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PETITION OF THE ROYAL SOCIETY FOR THE PROTECTION OF BIRDS FOR JUDICIAL REVIEW


 

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 103

P28/15

OPINION OF LORD STEWART

in the Petition of

THE ROYAL SOCIETY FOR THE PROTECTION OF BIRDS

Petitioner;

for

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

and Answers for

THE SCOTTISH MINISTERS

Respondents;

and

INCH CAPE OFFSHORE LIMITED

Interested Party

Petitioner: James Findlay advocate, Laura-Anne van der Westhuizen advocate; Campbell & McCartney
Respondents: Mure QC, Ruth Charteris advocate; Scottish Government Legal Directorate
Interested party: Thomson QC; CMS Cameron McKenna
Seagreen Wind Energy Limited: Ailsa Wilson QC, Marcus McKay advocate; Gillespie Macandrew LLP
Neart na Gaoithe Offshore Wind Limited: MacKenzie solicitor advocate; Shepherd & Wedderburn LLP

18 July 2016

[1]        This is a challenge directed at two of the several decisions by the Scottish Ministers which together give, or support authorisation for a marine electricity generating project to be known as the Inch Cape offshore wind farm. The Inch Cape offshore wind farm is proposed to be sited in the approaches to the Tay estuary about fifteen kilometres, at the nearest point, from the Angus coast. The consented proposal is for 110 turbines arrayed in an area of 150 kms2 with a generating capacity of 784 MW. The estimated life of the generating station is 25 years.

[2]        The challenge is brought by way of Petition for judicial review. The petitioner is the Royal Society for Protection of Birds, Scotland [“the RSPB”]. The objects of the RSPB are the conservation of wild birds and their habitats. The RSPB has concerns about the Inch Cape project and three other offshore wind farm projects in the Forth and Tay area. The main concerns relate to the impact on certain regularly occurring migratory wild bird species and their protected habitat populations. The species are, most importantly, Atlantic puffin (fratercula arctica), northern gannet (morus bassanus) and black-legged kittiwake (rissa tridactyla). Impacts on guillemot (uria aalge) and razorbill (alca torda) have also been mentioned.

[3]        The risks to these species arise, to different degrees, from collision, displacement and barrier effects.  “Collision”, that is with wind turbine rotors in motion, equates with mortality.  “Displacement” means the displacement of birds from foraging areas within projected development sites.  “Barrier effects” signifies the avoidance of developments in flight, including on foraging flights to and from breeding colonies.  Displacement and barrier effects may entail extra energy costs and consequences for body mass, adult survival, nest attendance and chick provisioning. The habitats and hosted species of greatest importance for present purposes are Forth Islands (Inchmickery, May, Fidra, the Lamb, Craigleith, Bass, Long Craig) with two kilometre marine extensions, which hosts puffin, gannet, kittiwake, guillemot and razorbill colonies, and Fowlsheugh, a 10 hectare site on the Angus coast south of Stonehaven with a two kilometre marine extension, which hosts kittiwake, guillemot and razorbill colonies.

[4]        Forth Islands and Fowlsheugh are classified as special protection areas [SPAs] for the conservation of the bird species populations mentioned, in terms of the Birds Directive and the Habitats Directive [originally the Birds Directive 79/409/EEC now the Birds Directive 2009/147/EC etc on the conservation of wild birds; the Habitats Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora].  Forth Islands SPA was first classified on 25 April 1990; the site was extended to include Long Craig on 13 February 2004; and the marine extensions took effect on 25 September 2009.  Fowlsheugh SPA was classified on 31 August 1992; and the marine extension took effect on 25 September 2009 [6/40; 6/41]. The habitats are part of the network of “Natura 2000” SPAs and special conservation areas [SCAs] designated as being sites of European importance in terms of the Habitats Directive 92/43/EEC art. 3(1).  The conservation objectives of each of the SPAs, as defined by Scottish Natural Heritage, include “ensuring the long-term maintenance of the population of each qualifying bird species as a viable component of the SPA” [6/4, Appropriate Assessment, 7, § 1c, “Conservation objectives for qualifying species”; 6/37, affidavit of C Nathan].

