judgments of the statutory decision-maker.  The decision-maker had to weigh the evidence for himself.  This was particularly important where the court had no scientific assessor.  The statute left the discretion to be exercised by a democratically elected and accountable authority.

[121]    The AA was not flawed.  The Lord Ordinary, having elected to undertake a detailed review of the scientific merits, erred in various ways.  Although a full list of errors was detailed in an Appendix, selected illustrations were available.

[122]    The SNCBs’ own use of thresholds made it clear that it would be acceptable to have some negative impacts on what the SPA populations would otherwise be after 25 years.  Following meetings with MS, the SNCBs had concluded that “there was agreement... on the vast majority of the issues...”.  The very few remaining differences resulted from MSS reaching a different conclusion, using the same data but slightly different modelling.  The SNCBs had accepted that choosing the best method and the appropriate level of precaution were not matters for definitive calculation, but for the judgment of the decision-maker.

[123]    The Lord Ordinary embarked upon an examination of thresholds.  He was critical of the application of Option 3.  Both the SNCBs and MSS had agreed that the Band models should be used.  MS had explained why they considered Option 3 to be the most realistic.  Mr Band had confirmed that it did the “right” calculation, while Option 2 was seriously inaccurate for seabirds.  The AA noted that the use of generic, rather than site specific, data made the assessment more robust and precautionary.  The Lord Ordinary found that there was nevertheless an “essential problem” with Option 3, based on a mis-reading of the note from Mr Band dated 4 July 2014.  Mr Band’s note did not conclude that Option 3 was invalid.  The number of birds predicted to collide with turbine blades was based on estimated seabird densities.  Option 2 estimated the collision rate in the absence of any avoidance behaviour.  It then applied the avoidance rate.  While the SNCBs recommended a 98% avoidance rate, MSS had considered that it was appropriate to present the results for Option 3 using 95%.  The AA recorded that it was precautionary in its estimation of effect and because the density estimates did not account for the known attraction of seabirds to survey vessels.

[124]    The text quoted from Mr Band’s Note referred to the development of a correction factor to produce an avoidance rate for use with Option 3.  The Lord Ordinary had misunderstood the text and hence wrongly regarded Option 3 as invalid.

[125]    The AA had turned to the setting of a precautionary level of acceptable change.  Several tools had been used.  The first was a model of a number of effects.  PVA was a type of model that forecast a future population size.  It was run for a 25 year period, assuming no wind farm effects, to estimate the end population.  The outputs could be expressed and interpreted using various means (ABC, ruABC, CPS), but these did not change the outputs themselves.  Various wind farm effects selected by the steering group, upon which the petitioners had been represented, were modelled, with different relative declines in adult survival and productivity rates.  The approaches of ABC and ruABC assumed that the population range forecast was about “as likely as not” to occur in year 26.  This was a judgment made on the assumption that the use of thresholds was appropriate.  The petitioners’ preferred measure was CPS.  Once the estimated wind farm effects became available, they did not match the scenarios modelled in the PVAs.  This made comparison of the PVA outputs with the estimated wind farm effects unclear and open to misinterpretation.  The SNCBs’ interpolation provided changes in annual rates that resulted in an end population below or at the threshold.

[126]    As the SNCBs had explained, the interpretation of the PVA outputs was a matter of evaluative judgment using predictive science.  The issue of how close thresholds should be approached was also a matter for judgment.  The AA explained the reasons for the approach taken by MS; that interpolation allowed for a more meaningful comparison of estimated annual effects.  The AA concluded that “[t]he amount of error contained in the assessment is reduced through its use”.  The SNCBs had suggested that, if either productivity or adult survival rates were above their thresholds, this would be unacceptable, regardless of whether the other annual rate effect was substantially below its threshold.  The SNCBs’ approach risked denying a consent where estimated end population effects did not approach the end population threshold.  Use of extended interpolation reduced the likely error in determining whether or not the estimated end population effect did approach the threshold.

[127]    The Lord Ordinary suggested that interpolation had been used to set thresholds.  Contrary to the Lord Ordinary’s understanding, the end population threshold remained unchanged by the application of scalar.  There were no scalar-derived thresholds.  Scalar allowed a meaningful comparison between estimated effects and acceptable thresholds.  The forecast end populations after 25 years presented in the PVA Model, on which the SNCBs’ interpolation and scalar were based, were used in ABC, ruABC and CPS. 

[128]    The SNCBs had been the first to propose interpolation.  They had previously advised interpolation in the Moray Firth.  The SNCB’s concern with scalar was not concerned with its calculations or its technical merit.  It was that, in allowing a closer comparison of the effects with the population thresholds, scalar allowed the population thresholds to be approached.  The SNCBs recognised that any decision was risk-based and risk was a matter for the respondents’ discretion.  The AA contained sufficient precaution and it was therefore appropriate to use scalar.  In short, the Lord Ordinary failed to understand the purpose of interpolation.  It was for respondents to judge whether it was useful.  The respondents’ judgment was merely one of many on the path to the overall assessment of site integrity. 

[129]    The Lord Ordinary erred in finding that non-breeding season effects ought to have been taken into account.  The SNCBs’ advice had been followed.  It had been that it was not possible to include non-breeding season effects as no appropriate reference population could be identified.  The Lord Ordinary misinterpreted the minute of the escalation meeting and erroneously thought that the AA had contradicted the SNCBs’ advice.

[130]    The Lord Ordinary held that the measure favoured by the petitioners (CPS) was a material factor which the AA was bound to consider.  CPS informed the concluding statements for each SPA population.  Several methods had been used to set and check thresholds.  One of those was CPS.  The petitioners’ real complaint was that the counterfactuals had not been considered in the manner which they wished.  They were not exclusively relied upon because they ignored probability and the precautionary approach.  The SNCBs had advised that they did not have an accepted method to interpret counterfactuals.  The acceptable change identified from the PVA outputs produced by ABC/ruABC had been checked using CPS.  The preference of one measure over another was a matter for evaluative judgment, as the SNCBs recognised.  The Lord Ordinary misunderstood how CPS related to population modelling.  CPS was a measure and not a modelling approach.  The CPS values presented did not contradict the idea that the effects were acceptable.  The form of the CPS values in the AA were consistent with those presented in the petitioners’ “Misleading use of science document”. 

[131]    The Lord Ordinary was wrong to conclude that the MSS AB had not endorsed the methods used by MSS.  The MSS AB had been provided with Prof Green’s critique, the draft AA and other documents which covered scalar, selective use of ruABC, the use of Option 3 and the exclusion of non-breeding impacts.  The AA contained an assessment of cumulative, end-population effects for the relevant species.  CPS, ABC and ruABC were all based on end population forecasts produced from the same data.  CPS relied upon the median value only, whilst ABC and ruABC utilised median and quartile values.  The Lord Ordinary failed to understand that ABC and ruABC were based on the end population sizes, just as CPS was.

[132]    The use of a change in the probability of an outcome, eg ABC, was not unique to MSS or without precedent.  ABC was an example of a method using this general approach.  By limiting the magnitude of change to within the range that is “about as likely as not” to occur, it ensures that the scale of the disturbance is well within the range that can be expected from natural variation.  ABC had been peer reviewed by the MSS AB.  Its use had been agreed with the independent expert consultants (CEH).  The SNCBs recognised the biological rationale for using a change in probability and the appropriateness of using the likelihood scales adopted by ABC.

[133]    The AA had considered the uncertainty around impacts and took a precautionary approach.  The available scientific methods did not make it feasible to quantify all possible sources of uncertainty.  There was no agreement over what measure should be used to describe and assess the uncertainties.  The ruABC approach, which had been recommended by the SNCBs, was used to add precaution to species and sites with limited data.  All results were checked using a range of metrics and the thresholds were not viewed in isolation. 

 

Ground B2
[134]    There was no obligation on the respondents to include the dSPA in the AA as if it had been classified as a SPA.  The changes made between the dSPA and the final pSPA demonstrated why it would have been wrong to oblige respondents to treat a dSPA as if it were a pSPA.  The obligation to review consents, when a new SPA was classified, provided ample protection for the interests protected at that SPA.  The SNCBs had set out the case for an indicative marine SPA.  They had not made a final proposal.  The Lord Ordinary effectively struck down Scottish and UK Government policy on how to prepare and consult upon potential SPAs, without providing a reason for doing so.  The pSPA covered sea areas in which the protected species were not breeding.  The 2007 European Commission guidelines on expanding Natura 2000 sites into marine sectors made it clear that considerable work was required in order to select and classify additional SPAs. 

