| SECOND DIVISION, INNER HOUSE, COURT OF SESSION |
Lord Justice Clerk Lord Mackay of Drumadoon Lord Kingarth | [2012] CSIH 93 XA101/11 OPINION OF THE COURT delivered by LORD CARLOWAY, the LORD JUSTICE CLERK in an application under the Town and Country Planning (Scotland) Act 1997, section 239, by BAGMOOR WIND LIMITED, Applicants; against THE SCOTTISH MINISTERS, Respondents: _______ |
Applicants: Martin QC, Burnet; Lindsays
Respondents: Wilson QC, Cameron; Scottish Government Legal Directorate
7 December 2012
[1] This is an application challenging a decision of the respondents, dated 15 July 2011, adopting the recommendation of their reporter, dated 31 March 2011, to refuse the applicants' application for planning permission to build 14 wind turbines, some 110 metres high, over an area of 5.6 hectares at Stacain, near Inveraray, Argyll. If a buffer zone of 500 metres around the site were taken into account (see infra), the site area increases to about 460 hectares. The site lies within the Glen Etive and Glen Fyne Special Protection Area ("the SPA"), which was created by the respondents in October 2010 with a purpose of protecting golden eagles (aquila chrysaetos). The SPA is a "European" site. The reporter's recommendation was based upon his concerns about the effect of the wind farm on these eagles.
[2] The Conservation (Natural Habitats etc.) Regulations 1994 (SI 1994 No 2716), which implement the Habitats (92/43/EEC) and Birds (2009/147/EC) Directives, provide, inter alia, that:
"48(1) A competent authority, before deciding to... give any consent, permission...for, a plan...which -
(a) is likely to have a significant effect on a European site...
shall make an appropriate assessment of the implications for the site in view of that site's conservation objectives...
(5) In the light of the conclusions of the assessment,... the authority shall agree to the plan... only after having ascertained that it will not adversely affect the integrity of the European site.
(6) ...the authority shall have regard to the manner in which [a plan] is proposed to be carried out or to any conditions or restrictions subject to which they propose that the consent, permission... should be given".
The essential issue in this application is whether the reporter assessed the concerns about the eagles correctly in terms of this regulation.
The Site within the SPA
[3] The SPA extends to over 81,000 hectares lying between Ballachulish and Inveraray. It consists of two zones, north and south, separated by a broad corridor running parallel to, and including, the A85 road from Dalmally to Crianlarich. The southern zone, with which the appeal is concerned, is irregular in shape. This is because it is designed to include only the eagles' foraging ground. It accordingly excludes afforested areas. It also avoids incorporating the Clachan Flats wind farm, which is located outside its southern border. The Stacain site is to the north west of the zone. It would separate, from the main part of the zone, a tongue of some 170 hectares within the SPA running towards Loch Awe. There is another wind farm outside and to the west of the zone at Beinn Ghlas, a hill of 515m altitude. This is not to be confused with another Beinn Ghlas, a hill within the zone, of 550m altitude, which does not have a wind farm.
[4] As part of their application for planning permission, the applicants proposed a habitat enhancement scheme made up of three units. The purpose of the scheme is to discourage the eagles from the vicinity of the wind farm and to provide alternative and improved food sources in substitute for any lost by its creation. Unit A, consisting of the site and immediate surrounding area, would have carrion removed and heather kept in check to avoid attracting prey. Unit B, comprising all the ground in the SPA to the south of the site, would have its flora enhanced so as to increase prey. Unit C, a small area outside the eastern boundary of the SPA at the Lochan Shira reservoir, would be deforested in order to provide new foraging ground.