[5]        In these proceedings the key environmental issue in terms of the applicable legislation is about the effects, on protected site populations, of the Inch Cape project “either alone or in combination with other... projects”.  The other offshore wind farm projects of primary concern are Seagreen Alpha, Seagreen Bravo and Neart na Gaoithe, the latter meaning, according to the developers, “power of the wind” [cf. Neart nan Gleann, “power from the glens”, the motto of the old North of Scotland Hydro Electric Board].  The Seagreen wind farms are proposed to be sited in the approaches to the Tay estuary 25 kilometres from the Angus coast.  The Neart na Gaoithe wind farm is proposed to be sited in the approaches to the Forth estuary about fifteen kilometres east of Fife Ness.  The scale of the projects is illustrated in various ways. Counsel for Neart na Gaoithe states that the 75 turbines now proposed for that project will have the capacity to generate electricity for all the homes in Edinburgh, 325,000 households.  The proposed wind farm combined arrays of 335 turbines generating up to 2.3 GW, all projects [6/4, table 1], would stretch, although not continuously, for a distance of about 45 kilometres south to north.  According to Scottish Natural Heritage the visual impact will be apparent from Dunbar in the south to St Cyrus in the north. The authorisations for those other projects are challenged by the RSPB in separate petitions on similar grounds.  The Scottish Ministers are the respondents to all four petitions. The Inch Cape, Seagreen Alpha and Bravo, and Neart na Gaoithe developers answer the respective petitions as interested parties. There is a location map between pages 4 and 5 of the hard copy Opinion showing the locations of the Fowlsheugh and Forth Islands SPAs, the locations of the Inch Cape, Seagreen Alpha, Seagreen Bravo and Neart na Gaoithe projects and the area covered by and boundaries of the draft Forth & Tay marine special protection area.  A colour PDF of the location map can be found here.   

[6]        I heard oral submissions on behalf of the RSPB, petitioner, the Scottish Ministers [“the ministers”], respondents, and on behalf of the interested parties in this case, Inch Cape, and the interested parties in the other cases, Seagreen, in respect of their two projects Alpha and Bravo, and Neart na Gaoithe.  This happened in a conjoined hearing over eight days from 28 May to 5 June 2015 with further written submissions being received, by agreement, up to 7 July 2015.  The order in which I have just listed the interested parties is not the order in which they made representations at the hearing.  I am treating the petition directed against the Inch Cape project decisions as the lead petition because, at the hearing, parties worked from the Inch Cape pleadings and the Inch Cape decision documents [P28/15, 6/1—6/4]; and that is why I have listed Inch Cape as the first of the interested parties.  I was told that the Inch Cape material is representative.  The pleadings in the Inch Cape case alone amount to 105 pages.  The list of authorities cites 114 legislative instruments, case reports and guidance documents.  I was referred by parties to an additional case report, R (on the application of Champion) v North Norfolk DC [2015] 1 WLR 3710, by email on 22 March 2016.  There was also email correspondence about the case European Commission v Bulgaria (Kaliakra and Belite Skali) (C‑141/14) ECLI:EU:C:2016:8, 14 January 2016, which concluded with the parties’ email of 6 May 2016. There are 192 pages of written argument.  All parties adopted their written notes of argument in oral submissions.  Having made avizandum on the whole submissions, oral and written, I have now decided to grant the petition and to reduce the decisions complained of so that the decisions can be re-made properly. There are separate Opinions in the other cases, also issued today. The result is the same.

 

The applications, the processes and the decisions

[7]        The wind farm projects need three kinds of authorisation, namely a declaration in terms of the Electricity Act 1989 (as amended) section 36A as respects rights of navigation through the project in question; two marine licences in terms of the Marine (Scotland) Act 2010  section 21 etc, for the wind farm itself and for associated transmission works offshore respectively, to permit depositing substances and objects, and constructing works, in the sea; and a consent in terms of the Electricity Act 1989 section 36 for the construction and operation of “a generating station”.

[8]        Inch Cape made two sets of applications for the authorisations with a view to splitting the project at some future date into two entities. The applications were processed and granted as one set on the basis that permission to assign authorisations for all or part of the project can be applied for in future. In relation to each type of authorisation I shall refer to “the application” singular.

 

Electricity Act 1989 s. 36A declarations
[9]        The application as respects navigation rights in terms of the Electricity Act 1989 (as amended) section 36A and the declaration which followed are non-contentious in these proceedings and I shall not mention them again.