[135]    At the stage of the consents, there was no reason to assume that the selection guidelines for a SPA had been met.  Given the work that remained to be undertaken, and the need for publication and consultation, the respondents could not prejudge the final location and scope of any eventual SPA, or indeed whether the dSPA would in due course become a pSPA subject to formal consultation.  That approach was fully justified, since the eventual pSPA had not only materially different boundaries, but also materially altered conservation objectives.  It was not for the Lord Ordinary to reach his own conclusion that the dSPA deserved protection.  The respondents’ policy reflected the importance of the distinctive steps taken when a site was proposed and eventually classified (see Sweetman (supra) at paras 22-23).

[136]    The respondents had had regard to the prospect of a new SPA being classified in the relatively near future.  The decision letters had referred to that prospect.  The respondents had not failed to have regard to this as a material factor (R (Morge) v Hampshire County Council [2011] 1 WLR 268 at para 44).  The respondents had been entitled to take the view that it was appropriate simply to note the SNCBs’ work and to warn the interested parties that their consents would be reviewed in the event of a classification of any new SPA. 

[137]    The Lord Ordinary was wrong to disregard Humber Sea Terminal Ltd v Secretary of State for Transport (supra at paras 26-33), to the effect that a failure to classify would need to be shown to be a breach of the Wild Birds Directive.  The Lord Ordinary’s view that it ought to have been regarded as environmental information under the EIA Regulations 2000 was mistaken.  It was not environmental or additional information.

[138]    The process of reviewing consents, in light of newly classified SPAs, properly reflected the purposes of the EU directive.  In so far as it may have gone beyond was required by the Directives, it was entirely sensible (Grüne Liga Sachsen v Freistaat Sachsen (C-399/14) [2016] PTSR 1240).

 

Ground C
[139]    The AA had been prepared with great care in order to provide those reading it with clear reasons on the principal points.  The petitioners were informed readers, well able to understand these points.  The AA included a special appendix that exclusively addressed the concerns of the petitioners.  It contained several other technical appendices providing additional background.  It set out in detail the assessment in respect of the ornithology.  The appendices summarised the areas where advice and conclusions differed as between the SNCBs and MSS.  The reasons given were clear.  In any event, the petitioners had not averred any prejudice caused by the nature or scope of the reasoning in the AA or the consent decisions.

 

Interested Parties
[140]    The interested parties adopted the respondents’ submissions and added some supplementary arguments.

 

INCH CAPE
[141]    The overarching distinction between an EIA and an AA was that an EIA was an assessment, prepared by the applicant, of the effects on the environment generally.  An AA was a site specific assessment prepared by the decision maker.  In terms of Regulation 61 of the Habitats Regulations 2010, there was no obligation on the interested parties to do anything other than to provide any requested information (reg 61(2)).  The respondents might take the opinion of the general public (reg 61(4)), but they had elected not to do so and that decision had not been challenged. 

[142]    The Lord Ordinary’s proposition that, where EU law was involved, the burden lay on a party supporting a procedurally defective decision to satisfy the court that “the outcome would not conceivably have been different”, was not supported by the authorities.  The person challenging the decision required to show prejudice.  The court was entitled to take the view that, on the material provided, the decision would not have been different (R (Champion) v North Norfolk DC (supra) at para 58; cf Berkeley v Secretary of State for the Environment [2001] 2 AC 603).  The petitioners had not stated what it was that they could have told the respondents which they (the respondents) did not already know.

[143]    If the Lord Ordinary was correct that the dSPA was governed by the Wild Birds Directive (art 4.4), that would mean that it would be subject to a more stringent regime than a pSPA, where the decision maker could grant a consent, notwithstanding a negative AA, for reasons of overriding public interest (Commission of the European Communities v France (Poitevin Marshes) (C-96/98) [1999] ECR I-8531 at para 41 and 42).

 

NNG
[144]    The Lord Ordinary had conflated the processes under the Habitats Regulations 1994 and the EIA Regulations 2000.  The respondents had considered the EIA application based upon the environmental information, upon which the petitioners had been consulted.  The decision not to consult the petitioners formally on the AA was in accordance with the legislation and could not be regarded as unreasonable.

[145]    The Lord Ordinary had carried out an assessment of the scientific methodologies based upon his own research and review of scientific papers and affidavits submitted by the parties.  He thus erred by placing himself in the position of the decision maker.  The Lord Ordinary had erred in holding that the respondents had not been entitled to conclude, on the basis of the AA, that the projects in combination would not adversely affect the integrity of the sites.  The Lord Ordinary had erred in his conclusions on scalar, thresholds, non-breeding impacts, population effects and site integrity.

[146]    There was no legal or policy requirement to consider a dSPA in an AA.  The precise boundaries and conservation objectives had not been consulted upon or finalised.  Any eventual SPA would require a review of any consent decisions.

[147]    In the Lord Ordinary’s Opinion on the NNG application, he made a number of findings about the adequacy of the NNG ES and SEIS which had not been advanced by the petitioners.  In doing so, he adopted a role which was not consistent with that of a court.  Whether the information in an ES was sufficient to meet the statutory requirements was a matter of judgment, which the courts were neither expected nor equipped to carry out; subject to challenge only upon the established heads of public law review.  The NNG ES had detailed possible effects on, amongst other things, air quality, geology, water quality, marine mammals, ornithology, fish, shellfish shipping, the military and landscape.  There were detailed ornithological studies, including boat based surveys carried out over two years.  The data had been gathered by experienced and accredited observers using recommended techniques.  The SEIS had addressed the effects of a reduction in the number of turbines and an increase in rotor height.

[148]    A number of appendices in the SEIS had provided details of the methodology.  The effects had been explained and the magnitude of impacts considered.  That magnitude, either alone or in conjunction with the other wind farms, was not judged to be significant.  Option 1 had been used.  Collision, displacement and barrier effects on all seabird species had been assessed as not significant, as had cumulative impacts.  The information used to inform the AA had illustrated the absence of significant effect.  Details of the data had been set out, thus allowing any person to understand and comment upon them.  The petitioners had provided a response to the SEIS, following which the interested parties had met the petitioners to discuss any concerns.  Had the Lord Ordinary properly considered the appendices, he would not have reached what were unfounded conclusions.

[149]    Even if the decisions were flawed, the court should refuse to exercise its discretion to reduce the consents having regard to: the nature and importance of the flaws; the practical effect of any illegality; the conduct of the petitioners; the needs of good administration; the nature of any prejudice and whether a particular remedy was necessary or desirable in the interests of justice.  There was a pressing need to address climate change and an important way to meet the targets was by the development of offshore windfarms.  NNG had spent considerable time and money on preparing the ES and SEIS.  They had taken steps to reduce the potential impact. No purpose would be served by running the applications anew.  The petitioners had been consulted on the ES and SEIS.  They had provided detailed, clear and cogent responses.  They had been represented on several steering groups and engaged directly with the interested parties and the respondents.  They had said that they had had sufficient information in order to undertake their own review.

[150]    The petitioners had failed to show any prejudice.  They had had numerous opportunities to comment on the assessment of impacts.  At every stage the respondents had used the best available scientific methods to assess those impacts.  It was not clear what further input the petitioners would have provided.  Reduction of the consents would be disproportionate.

 

SEAGREEN
[151]    The Lord Ordinary had erred in holding that the respondents had acted in breach of the EIA Regulations 2000 in that they had taken into account the AA as, or as if it was, environmental information and therefore as substantive information.  He ought to have confined himself to asking whether the Information Table material was additional or further information in terms of the Regulations.  If he had intended to place such weight on matters of fact which had not been the subject of debate he ought to have invited further submissions.  It was irrational for the Lord Ordinary to have treated the AA as environmental information.

[152]    The Lord Ordinary erred in holding that the respondents had acted unlawfully in failing to request further information.  He erred in concluding that the technical information relied upon in the AA could be processed as further information.  He had erred in his analysis of the processes required under the EIA and Habitats Directives. 