Planning history
[5] The applicants originally sought planning permission on 13 April 2005.[j1] In December 2007[j2] , Argyll and Bute Council notified the respondents that it had resolved to grant planning permission. On 17 March 2008[j3] , the respondents called in the application. On 13 May, [j4] they issued a "relevant notice" that a public inquiry would be held (Town and Country Planning (Inquiries Procedure) (Scotland) Rules 1997 (SSI No. 796), rule 3) and, on 9 June[j5] , they appointed a reporter. The inquiry took place between 18 and 26 November 2008[j6] . On 13 April 2009, the reporter recommended that the application be refused. Although he heard a number of different objections, the sole basis for his recommendation was the potential impact of the wind farm on the eagles. At that time the SPA did not exist, although it was being considered[j7] . The reporter found that, if a SPA for Glen Etive and Glen Fyne were created, the respondents would be bound to refuse the application in terms of the 1994 Regulations (reg 48(5)). His conclusion turned upon the risk of eagles colliding with a turbine (Report, para 9.49). This was based on the estimate, by Scottish National Heritage, of a "98% avoidance rate" (see infra).
[6] After the recommendation had been made, but before the respondents had made a decision thereon, SNH altered their estimate to a "99% avoidance rate", thus apparently halving the risk of collision. The respondents failed to consider this alteration before accepting the reporter's recommendation on 8 October 2009[j8] . On 19 March 2010[j9] , an application against that decision was allowed of consent and the decision quashed.
[7] On 22 April 2010 [j10] a new minute of appointment was issued to the reporter. The court was advised that this minute left what was to be considered at a re-opened inquiry entirely open for the reporter to decide. At a pre-inquiry meeting held in June 2010[j11] , the reporter specified the limited areas upon which he wished to hear further evidence. These, of course, included the effect of the wind farm on the eagles. The re-opened inquiry took place between 9 and 12 November 2010. By this time, the SPA had come in to being.
[8] On 31 March 2011 the reporter again recommended that the application be refused. This refusal was, once more, based solely upon his concerns as to the effect of the wind farm on the eagles. The reporter found that the respondents would be compelled to refuse permission by virtue of regulation 48(5) (supra). The same concerns involved the reporter finding that the application contravened certain specific planning policies. However, it is agreed that the reporter's decision stands or falls on the soundness of his approach to the 1994 Regulations.
[9] On 15 July 2011, the respondents stated that they:
"accept the Reporter's findings of fact, agree with his conclusions and recommendation and adopt them for the purpose of their own decision. ... the [respondents] adopt the appropriate assessment undertaken by the Reporter for the purposes of regulation 48 of the 1994 Regulations"
In these circumstances, whilst the appeal is formally against that decision of the respondents, it amounts in substance to a critique on the reporter's reasoning.
The SPA and the eagles
[10] SPAs are designated with "conservation objectives" (1994 Regulations, reg 48(1)(a)). Although the precise legal basis for their existence remains unclear, it was agreed before the reporter and the court that the objectives are:
"To avoid deterioration of the habitats of the qualifying species ... or significant disturbance to the qualifying species, thus ensuring that the integrity of the site is maintained; and
To ensure for the qualifying species that the following are maintained in the long term:
Population of the species as a viable component of the site
Distribution of the species within site
Distribution and extent of habitats supporting the species
Structure, function and supporting processes of habitats supporting the species
No significant disturbance of the species"
The specific justification for the classification of the Glen Etive and Glen Fyne SPA is the presence of 19 pairs of eagles with active territories. A pair of eagles will have an active territory of some 5,000 hectares. The 19 active territories represent over 4% of the total in Great Britain. Although there are a significant number of additional single eagles frequenting the SPA, it is the presence of the pairs of eagles, and their potential to breed, which is of central importance for the SPA's conservation purposes.