 

Marine (Scotland) Act 2010 s. 21 licences and Marine Works EIA Regulations assessment

[10]      The application for marine licences in terms of the Marine (Scotland) Act 2010 section 21, accompanied as it was by Inch Cape’s environmental statement, launched an environmental impact assessment in terms of the Marine Works (Environmental Impact Assessment) Regulations 2007 [“Marine Works EIA Regulations”]. That process in turn and in conjunction with the Electricity Act 1989 section 36 process triggered a habitats regulations appraisal in terms of the Conservation (Natural Habitats etc) Regulations 1994, applicable to the inshore region, and the Offshore Marine Conservation (Natural Habitats etc) Regulations 2007, applicable to the offshore region [“the Habitats Regulations”]. Although the Marine Works EIA Regulations reg. 22 environmental impact consent decision is contentious, it is not the focus of this Opinion. [1]

 

Electricity Act 1989 section 36 consent and Electricity Works EIA Regulations assessment

[11]      The focus of this Opinion is the application for a consent in terms of the Electricity Act 1989 section 36 for the construction and operation of a generating station. That application, accompanied as it was by Inch Cape’s environmental statement—the same environmental statement supports both the Marine Works application and the Electricity Works application— launched an environmental impact assessment in terms of the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2000 as amended by the Electricity Works (Environmental Impact Assessment) (Scotland) Amendment Regulations 2008 [together “the Electricity Works EIA Regulations”].  That process in turn and in conjunction with the Marine Works EIA Regulations process triggered the habitats regulations appraisal in terms of the Habitats Regulations.

[12]      There is a difference between an environmental impact assessment in terms of the Marine Works EIA Regulations and an environmental impact assessment in terms of the Electricity Works EIA Regulations.  In the first case there has to be a substantive environmental impact assessment decision in terms of the Marine Works EIA Regulations reg. 22 and, unless there is such a decision in positive terms, that is an environmental impact assessment consent decision, the ministers cannot grant the marine licences in terms of the Marine (Scotland) Act 2010 section 21.  In the second case the ministers are prohibited from granting the Electricity Act 1989 section 36 consent unless “they have taken into consideration the environmental information” in terms of the Electricity Works EIA Regulations.  Accordingly there is a separate environmental impact consent decision supporting the decision on the Marine (Scotland) Act 2010 section 21 licences application whereas the consent decision on the Electricity Act 1989 section 36 application simply, but crucially, narrates that: “The Scottish Ministers have taken into consideration the environmental information… ” [6/4, 26].

 

Conservation (Natural Habitats etc) Regulations 1994 etc “appropriate assessment”

[13]      As already stated both applications together triggered a habitats regulations appraisal.  “Habitats regulations appraisal” or “HRA” can mean different things.  A full habitats regulations appraisal in the sense in which it is used here, in accordance with widespread administrative guidance and practice, is a five-stage process.  It starts with the issue whether the project is directly connected with or necessary for the management of a European site.  If the project is unconnected or unnecessary, the next stage is to ask whether the project is “likely to have a significant effect” on [susceptible d’affecter] the site—in this case the Forth Islands and Fowlsheugh SPAs among others—either alone or in combination with other plans or projects.  If the answer is “yes” as to significant effects then, at stage three, there has to be an “appropriate assessment” of the implications for the site in view of the site's conservation objectives.  Stage four is the development authorisation stage: the project cannot be approved unless the assessment gives certainty to the decision-maker—a concept discussed below—that the project will not affect the integrity of the site.  At a fifth stage, notwithstanding a negative assessment, the competent authority may on certain conditions agree to a project for imperative reasons of overriding public interest [Conservation (Natural Habitats etc) Regulations 1994 (as amended) regs. 48 and 49;  Offshore Marine Conservation (Natural Habitats etc) Regulations 2007 regs. 25 and 26].  The appraisal in this case did not go to stage five because the assessment at the third stage was favourable, thus opening the way for the ministers to authorise the projects, which they did.  A single, regional “appropriate assessment” was carried out to address the individual effects of the Inch Cape project and the other Forth and Tay projects referred to above and the in-combination effects of the Forth and Tay projects and two other more remote projects, already consented. No further mention needs to be made of the more remote projects.

[14]      The European source legislation is the Habitats Directive 92/43/EEC, art. 6(3), which provides:

“Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.”

In Champion Lord Carnwath pointed out that article 6(3) of the Habitats Directive 92/43/EEC actually makes express mention of only two  formal stages: the first sentence of article 6(3) provides for an “appropriate assessment” and the second sentence makes provision for development authorisation following evaluation of the “appropriate assessment” [R (on the application of Champion) v North Norfolk DC [2015] 1 WLR 3710 at §§ 34—41 per Lord Carnwath with whom the other members of the Supreme Court agreed]. In describing this two-stage process in terms of article 6(3), Lord Carnwath followed the analysis of the Court of Justice in Sweetman [Sweetman v An Bord Pleanála (C-258/11) ECLI:EU:C:2013:220, [2014] PTSR 1092 at §§ 29—31].