[153]    The Lord Ordinary erred in holding that ground B.1 had been made out.  His approach had fallen outwith the ambit of the supervisory jurisdiction.  Judicial review of an AA was concerned only with whether it had been lawfully carried out.  The merits were not for the court (R (Hughes) v Carmarthenshire CC (supra at para 11).  The respondents were entitled to have been certain, without that certainty being absolute (R (Champion) v North Norfolk DC (supra) at para 41). 

[154]    When reviewing the respondents’ actions, the standard was “Wednesbury”; being the same as “manifest error of assessment” (Smyth v Secretary of State for Communities and Local Government (supra at paras 78-81)).  A judge considering a review of a scientific topic should not engage in a detailed examination of the merits (R (Mott) v Environment Agency (supra) at paras 63-70, 75-80).  Where there was no scientific consensus and there were differences of view, the court was not entitled to substitute its views for that of the decision maker (Downs v Secretary of State for Environment, Food and Rural Affairs (supra) at paras 48, 49 and 91).

[155]    At the first hearing, the respondents and Seagreen had submitted that it would not be an appropriate exercise of the supervisory jurisdiction to adjudicate upon scientific method.  The Lord Ordinary ought not to have engaged in such an exercise.  The true issue was whether the assessment had been “appropriate”.  The AA had explained in some detail the scientific evaluations which had been carried out, the extent to which the precautionary principle had been adopted and the basis upon which the respondents had been convinced that site integrity would not be adversely affected.  They had been entitled to form a view on what was the best scientific knowledge available.  The methodological criticism of the petitioners amounted to a challenge to the respondents’ function of evaluating scientific information (cf Royal Society for the Protection of Birds v Secretary of State for Environment, Food and Rural Affairs (supra), at paras 31-33).  The court could consider scientific method (ClientEarth v Secretary of State for Environment, Food and Rural Affairs (supra)) provided that the function of the court was kept in mind.

[156]    The reasoning in Basses Corbières (supra) was that a Member State should not gain an advantage from a breach of the Directive.  A breach had to be established (Humber Sea Terminals v Secretary of State for Transport (supra) at para 26).  In the absence of such a breach, there was no legal obligation to treat dSPAs as SPAs.  Seagreen Alpha and Bravo were located some distance (30kms) from the dSPAs.  The Lord Ordinary had not addressed this.

 

Petitioners
[157]    The petitioners accepted that they could only succeed if they demonstrated errors of law (Sustainable Shetland v Scottish Ministers 2014 SLT 806 at paras [23-27]).  The basic parameters of judicial review were set out in Wordie Property Company v Secretary of State for Scotland (supra) (at 347-8) and needed no further elaboration.  Basic irrationality challenges were not confined to the relatively rare example of a “decision which simply defies comprehension”.  They could also include decisions which proceeded upon flawed logic.  Matters of planning weight were for the decision maker alone (R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213, at para (65).  Decision documents should not be subjected to detailed textual analysis and criticism, nor should they be interpreted as if they were statutes or conveyancing documents (Moray Council v Scottish Ministers 2006 SC 691).  A reasons challenge would only succeed if the aggrieved party could satisfy the court that he had been substantially prejudiced.

 

Ground A
[158]    The overriding purpose of the Wild Birds Directive was to arrest the decline in bird populations by imposing (art 2) maintenance duties on Member States.  States required to identify the most suitable territories for migratory birds (arts 4.1 and 4.2) “in order to maximise the contribution of the sites … at the national, biogeographical or European level” (Commission Note on Setting Conservation Objectives for Natura 2000 Sites (23 December 2013)).  Article 4 required Member States to provide special conservation measures.  The key provisions of the EIA Directive were recitals 7, 16, and 17, Articles 2 and 5 and Annex IV, which included, within the information required for the ES, a description of forecasting methods.  These provisions were replicated in the EIA Regulations 2000 (Sch 4 pt 1) which made it clear that the effects to be considered included “any indirect, secondary, cumulative, short, medium and long-term … effects” (Berkeley v Secretary of State for the Environment [2001] 2 AC 603 at 615-616).

[159]    The AA was part and parcel of the decision making process.  The core argument for the petitioners was that the cumulative impacts had been assessed using a “common currency” that was largely created by MS from material which was not available to the public.  Public scrutiny had effectively been by-passed.  In interpreting and applying the Directives, regard had to be had to the principle of effectiveness (R (Edwards) v Environment Agency & others (No.2) [2013] 1 WLR 2914, at para 33 and AG at para 23).  The provisions of national law had to be interpreted in such a way that the purposes of EU law were achieved (Marleasing v La Comercial Internacional de Alimentacion (C-106/89) [1992] 1 CMLR 305).  The respondents’ approach had resulted in the avoidance of the requirements of the EIA Directive.

[160]    On the basis of the ES, and SIES, the impacts on seabirds would have been considered unacceptable.  A contrary conclusion was reached on the basis of replacement material provided primarily by MS which was never subjected to public scrutiny.  This was additional information.  It was not a case of the respondents commissioning internal reports to check or verify an ES, which would not require to be disclosed, but the respondents replacing vital sections of the ES with their own work.  A large number of documents had been withheld from the petitioners.  The petitioners had produced the Information Tables in an attempt to collate the withheld information.

[161]    The Lord Ordinary took into account the continued engagement between MSS and the petitioners.  The reference to access to information under the EIS Regulations was irrelevant.  There was no point in having access after the decisions had been made.

[162]    The Lord Ordinary was correct to conclude that the information used for the AA had been substantive.  He recognised that the relevant environmental information supported both the AA and the EIA.  He correctly rejected the respondents’ argument that, even if there was an obligation to send certain documents to the petitioners, the documents which were not sent were not of any materiality.  The key finding by the Lord Ordinary was that the AA was part of the environmental information which required to be consulted upon.

[163]    The Lord Ordinary was well aware of the differences between the two regimes.  He referred appropriately to the EU Commission Guidance Document.  He correctly recorded that the EIA and AA may run alongside each other or that the AA may form part of the EIA assessment.  In placing weight on what the decision letters actually said, the Lord Ordinary was not undertaking a detailed textual analysis, but paying heed to the clear words of the decisions.  The respondents not only took into account the AA, but relied upon it.  The decisions were not made on the basis of the material and methodologies put before them by any of the applicants, but on environmental information, which the respondents had provided.  The SNCBs’ consultation response confirmed both that MS had developed a common currency, after the submission of the environmental information and supplementary environmental information, and that material from the HRA and the AA had been relied upon in satisfying the duty under the EIA regime.

[164]    The AA contained both a conclusion and information upon which that conclusion was based.  The effect of the Lord Ordinary’s decision was not that there had to be consultation on the conclusion of the AA, but on the information within it.  The Lord Ordinary had not erred in concluding that the petitioners were a non-statutory consultee.  It was accepted that the environmental responsibilities of the petitioners were not statutory.  The EIA Regulations 2000 (regs 8(3) and 11(2)) provided for consultation with “such other persons that are likely to be concerned by the proposed development by reason of their specific environmental responsibilities”.

[165]    The Lord Ordinary was correct to hold that determinative information, which was not subject to information gathering and consultation under Articles 5 and 6 of the EIA Directive, must not be taken into consideration.  He approached the issue of publicity for environmental information correctly.  The petitioners’ challenge was that the information should have been made available for comment, whether it had been advertised or not.

 

Common law consultation: cross appeal Ground 2
[166]    The petitioners had been consulted at the outset.  If such consultation was to occur, it should have been properly undertaken.  It operated together with the statutory schemes.  The consulter must act fairly.  That included telling the consultees enough to enable an intelligent response (R (Edwards) v Environment Agency [2007] Env LR 9 at paras 86-105).  The petitioners could not comment on methodologies which they had not seen.  In so far as they continued to make representations, they were hampered by their lack of knowledge.  The Lord Ordinary properly understood matters of prejudice, remedy and discretion.

 

Ground B1
[167]    The Lord Ordinary had set out the background material and legal tests for a judicial review involving scientific technical and predictive assessments.  None of these were subject to any ground of appeal.  There was only very limited criticism of the Lord Ordinary’s understanding and treatment of the scientific issues.  The criticism of his conclusion, that the AA was flawed, was without merit.  The respondents made no criticism of the Lord Ordinary’s distillation of principles, including that the absence of adverse effects is ascertained where no reasonably scientific doubt remains, applying the best scientific knowledge in the field.  The petitioners’ challenge was not merely to the selection of a preference between two expert views but to whether the decision on adverse effects was one in respect of which no reasonable scientific doubt remained.  Where there were two opposing views (as there were between SNCBs and MSS on some subjects and the petitioners and MSS on others), it was necessary to remove reasonable scientific doubt.  The wrong test had been applied.  There was no finding that the opposing science was wrong.  Whilst the views of SNCBs and the petitioners were not binding, the respondents were not entitled to choose between MSS and the petitioners or the SNCBs where there was disagreement.