[11] The ultimate question for the reporter was whether a wind farm at Stacain would "adversely affect the integrity" of the SPA (1994 Regulations, reg 48(5)). It was accepted that the SPA would be so affected even if only one pair of eagles were eliminated, either through an eagle being killed and not replaced, or by a pair abandoning a territory. The inquiry and the hearing of the application proceeded upon this understanding, although it was maintained, first, that if one of a breeding pair were killed, it would be likely to be replaced by a single eagle and, secondly, that the existence of 19 territories was not critical to the SPA. The particular eagle territories that might be affected by the wind farm were designated GF1, whose territory covered the proposed site and GF2, whose territory (Glen Shira) adjoined that of GF1 to the east. The exact range of the territories, if there were one, was not defined with any greater precision
Beinn Ghlas and Abandonment
[12] The reporter heard evidence, by way of comparison, about the effect of the Beinn Ghlas wind farm. The area of the wind farm had previously been part of an eagle's territory; although the occupying pair had died before the turbines had been built in 1999. The evidence centred on what use was still made of the area of the wind farm by eagles now and what conclusions could be drawn about the effect of the wind farm.
[13] Mike Gregory, an experienced bird watcher with extensive knowledge of the local area, had given evidence at the first inquiry, when he had been cross-examined (first report, paras 6.16-6.22). He submitted a written representation, dated 5 October 2010, at the second inquiry. His evidence was that no eagles had been resident at Beinn Ghlas since 2002; birds sighted there had been from neighbouring ranges or were immature (Representation, p 6). Beinn Ghlas might be thought to have always been a somewhat marginal territory (ibid). Complete abandonment of territory by eagles was very unusual and had only occurred in two cases, in both of which the whole foraging territory had been densely planted with trees. Even territory, where nests were regularly destroyed and poison put down, was still the subject of regular attempts at re-occupation (Representation, p 7). Mr Gregory considered that the experience at Beinn Ghlas was "highly relevant" to the proposal at Stacain. If a wind farm were erected at Stacain, he said that it was "likely that the eagles will also abandon" the associated territory at Glen Shira (p 8, conclusion 5). Thus, at least by clear inference, Mr Gregory was attributing the continuing desertion of Beinn Ghlas to the erection of the wind farm.
[14] Dr Steve Percival, an expert ornithologist who was called by the applicants, explained in his precognition that, in relation to Beinn Ghlas, "there are many factors that could explain why the previous nest site has not been fully occupied, including a major outbreak of heather beetle" (precognition, para 3.9). However, in his evidence at the re-opened inquiry, he accepted that the possibility of the wind farm being the cause "should not be discounted" even if "it is not logically a key factor" (Report, para 3.53). He conceded that equivalent range abandonment as a result of the Stacain wind farm would constitute a significant effect on the SPA (ibid). However, eagles had now returned to Beinn Ghlas; sightings having been made in 2008 and 2010 (Report, para 3.90; cf Mr Gregory (supra)). Abandonment at Stacain because of the wind farm was, he thought, "very unlikely" (para 3.100).
[15] Professor Desmond Thompson, SNH's policy and advice manager, gave evidence in support of SNH's objection to the application. He referred to Beinn Ghlas as having been "unoccupied after at least 9 years" of habitat management and prey manipulation designed to encourage re-occupation (ibid para 37). He thought there was a "risk of range abandonment" (ibid, para 53) or a "prospect" of this for two pairs of eagles which "concerned" him (Report, paras 5.60, 5.58). This would have a significant effect on the SPA.
Collision Risk
[16] There was evidence at the re-opened inquiry concerning collision risk, and, in particular, the effect of the new SNH "avoidance rate" of 99%. At the original inquiry, Dr Percival had talked about the risk modelling which he had undertaken. This had produced a figure of "0.03 eagle collisions per year (equivalent to 1 strike in 28 years) or about 0.8 in total over the 25 year lifetime of the wind farm". Applying the precautionary 98% avoidance rate, which he had, the risk of collision was negligible. At the re-opened inquiry, Dr Percival explained (precognition, para 3.13) that:
"The avoidance rate is a measure of a bird's ability to avoid wind turbines. The collision model first calculates the numbers of collision that would occur if birds flew blindly and took no avoiding action, then applies the avoidance rate to make the prediction of collision risk more realistic and reflect current knowledge on birds' behaviour at wind farms".