[15]      The jurisprudence has implied another stage into the first sentence of article 6(3), using a variety of wording.  Waddenzee refers to “a preliminary assessment” and “a preliminary examination”, being the examination to determine whether an “appropriate assessment” is required.  Confusion arises from the fact that the English-language version of the advocate general’s opinion in Wadenzee refers to the preliminary examination as an “assessment”, to the “appropriate assessment” as an “assessment” and to the initial step in the development authorisation as an “assessment” [Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en Visserij (Waddenzee) (C-127/02) [2004] ECR I-07405, [2005] 2 CMLR 31 at §§ AG66, AG67, AG80, AG102, AG107, AG108, §§ 34, 38, Order, 2].  In Sweetman the advocate general referred to a “first stage”, involving the question: “Should we bother to check?”  This is the same as the Waddenzee preliminary assessment or preliminary examination stage, “which operates as a trigger, in order to determine whether an appropriate assessment should be undertaken”. The advocate general then referred to a “second stage” which bundles together the “appropriate assessment” and the development authorisation:  her taxonomy was not followed by the Court of Justice [Sweetman at §§ AG49, AG50, AG57, AG68—AG71, §§ 29—31].  In Smyth Sales LJ referred to “the first limb” and “the second limb” of article 6(3), the first limb being described as “the screening opinion” or “preliminary check” stage, the same as the “preliminary assessment”, “preliminary examination” or “trigger” stage, and the “second limb” being, apparently, the “appropriate assessment” stage, again bundling assessment and authorisation together [Smyth v Secretary of State for Communities and Local Government [2016] Env LR 7  at §§ 16, 17, 43, 44, 51, 53, 55, 57, 61, 64, etc  per Sales LJ with whom the other members of the Court of Appeal agreed].

[16]      For what follows the most important thing to keep in view is that article 6(3) provides for staged decision-making and that the relevant stages for this case are the preliminary decision, the “appropriate assessment” and the development authorisation stages.  The preliminary decision stage could be called “sifting”, but I think it would be unwise, here and now, to give it a new name.  “Screening” is the term used by the applicants and decision-makers in this case.  I think the best option is to use the term “screening”, bearing in mind that a formal screening decision is not explicitly provided for in terms of article 6(3) and that so-called screening in terms of the Habitats Directive 92/43/EEC art. 6(3) and the relative domestic legislation must not be confused with the actual screening that is explicitly provided for in terms of the EIA Directive 2011/92/EU and its domestic emanations.

[17]      The ministers, when it comes to these judicial proceeding at least, if not previously, accept the staged decision-making analysis and describe the favourable “appropriate assessment” as a “jurisdictional prerequisite” of the Inch Cape project authorisations, namely the grant of licences in terms of the Marine (Scotland) Act 2010 section 21 and the consent in terms of the Electricity Act 1989 section 36.  The “appropriate assessment” bears, from its heading, to relate to those permissions and to the same development authorisations under the Electricity Act 1989 and the Marine (Scotland) Act 2010 for each of the other three Forth and Tay projects [6/4].

[18]      The RSPB’s lead challenge is directed at the Electricity Act 1989 section 36 consent in respect of the environmental impact assessment which is integral to that decision. The challenge is also directed at the Habitats Regulations “appropriate assessment” as a claimed component of the Electricity Works EIA Regulations environmental impact assessment and as a pre-requisite of the Electricity Act 1989 section 36 consent decision.  The “appropriate assessment”, although the subject of extensive criticism, is not challenged as a decision in its own right in the sense that no application is made to set it aside.  This is possibly a complicating factor.

[19]      The grant of the marine licences in terms of the Marine (Scotland) Act 2010 section 21 is not impugned, which is another possibly complicating factor.  The marine works challenge is directed at the environmental impact consent decision in terms of Marine Works EIA Regulations reg. 22 which, as stated above, is separate from but supports the grant of the marine licences in terms of the Marine (Scotland) Act 2010 section 21.  Very little was or is said about this matter on behalf of the RSPB by way of averment or in submissions; and, until I come back to the matter at the end of the section of the Opinion dealing with Ground A, I shall mention the Marine Works EIA Regulations reg. 22 issue only where necessary to cast light on the challenge to the Electricity Act 1989 section 36 consent [cf. Note of Argument for the ministers §§ 4.3, 23].

[20]      The ministers, exercising powers in various capacities under the different legislative provisions, are the decision-makers.  They are for example a “competent national authority” for the purpose of the Habitats Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora; and in terms of the transposing legislation, the Habitats Regulations, the ministers are “the competent authority”.  The ministers are “the regulator” and the “appropriate authority” as regards any activity in Scotland, including the waters adjacent to Scotland, for the purposes of the Marine Works EIA Regulations.  Ma