[168]    The respondents’ approach of choosing between two rival scientific views failed to address the proper question.  If there was real scientific doubt, it was not for the respondents to adjudicate on which science was correct, but to acknowledge that doubt.  Where the respondents’ own advisers had taken a different view on the science and the petitioners had provided cogent criticisms of the science used, it was not sufficient just to favour the views of in-house advisers, but to find that the views of the SNCBs and the petitioners were so wrong, misguided or flawed, that they could be discounted.  The Lord Ordinary had made critical findings in four respects: (1) the use of scalar; (2) the use of the extended Band model; (3) the failure to take non-breeding effects into account; and (4) the failure to have proper regard to CPS values.  Any one of these would justify quashing the decisions.

[169]    The respondent’s general criticisms were misguided.  First, the Lord Ordinary directed himself correctly (Smyth v Secretary of State for Communities and Local Government [2016] Env LR 7).  At times he may have expressed himself in a tentative way, but that reinforced the submission that he took the correct approach.  Secondly, his references to affidavit evidence were more by way of incorporation of argument rather than making findings of fact per seThirdly, the Lord Ordinary did not act unfairly as between the parties.

[170]    It was appropriate for a court to undertake the task which the Lord Ordinary had performed, otherwise the respondents could not be held to account.  What the Lord Ordinary expressly set out to do was to examine whether the exercise undertaken abided by the rules.  He found that the respondents had failed in four respects.  That did not constitute remaking the decisions.  A similar detailed examination had been undertaken in ClientEarth (No. 2) v SOSEFRA & others [2016] EWHC 2740 (Admin) (at paras 55-94, in particular at paras 74-86).

[171]    The cases relied on by the respondents had been taken out of context.  When considering the scope of review, the right of access to a court was one to challenge both the procedural and substantive legality of the decisions in question (EIA Directive Art 11).  This requirement arose from Article 9 of the Aarhus Convention.  The Aarhus Convention Complaints Committee had indicated that one way of providing a review of substantive legality may be by the court assessing the proportionality of the measures (Decision ACCC/C/2008/33, paras 126 and 127).  As such, the assessment must involve a substantive review of the respondents’ position.  The court should adopt an appropriately intensive level of scrutiny, whilst remaining within the Wednesbury framework (Kennedy v Information Commissioner [2015] AC 455).

[172]    The Lord Ordinary did not hold that Option 3 itself was flawed.  Rather he held that “[MS’s] application of ... option 3 is methodologically flawed”.  He understood that it was not the extended model that was wrong, but its use of it for kittiwake.  This was in alignment with the guidance of the SNCBs.  The SNCBs had agreed that the Band Models should be used, but their advice needed to be set in context.  Their position was that it was not appropriate to use Option 3 in predicting collision figures for the species in question.  The Lord Ordinary was correct on the conclusion of Dr Band that the use of Option 3 was invalid.

[173]    The respondents’ explanation of the use of scalar and thresholds of acceptable change was a narrative that attempted to account for the process by which the second part of the assessment was carried out.  In general terms, this narrative was contrary to the manner in which these had been presented in the AA.  No flaw in the Lord Ordinary’s understanding of ABC and ruABC methods had been identified.  The respondents’ interpretation of interpolation was that it was not to adjust thresholds but the “annual rates of change”.  They did not explain how they arrived at thisIt was not accepted that all interpretation of PVA outputs was a matter of judgment. 

[174]    The Lord Ordinary did not err in his understanding that the end population thresholds were adjusted by the application of scalar.  This was the manner in which scalar was presented in the AA and the statements of the SNCBs and MSS.  The respondents sought to illustrate how scalar could be used to adjust the mortality estimate compared with the ABC derived thresholds.  This was not the way in which scalar had been presented in the AA.  It was accurate to describe scalar as novel.  It had been proposed by the SNCBs.  However, the SNCBs’ advice was in relation to a simple interpolation, not “extended interpolation” or scalar.  The SNCBs’ advice had been to use interpolation to set threshold values between the integers modelled by the CEH, whereas MSS had used an extended interpolation, or scalar method, to combine these thresholds into a single value.

[175]    While it was correct that judgments had to be made where empirical analysis was unable to provide certainty, that had to be read in context.  The empirical analysis had raised issues about reaching a conclusion of “no adverse effect”.  The SNCBs’ judgment was to take precaution by advising that thresholds should not be used as strict limits.  MSS made a decision solely based on the empirical analysis, which was effectively less precautionary.

[176]    The Lord Ordinary was correct to find that non-breeding impacts ought to have been taken into account.  His understanding of the SNCBs’ advice, read as whole, was robust and reinforced by the terms of the minute of the escalation meeting.  The key point made by the SNCBs was that the effects outside of the breeding season could be significant.  Ignoring the issue was not adequate.

[177]    The Lord Ordinary did not misunderstand how CPS related to population modelling.  His complaint was that the selection of CPS and other modelling tools had been made without adequate reasons.  The AA was not based on estimated cumulative impacts on populations across the lifetime of the wind farms.  Having first estimated mortality via Collision Risk Models (CRMs) and displacement modelling, the AA had sought to set a precautionary level of acceptable change.  PVA was carried out and the ABC and ruABC thresholds derived from this.  In the AA, the thresholds were adjusted by scalar and presented as annual percentage reductions in adult survival with “Interpolation between adult survival and productivity applied”.  These thresholds were presented as a “Maximum allowable reduction in annual adult survival rate”.  There was no mention of estimated cumulative impacts on populations across the lifetime of the wind farms.  Rather there was a presentation of “percentage point changes to adult survival rates” to be set against thresholds expressed as “annual percentage reductions in adult survival”.  This consistent presentation of both thresholds and effects throughout the AA, as percentage changes in annual adult survival rates, without any reference to cumulative impact on populations across the lifetime of the wind farm projects, would lead any reasonable reader to conclude that these were the values that were used in the assessment.

[178]    The Lord Ordinary considered that CPS values were a material consideration that should have been taken into account.  The respondents’ assertion that several possible metrics of change existed and that the preference of one over another was ultimately a matter for evaluative judgement was only relevant if all the possible metrics had been regarded as scientifically appropriate.  Even then, the test was not which one was to be preferred, but whether the non-preferred one gave rise to scientific doubt.

[179]    The Lord Ordinary did not mistakenly believe that MSS AB had not endorsed the methods used by MSS.  The AA did not take into account cumulative end population effects.  CPS was an expression of comparative median outcomes at a future date.  ABC (and ruABC) used thresholds determined by uncertainty in the population size of a species, predicted in the absence of any impact from wind turbines.  The approach used by ABC (and ruABC) was not the same as that used by CPS.  Unlike CPS, ABC did not clearly and correctly consider end population effects.

[180]    The Lord Ordinary recognised at several points that, due to the way that the AA had been completed, it was entirely possible that a different decision would be reached if the flaws were removed and all relevant information was considered.

 

Ground B2
[181]    Designation of marine SPAs was very slow.  The draft Departmental Brief for what was now a pSPA was first issued in July 2014 but the base information supporting it was pre 2006.  It was not until October 2016 that it reached the pSPA stage, notwithstanding that it was clear law that the factors affecting designation were environmental, and not economic.

[182]    The Lord Ordinary was correct to conclude that the selection criteria for designation as a SPA had been met.  He did not cut down government policy on consultation on marine sites.  The respondents’ critique was deficient in not dealing with Basses Corbières (supra).  The respondents accepted that the selection criteria had been met.  The Lord Ordinary was entitled to rely on this when applying Basses Corbières.  Changes to the boundaries of the SPA, subsequent to the Lord Ordinary’s decision, were not material.  The respondents had advanced no reason why the site should not be a SPA.  It was for the Lord Ordinary to reach his own conclusion on whether the site deserved protection and to apply Basses Corbières.  The failure to criticise his reasoning, except in relation to Humber Sea Terminal v Secretary of State for Transport (supra), demonstrated a lack of merit.  The Lord Ordinary directed himself expressly to Government policy, which reflected the importance of the distinctive steps in the classification of a site (Sweetman (supra) at paras 22-23). 

[183]    The respondents’ reference to the future prospect of the SPA was inadequate in terms of their duties under the Wild Birds Directive (Sustainable Shetland v Scottish Ministers 2015 SC (UKSC) 51).  This was a clear example of the respondents relying on their own failure to fulfil their obligations under the Wild Birds Directive (Sustainable Shetland (supra) at para [35]). 

[184]    The respondents had not attempted to distinguish Basses Corbières before the Lord Ordinary.  They had not grappled with the Lord Ordinary’s reasoning on why he considered that he should not follow Humber Sea Terminal (supra).  The respondents’ submission, on the obligation to review consents in light of newly classified SPAs, ignored Basses Corbières and other cases.

 

Ground C
[185]    The respondents’ reasons were inadequate, in particular in relation to Grounds B1 and B2.  The competent authority ought to place considerable weight on the opinion of the SNCBs, as the expert statutory agencies with responsibility for oversight of nature conservation (R (Morge) v Hampshire County Council [2011] 1 WLR 268 at para [45].  It was described as a “well-established” principle in R (DLA Delivery Limited) v Lewes DC & Ano [2015] EWHC 2311 (Admin) at para [32].  The same principle should extend to consultation responses from the petitioners in Sustainable Shetland (supra at paragraph 31).  The reasons advanced by the respondents were neither proper, adequate or intelligible.

 

Decision
Ground A
[186]    There is a lack of specification in the pleadings, and in the submissions for the petitioners, on exactly which article of which Directive, and which paragraph of which Regulation, was breached by the respondents and how any such breach arose.  The confusion between the application of Directives and Regulations and their respective effects is, to an extent, present also in the approach of the respondents in the decision-making process.  The muddle finds its way into the Lord Ordinary’s reasoning.  It is perhaps not helped by the general references in some of the Regulations, which are said to implement the Directives, to there being a requirement to comply with the Directives (eg Habitats Regulations 1994, reg 3).

[187]    It is important, however, to note that it was not suggested that there had been any failure on the part of either the Scottish or the United Kingdom Governments properly to implement the EIA, Habitats or Wild Birds Directives when transposing them into domestic legislation.  Where an underlying Directive has been properly implemented in national law, there is no scope for giving it direct effect, especially where that would involve circumventing the plain terms of the implementing legislation (Salt International v Scottish Ministers 2016 SLT 82, LJC (Carloway), delivering the Opinion of the Court, at para [43], following Felicitas Rickmers-Linie KG v Finanzamt für Verkehrsteuern [1982] 3 CMLR 447, AG (Slynn) at 455, judgment at paras [24]-[26]; Marks and Spencer v Customs and Excise Commissioners [2003] QB 866 at para 29).

[188]    The principal issue for this court on this ground is therefore whether there has been a breach of the procedural requirements in the EIA Regulations 2000 or the Marine Works Regulations 2007, which transpose the EIA Directive, or in the Habitats Regulations 1994 or 2010, which transpose the Habitats and Wild Birds Directives.  The two sets of Regulations involve different procedures and considerations.  They are not, however, in any way ambiguous or uncertain in their terms.  They do not require the court to study the underlying Directives in order to interpret their terms.

[189]    It is convenient to look first at the Habitats Regulations 1994 and 2010 since they establish (1994 reg 48; 2010 reg 61) what has been described as a jurisdictional hurdle, whereby the respondents can agree to a plan or project only having ascertained that it will not adversely affect the integrity of the relevant sites.  There would be little point in the respondents proceeding to a decision under the EIA and Marine Works Regulations where there was a negative appropriate assessment (AA) or none at all.  However, this is not a case where the respondents determined not to carry out an AA (cf R (Champion) v North Norfolk District Council [2015] 1 WLR 3710).  Quite the contrary, they did carry out such an AA and it was in positive terms.

[190]    An AA is not concerned with the general effect of a project on the environment, but on its specific impact on the protected site.  It is an assessment carried out by the respondents in the manner which they deem appropriate; even if a high standard of investigation may be required (R (Chapman) (supra), Lord Carnwath at para 41).  There is no requirement for consultation.  The respondents may seek public opinion, but there is no statutory obligation to do so.  The decision not to consult formally with the public is not challenged.  It was justified because of the ongoing EIA procedure, which involved public notification and participation.  There was no procedural defect in the respondents’ AA process.

[191]    The next question is whether any of the EIA Regulations 2000 or Marine Works Regulations 2007 were breached.  These Regulations set out a statutory code designed to permit the public access to certain environmental information concerning a project and to allow the public to respond to it in advance of any decision by the respondents.  There was a request for, and the provision of, a scoping opinion from the respondents in advance of the applications.  The applications were made in late 2012 and September 2013.  Each was, as required, accompanied by an environmental statement (ES).  In each case the ES was very substantial indeed.  It provided the reader with a mass of information on a wide range of environmental issues.  Each was, as required, available for public inspection.  It is not suggested now that there was any defect in compliance with the notification requirements regarding publication of the application, the existence of the ES and the procedures for the making of representations.

[192]    The obligations, under the Regulations, to notify the public of any other information are clear.  They are, first, to advise the public that further information has been received.  Further information is defined, and confined, to information requested from, and supplied by, the applicant.  There was such information and the appropriate notification was given.  There is no scope for deconstructing the Regulations in the manner suggested by the petitioners and the Lord Ordinary whereby, if the respondents obtained, or already had, information not specifically advertised, they then had to supply it to the interested parties and request it back from them as further information.  That would be to circumvent the clear terms of the Regulations which, as had already been observed, are not said to have failed to implement the EIA Directive effectively.  In particular, it is not a requirement that persons, including the respondents, the interested parties or any objectors should look beyond the Regulations to ascertain the legal position, where the Regulations purport to implement the Directives and there is no dispute that they have done so.

[193]    The only other information which required to be publicised in terms of the Regulations was additional information.  This is defined, and confined (reg 2(1)), to substantive information relating to the ES, which is “provided by the applicant or a consultative body to the [respondents]”.  The respondents are obliged, on the first occasion only, to publish a notice that additional information has been received and will be placed on the planning register.  Such a notice was published.  Additional information, which took the form of responses from SNH and the SNCBs initially on 7 March 2014, was duly processed and made available for public inspection and comment.  Later advice from the SNCBs was provided on, for example, 17 April.  It was also made available.

[194]    The Regulations are intended to provide for the effective publication of environmental information and for public participation in the EIA process.  The extent of such provision must, however, be tempered with a degree of realism.  It should not create an endless process of notification of, and consultation on, every matter which is, or becomes, available to the decision-maker prior to the decision.  The process is to inform the public of the application, and its perceived environmental impact, and the responses from defined statutory consultative bodies (additional information).  The public then have an opportunity to comment on these matters and, no doubt, to raise any concerns about other issues which they perceive to arise.  That process was fully complied with here.  The petitioners had every opportunity to study and analyse the applications the ESs, the SEISs and the further and additional information.  They had a full opportunity to make such comments as they wished upon that material.  They took advantage of that opportunity.  They were not confined to reacting to the material publicised.  They could present their own submission based upon their own knowledge, experience or empirical findings, research and analysis.  In all these circumstances, there was no breach of the Regulations.

[195]    At the point of decision-making, the respondents are required (reg 4(2)) not only to be satisfied that the required procedural steps have been taken but also to have taken into consideration “environmental information”.  That term is defined as meaning the ES, SEIS, further and additional information and any representations made by a consultative body or any other person about the environmental impact.  There is no requirement to publicise, or consult upon, information from other persons; no doubt because that would introduce an elaborate and potentially endless ping-pong type procedure.

[196]    Furthermore, the respondents are not confined to deciding the application solely on the basis of the applications and responses.  There may be other considerations, unconnected to the desires or views of either applicants or objectors which the respondents wish to consider.  Most important for this case, and contrary to the central reasoning of the Lord Ordinary, there is no requirement for the respondents to seek comment on their own internal musings, or those of their departments, including MSS and MS-LOT, or consultants, in the decision-making process.  Were it to be otherwise, the system of consultation and participation would be radically different from that in the Regulations.  It would be tantamount to the introduction of a separate layer of publicity and response based upon a draft, setting out the respondents’ proposed decision and the reasons for it, before ultimately being able to make the decision itself, perhaps following a complete reconsideration and re-analysis of all the material which has gone before.  That type of elaboration is not what the Regulations require and, quantum valeat, not what the Directives dictate. 

[197]    For completeness, consultation at common law was not required.  The petitioners are not statutory consultees under the EIA Regulations 2000.  They are not persons with “specific environmental responsibilities”.  They are a private organisation with certain agreed purposes or objectives outwith the public law domain.  The petitioners were statutorily entitled to be notified of the application, the ES, the SEIS and both further additional information but, beyond that, there was no legal obligation under the EIA Regulations 2000 to communicate with them further.  The fact that the respondents did continue to do so did not impose an additional burden on them to do more than they did.

[198]    The petitioners were persons likely to have an interest in the projects and were thus a consultation body in terms of the Marine Works Regulations 2007.  They were entitled, as such, to have the application, the ES, further information and a letter advising them how to make representations.  This was all done.  Where there is a statutory right to consultation and the extent of that right is defined, there is no parallel right of consultation at common law.

[199]    In R (Champion) v North Norfolk District Council [2015] 1 WLR 3710, Lord Carnwath re-iterated (at para 54) the general rule that, where a defect has been found in the procedure leading up to a grant of a particular consent, it is still necessary to consider what the consequences of that defect might be.  The court retained a discretion if the challenger has in practice been able to enjoy the rights conferred by the legislation.  Following Gemeinde Altrip v Land Rheinland-Pfalz (C-72/12) [2014] PTSR 311 (at para 45), Lord Carnwath took note of the principle of effectiveness; that national law should not make it impossible or excessively difficult to exercise rights conferred by EU law.  He quoted the CJEU’s view in Gemeinde Altrip (at 53) that, “without … making the burden of proof fall on the [challenger], but relying … on the evidence provided by the developer or the competent authority and … on the case file documents” the court could reach the view that the decision would not have been different had the defect not been present.  Lord Carnwath considered (at para 58) that there was nothing inconsistent between Gemeinde Altrip and Walton v Scottish Minister 2013 SC (UKSC) 67.  It was then open to the court to hold, on the information provided to it, that the decision would have been no different.  In making that assessment, the court ought to take into account the seriousness of the defect and “the extent to which it has deprived the public … of guarantees designed to allow access to information and participation in decision-making in accordance with the objectives of the … Directive”.

[200]    The Lord Ordinary’s focus on the EIA Directive, rather than the EIA and Marine Works Regulations, was an error.  His conclusion, based on the Directive, that, if the respondents relied upon any information which had not been consulted upon, they would act ultra vires was also erroneous.  For the reasons already given, the information which requires to be put in the public domain is defined by the implementing Regulations.  In the absence of a challenge to the Regulations, their plain terms govern the vires of the respondents’ actions.

[201]    In any event, it is clear that the petitioners were given every opportunity to comment upon the application, the ES, the further and additional information and the consultation responses from the SNCBs.  They took those opportunities in objecting to the development and engaging in the process of analysing the available data.  So far as can be ascertained, the views of the petitioners were not only expressed directly to the respondents, they were in many respects reflected in those advanced by the SNCBs.  Their views and those of the SNCBs were taken into account by the respondents.  In so far as the petitioners’ views differed from those of the SNCBs, to the effect that no thresholds should be set, they were rejected for the reasons set out in the decision letters.

[202]    The petitioners were unable to provide any specification of any matter which they could have, but did not, advance in response to the material available and which might have caused the respondents to reach a different decision.  No doubt, there is no onus on them to do so but, following the dictum in R (Champion) v North Norfolk District Council (supra) the court would be bound to hold that, even if there had been a procedural defect, on the information provided, the decisions would have been no different had that defect not existed.

 

Ground B.1
[203]    The standard of review which the Court should apply when assessing the legality of an AA is that of “manifest error of assessment” (Commission of the European Communities v United Kingdom (C-508/03) [2007] Env LR 1 at paras 91 and 92).  This is no different from the conventional test for judicial review set out in Wordie Property Co v Secretary of State for Scotland 1984 SLT 345; that is to say if the respondents have improperly exercised the discretion confided in them and, in particular (LP (Emslie) at 347-8) if the decision:

“… is based upon a material error of law going to the root of the question for determination … if the [respondents have] taken into account irrelevant considerations or … failed to take account of relevant and material considerations … [W]here it is one for which a factual basis is required, there is no proper basis in fact to support it … [or] if it … is so unreasonable that no reasonable [minister] could have reached… it”.

 

This equates to the test applied in England and Wales (Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 followed recently in Smyth v Secretary of State for Communities and Local Government [2016] Env LR 7 (p129), Sales LJ at 80, citing R (Evans) v Secretary of State for Communities and Local Government [2013] JPL 1027 at paras 32-43).  The manifest error must be one detectable by the court and not, at least in the absence of expert advice, an ornithologist or a scientist.

[204]    Sometimes, of necessity, the court will have to grapple with difficult scientific concepts.  Where that is required, the approach in England & Wales is to require the public authority to provide a sufficient account of the facts, and how the relevant science relates to them, to enable the court to consider whether the decision involves an error of law or an abuse of discretion (R (Mott) v Environmental Agency [2016] 1 WLR 4338, Beatson LJ at para 64 following Kennecott Copper Corpn v Environmental Protection Agency (1972) 462 F 2d 846, Judge Leventhal at 849).  That is entirely reasonable.  However, it is not the function of the court, in a judicial review, to decide between the differing views of experts in a technical area.  “An analysis of apparently competent expert scientific opinion [is] not … a proper subject of judicial review” (ibid at para 72 quoting from R (British Union for the Abolition of Vivisection v Secretary of State for the Home Department [2008] EWCA Civ 417, May LJ at para 54).  Furthermore, “if … the court should be very slow to impugn decisions of fact made by an expert and experienced decision-maker, it must surely be even slower to impugn his educated prophesies and predictions for the future” (ibid at para 78 quoting from R v Director General of Telecommunications (ex p Cellcom) [1999] ECC 314, Lightman J at para 26).  Where “there is no scientific consensus and there are differences of view, a judge is ‘not entitled to substitute his own view for that of the [decision-maker], and would be bound to conclude that there was no’, in EU terms, ‘manifest error’ or, in common law terms, Wednesbury unreasonableness in the decision maker’s approach” (ibid at para 81 quoting from R (Downs) v Secretary of State for the Environment, Food and Rural Affairs [2010] Env LR 7, Sullivan LJ at para 91).

[205]    In this litigation there are two material decisions.  First, there is the conclusion of the AA carried out by the respondents that the wind farms will not adversely affect the integrity of the sites.  Secondly, there are the consents themselves which, whilst covering much wider considerations, reach the same conclusions as the AA on the ornithological issues to the effect that there are no outstanding concerns about the impact on birds.  The petitioners make many substantive criticisms of the reasoning of the AA, yet they seek no order to reduce it.  The effect of the failure to seek reduction of the AA is that it must stand as valid.  Thus, even if the petitioners’ contention, that a flawed AA means a flawed consent, were correct (which is highly dubious), reducing the consents would leave the AA intact.  The jurisdictional hurdle would remain surpassed.

[206]    The Lord Ordinary clearly spent an extraordinary amount of time and effort analysing the scientific methodology.  He must have spent weeks, if not months, trying to get to grips with the morass of scientific material, including data and journal articles.  He did this, having expressly acknowledged the limits of judicial review.  The rationale behind his thinking must have been his expression of what he regarded as a legal test; that being whether the AA’s conclusions were capable of removing all reasonable doubt.  Yet the existence, or otherwise, of a reasonable doubt is primarily a matter of fact for the decision-maker (and not a judicial reviewer) to determine.

[207]    As it was neatly put in R (Prideaux) v Buckinghamshire County Council [2013] Env LR 32 (p 734) (Lindblom J at para 130):

“It is not the role of the court to test the ecological and planning judgments made in the course of the ... decision-making process.  Assessing the nature, extent and acceptability of the effects that a development will have on the environment is always – apart from the limited scope for review on public law grounds – exclusively a task for the planning decision-maker.”

 

Parliament has determined that the decision-maker in this area is not to be a judge or sheriff, hearing testimony from experts in the formal setting of a court room.  The decision is not to be a judicial one based upon an impartial assessment of testimony.  It is not one following a public inquiry in which a specialist reporter could apply his scientific or other technical expertise to the problem.  Such an inquiry might have been instructed by the respondents (Electricity Act 1989, Sch 8 para 3(3), but the decision was not to do so.  That decision is not challenged.  The decision is one made by the respondents, who operate in a political context, albeit constrained by the environmental regulatory regime.  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 respondents’ decisions 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.

[208]    The approach taken in England in R (ClientEarth) v Secretary for the Environment, Food and Rural Affairs [2017] Env LR 16 and its predecessors has been noted, but the error identified there, in relation to the time for compliance the terms of the relevant Directive, appears to have been one readily identifiable by a court of law and did not require any intricate scientific analysis of fact.

[209]    The respondents had before them the ESs, which concluded that there would be no significant impact on the sites.  They had the petitioners’ objections which confirmed that the interested parties’ methodologies were appropriate, but challenged the underlying data (without presenting any of their own).  They had the negative “key” advice of the SNCBs dated 7 March 2014 about cumulative impacts on the kittiwakes on both SPAs and on the gannets and puffins on the Forth Islands.  This advice was tempered in that it pointed to the uncertainty in the population modelling because it was limited to collisions and the breeding season.  That was the basis upon which the advice, not to set the limits on additional impacts close to the thresholds, was tendered.  There was a particular concern about a lack of data on non-breeding kittiwake collisions.  The SNCBs were content with the ruABC method being applied to the population viability analyses (PVAs) from, amongst other places, the Centre for Energy and Hydrology (CEH).  They had also used scalar in part.  The fact that scalar was used was intimated to the petitioners.  It is clear from the draft advice given by MSS Ornithology to MS-LOT on 10 April 2014 (supra) critiquing the SNCBs’ advice of 7 March.  This draft advice was intimated to the petitioners but “overlooked” by them. They raised no objection to it at the material time.

[210]    The respondents’ ornithology experts (MSS Ornithology), in their critique, advised a wider use of scalar to eliminate anomalies.  They endorsed the ruABC methodology.  They noted the receipt of new PVA outputs.  It was MSS Ornithology who advised on the use of the extended Band model Option 3 to estimate collision rates and the adoption of the precautionary 95% avoidance rate.  Although MSS Ornithology reached the same conclusions as the SNCBs, because adverse impact could not be ruled out, what they suggested was that further work be carried out.  This was long after the response period for representations had expired.  It might reasonably be assumed that the petitioners would have been in agreement with the SNCBs and MSS Ornithology and would have had little, if anything, to add.  They do not appear to have added anything having received copies of the SNCBs’ and MSS Ornithology’s advice in March and April 2014.  What happened after this is significant. 

[211]    MS-LOT sought advice from their sister departments on a scheme involving a substantially reduced number of turbines (from 488 to 335), especially in the Inch Cape and NNG applications, and alterations to the technical specifications.  The advice from the SNCBs remained broadly the same (apart from Seagreen) and this prompted the escalation meeting in June between MSS, MS-LOT and the SNCBs, which identified three areas of disagreement: flight height data, displacement rates and certain aspects of the threshold setting methodology.  However, a further meeting in July saw agreement “on the vast majority of the issues raised”.  The SNCBs recorded that the level of precaution was not something which could be precisely determined.  Rather, judgments had to be made.  The thresholds were indicative and not absolute.  The difference between the SNCBs and MSS was the use of a “slightly different modelling approach”, but using the same data.  Judgments again had to be made in circumstances where empirical data could not provide certainty. 

[212]    In short, although the SNCBs were not departing from their general view on impact, they recognised the force of MSS’s contention that, even if thresholds selected by the SNCBs were accurate predictions of risks, sufficient additional “elements of a precautionary nature” had been built into the system.  They appeared to accept this; hence their advice that any consents should be monitored effectively.

[213]    At this point, although it may be possible to criticise MSS’s scientific methodology, the level of disagreement with the SNCBs was minimal.  Although the petitioners had said that they would carry out their own counterfactual modelling, they did not produce any.  All they did was send in Prof Green’s paper, attacking ABC, ruABC and Option 3.

[214]    The short point here is that the respondents’ advisers (MS-LOT) were not obliged to depart from the scientific analysis which their own experts (MSS, including MSS Ornithology) had been applying, to a large extent in agreement with the SNCBs, for many months, in favour of an alternative approach advanced on behalf of the petitioners.  They were entitled to make the scientific judgment that the methods which they had adopted were the best available in the circumstances.  In the AA, MS-LOT applied the correct precautionary principle that a development could only be authorised if no reasonable scientific doubt remained that the integrity of the sites would not be adversely affected.  Due regard was paid to the SNCBs’ advice.  The AA expressly noted the differences between the SNCBs and MSS on the modelling, but MS-LOT preferred Option 3.  That was an evaluative judgment which they were, as experts in the field, entitled to make in concluding, as a matter of fact, that no reasonable scientific doubt remained.  There is no sound basis in law for reviewing that finding.

[215]    It may be that the Lord Ordinary’s whole view of the AA, that it could be no more than a “structured haruspication”, gives a clue to why he reached the decision which he did.  If the task of MS-LOT was akin to the interpretation of entrails, it is hardly surprising that it could not be seen to eliminate reasonable doubt on the impact on site integrity.  However, this is not a fair or accurate description of the AA, which was carried out on the advice of expert scientists and not soothsayers.

[216]    Without seeking to engage in the same fact finding task as the Lord Ordinary, each of the four areas which he identified as containing errors of fact or methodology involved matters of evaluative judgment upon which there were competing scientific views.  The Lord Ordinary’s approach that, if such a view opposed the projects, it required to be rebutted by the respondents in order to eliminate doubt, may have some force, but the acceptance by the respondents of a contrary view, if appropriately reasoned, would constitute such a rebuttal.

[217]    On scalar, the advice from the SNCBs was that it should be used, albeit to a limited extent.  MSS Ornithology, who were the respondents’ own specialist officials, said that it ought to be used in a broader context.  This was accepted by MS-LOT and, ultimately, the respondents.  The Lord Ordinary criticised its use on the basis that it had not been consulted upon, but it clearly had.  He was not entitled to reject it as novel or not peer-reviewed when neither was in fact the case.  As has been explained, and not contradicted, the method had been used elsewhere, both as a generality and specifically in relation to the Moray Firth.  MSS AB had provided peer review, even if it may not have been undertaken in an independent manner acceptable for publication in a scientific journal.

[218]    The Lord Ordinary’s conclusion that MSS had misunderstood the advice of Mr Band in his note of 4 July 2014 was not one that he was entitled to reach upon a consideration of the written material alone.  The note does not provide a basis for a conclusion that Mr Band had advised against the use of Option 3.  If anything, it appears to suggest only that it may require some modification.  The reasons, which Mr Band had expressed for not using Option 2 (ie that it assumed an even flight height distribution etc), remained valid and unchallenged.  In any event, whatever the Lord Ordinary’s view was, the respondents’ scientists (MSS Ornithology) had recommended Option 3.

[219]    The Lord Ordinary considered that non-breeding effects ought to have been taken into account.  He did so by rejecting the explanations provided; notably that this was the advice of the SNCBs.  There was no basis for this approach which, once more, attempts to analyse scientific fact or methodology which is outwith the scope of judicial review, at least in the absence of manifest error.

[220]    Similar considerations apply to the use of CPS values in the calculation of end populations.  There was no basis in the material presented to the Lord Ordinary for his conclusion that they had been ignored.  Once more, a reason had been given by the SNCBs as to their limitations.

[221]    In each of the four areas identified by the Lord Ordinary, he trespassed into the province of the fact finder.  In each area, the judgments to be taken were of an evaluative scientific nature.  Even if there may be errors identified upon a close scrutiny of the data or methodology, none could be described as “manifest”.

 

Ground B2
[222]    Commission v France
(Basses Corbières) (C-374/98) [2000] ECR I-10799 is authority for the proposition that obligations, under certain articles of the Habitats Directive, do not apply if the relevant site has not been formally classified under the Directive, even although it should have been.  The French Government were not able to plead their own failure to classify the site in order to permit the application of the overriding public interest permitted in Article 4 of the Habitats Directive, as distinct from that in Article 4.1 of the old Wild Birds Directive, which required special conservation measures without that exception.  This was without prejudice to the earlier decision in Commission v Spain (Santoña Marshes) (C-355/90) [1993] ECR I-04221 that the old Wild Birds Directive ought to apply to areas which had not, but should have been, classified as SPAs.  The phrase “should have been classified” was interpreted (Ouseley J at para 26) in Humber Sea Terminal v Secretary of State for Transport [2006] Env LR 4 as a reference to a site where the failure to classify had involved a breach of the Directives’ obligations.  In both Basses Corbières and Santoña Marshes, a breach had either been admitted or established by the ECJ.  Such a breach required to have occurred before the protections offered in a SPA could be applied to a site not so classified (ibid para 33).

[223]    The court agrees with this analysis.  If it were otherwise, these protections would arise not on classification, but as soon as a person could demonstrate, to the satisfaction of a court, that a particular site ought to be so classified.  That would be to bypass the terms of the Habitats Regulations 1994 and 2010 and the Offshore Marine Regulations 2007, which detail the process for classification of SPAs, including notices of proposal, accompanying statements, consultation with the relevant nature conservation bodies, the possible taking of public opinion and, ultimately, a decision not by a court but the respondents.  For there to be a SPA, there require to be defined boundaries and conservation objectives, all duly approved by the respondents.  It follows from all of this, if it were not obvious, that it is not appropriate to treat a site as a SPA, or a pSPA, if it is in fact not a SPA or pSPA; provided that there has been no breach of the Regulations.

[224]    The respondents have been progressing with the classification of certain areas as SPAs, including the Forth and Tay Bay Complex.  The Lord Ordinary was correct to hold that he was not entitled to find that the respondents had breached any obligation to classify the dSPA as a pSPA or SPA and that the principle in Basses Corbières did not apply.  However, he erred in nevertheless considering, as an alternative, that the absence of a breach of what he described as a treaty obligation was irrelevant.

[225]    The decision letters noted the fact that the Forth and Tay Bay Complex was in the form of a dSPA and that it might progress to a SPA in due course.  They observed that if that occurred, a further AA would be required if likely significant effects on the SPA were identified.  This was all entirely appropriate in the circumstances and the Lord Ordinary erred in holding otherwise.

 

Ground C
[226]    In Wordie Property Co v Secretary of State for Scotland 1984 SLT 345, the Lord President (Emslie) explained (p 348) that a decision, carrying with it an obligation to give reasons, “must, in short, leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it.”  Fairness requires that the reasons are sufficient to enable those interested to understand the key factors in the decision making process so that they may, if so advised, challenge their correctness.  In this context, what should be looked for are reasons for the decisions to grant the consents (and in that context the Appropriate Assessment) and not reasons for the reasons.

[227]    This ground is based on a premise which is only partially accurate.  The SNCBs tendered their advice, much of which was accepted by the respondents.  It was analysed by the respondents’ officials, namely MSS Ornithology, in considerable detail in their draft advice of 10 March 2014.  That advice criticised, for example, the SNCBs’ methodology relative to the setting of thresholds.  It recommended a wider use of scalar and Band model Option 3.  The consequence of MSS Ornithology’s advice was a reduction in turbine numbers and an alteration in certain technical specifications of the turbines; notably their heights.  Further advice from the SNCBs resulted in the escalation meeting of 27 June at which there were only three areas of potential divergence: Option 3, displacement and threshold proximity.  A further meeting was followed by the SNCBs’ conciliatory letter of 11 July.

[228]    A decision maker ought to afford the views of a statutory consultation body considerable weight (R (Morge) v Hampshire County Council [2011] 1 WLR 268, Lady Hale at para 45.  He is, nevertheless, not bound by those views (Sustainable Shetland v Scottish Ministers 2015 SLT 95, Lord Carnwath at para 31).  The obligation is to take them into account and, where the ultimate decision does not follow the advice, to give clear and cogent reasons for the advice not being followed (see eg R (Akester) v Department for Environment, Food and Rural Affairs [2010] Env LR 33 Owen J at para 112).  That was done in this case.

[229]    The AA carried out by MS-LOT and MSS concluded that the projects would not affect the integrity of the sites.  The reasons for that in relation to the SNCBs’ advice were set out in clear terms, notably the alterations in the project which had traced the progress from disagreement towards what became almost a complete consensus.  They addressed specifically the different methods used by the SNCBs and MSS to set thresholds, but noted that MSS had provided “good reasons” for preferring their method.  The ultimate conclusion was based on MSS advice that the estimated impact would be acceptable given the selected thresholds.  The petitioners’ concerns about the use of ABC were expressly mentioned, but rejected because MSS AB had advised that the methods used and scientific evidence applied were the “best available”.  Although the petitioners may disagree with the reasoning, and seek to find flaws in it, it is clear.  It leaves neither the informed reader nor the court in any doubt about the reasons and the relevant considerations behind them.

[230]    The decision letters are detailed documents covering a wide variety of issues.  Again, however, the reasons for reaching the decisions are clearly set out both in a specific summary form and in the preceding more expansive format.  Due process had been carried out.  The ESs had judged the likely impact to be acceptable.  The projects would contribute to local or national economic development priorities and the respondents’ energy policies.  On the basis of the AA, the respondents had determined “to the appropriate level of scientific certainty” that the projects would not adversely affect site integrity in view of their conservation objections.  There was specific reasoning on seabirds, notably concerning the escalation meeting and its background, followed by a note of the fact that agreement had been reached between the respondents’ advisers and the SNCBs on “the vast majority of issues”.  The conciliatory letter’s terms were specifically recorded, notably the acceptance that judgments had to be made where empirical analysis could not provide certainty.  The respondents stated that, having taken into account the relevant information from the applicants, the consultative bodies’ responses, the AA and both the mitigation measures and conditions imposed, there were no outstanding concerns requiring consent to be withheld.  This is again sufficient to meet the legal test of adequacy.

 

NNG Opinion
[231]    The Lord Ordinary’s conclusion that the respondents had taken the AA into account as environmental information was a necessary pre-cursor to his finding that the respondents had been in breach of the EIA Regulations 2000 by failing to consult on that information.  As already described, the Lord Ordinary fell into error in conflating the AA and the EIA procedures.  The Habitats Regulations 1994 and 2010 establish a prior jurisdictional hurdle, in that a consent may not be granted if the project would adversely affect the integrity of a relevant site.  This is distinct from the EIA procedure, which provides a statutory code designed to ensure that the public has access to environmental information and to allow them to respond to any project applications.  The two procedures are separate and distinct, even if they may run in parallel to and coincide at certain points.

[232]    Given that there is no requirement for the consent decision to be based solely on the material in the application and responses, there is no breach of the EIA Regulations 2000.  The Regulations do not require the respondents to seek public comment on their own musings.  There is then no need to determine whether the respondents did or did not take into account the AA or the information contained within it in the EIA process.  The omission of any reference to the AA being considered as environmental information in the NNG decision letter is of no moment.  In any event, the Lord Ordinary’s analysis of whether the SEIS was deficient or not was not within the proper ambit of a court of review.

 

Conclusion
[233]    For all these reasons, the reclaiming motions will be allowed and the cross appeals refused.  The Lord Ordinary’s interlocutors of 18 July 2016 will be recalled.  In respect of Ground A: the petitioners’ first plea-in-law will be repelled; the third plea-in-law for the interested party Inch Cape, the third and seventh pleas-in-law for the interested parties Seagreen Alpha and Bravo, and the second and sixth pleas-in-law for the interested party NNG will be sustained.  In respect of Ground B.1: the petitioners’ second and third pleas-in-law will be repelled; the third and fourth pleas-in-law for the respondents, the fourth and fifth pleas-in-law for the interested parties Inch Cape and Seagreen Alpha and Bravo, and the third and fourth pleas-in-law for the interested party NNG will be sustained.  There are no pleas-in-law specific to Ground B.2.  In respect of Ground C: the petitioners’ fourth plea-in-law will be repelled; the sixth plea-in-law for the interested parties Inch Cape and Seagreen Alpha and Bravo, and the fifth plea-in-law for the interested party NNG will be sustained.  The prayers of the petitions will be refused.

 

 



[1] this is the interpretation of omens by inspecting the entrails of sacrificial animals in Roman times.