The alteration from 98 to 99% meant that the risk had been halved, with 1 in 100 birds predicted to collide rather than 1 in 50. This produced (ibid, para 4.3) 0.015 collisions per year, or 0.4 over the lifetime of the windfarm, or 1 collision in 56 years. Thus, it was likely that there would be no collisions over the entire lifetime of the wind farm.
[17] Professor Thompson expressed some doubts about the applicants' figures (precognition, para 20) but seemed to agree that, on any view, the impact on the SPA from collisions would be "slight" (ibid, para 21). However, he turned his focus away from the effect of collisions to that of displacement caused by "behavioural avoidance" of turbines (ibid, para 7).
[18] In the course of the submissions during the hearing before this court, and in an attempt to explain the 99% figure, the respondents lodged SNH's guidance note entitled "Use of Avoidance Rates in the SNH Wind Farm Collision Risk Model", which had been a production at the inquiry, albeit not referred to in the operative part of the reporter's reasoning. The definition of avoidance rate is perhaps still, to a degree, elusive, but the essential feature, as deduced from this document, is that it is a statistical measure indicating the rate of success that birds have in avoiding collisions with wind turbines. It includes not only "behavioural avoidance", where a bird alters its trajectory to fly above, below, around or between the rotating blades of the turbines but also "behavioural displacement", which is the tendency of birds over time to cease use of the wind farm and go to alternative foraging grounds. The SNH have rates for particular species of birds. That of 99% for golden eagles does not reflect the characteristics of a particular wind farm nor the local habits of the birds. The statistic does not break down into individual components attributable to avoidance and displacement.
The Reporter's Conclusions
[19] The reporter's consideration of the effect of the wind farm on the eagles was extremely detailed and highly repetitive. This has rendered comprehension very difficult, since what is contained in one part is often repeated in others. The 1994 Regulations require an "appropriate assessment" only where "a significant effect" on a SPA is "likely" (reg 48(1)(a)). However, the reporter, perhaps against his better judgment (see Report, paras 8.33-34) was encouraged to treat the question of whether an appropriate assessment was required as, in itself, a discreet form of abbreviated assessment, described by both parties as a "screening stage" (ibid para 8.18). Ultimately, the reporter gave reasons for finding that an appropriate assessment was required and simultaneously gave separate reasons for his conclusions on the merits of the application, having made such an assessment before, apparently, reaching either decision.
[20] The manner in which the screening stage was to be carried out was contentious. The reporter first addressed this stage on his preferred approach, which did not involve a detailed assessment of all the material made available at the inquiries. He then went on to consider whether an "appropriate assessment" would be required on the applicants' "alternative approach", which did involve a detailed assessment, and issued reasons on both bases.
[21] At both the screening stage and after the appropriate assessment, the reporter considered the wind farm's effects with reference to the conservation objectives. Those objectives were overlapping. They amounted essentially to protecting the population and distribution of the eagles by preserving their habitat and avoiding disturbance. However, the objectives were discussed as separate items in the evidence and addressed in the same fashion by the reporter. The net result of all this was the reporter sometimes considered the same item of evidence, for subtly different ends, on several different occasions albeit in a very similar (if not sometimes identical) manner.
[22] On both the reporter's preferred approach and the applicants' alternative approach, the reporter found the wind farm was "likely to have a significant effect" on the SPA and that accordingly an appropriate assessment was required (1994 Regs, reg 48(1)(a)) (Report, paras 8.22 - 30, 8.54). He had determined that there was a direct risk of collision (para 8.22) and that there would be a loss of foraging habitat. He went on to determine that:
"8.24 During the operational period of the wind farm, it would also create disturbance or displacement effects. This is effectively confirmed by the 99% avoidance rate which [SNH] now applies in calculating the likelihood of collision. To the extent that the avoidance would be associated with the ...eagles using alternative areas to forage, that would equate to displacement and, effectively, an indirect loss of the foraging habitat within the application site".
He continued by finding that there was a "potential" for either the collision risk or the disturbance and displacement to lead to abandonment of the GF1, and possibly the GF2, territories; emphasising that this was not certain but founding on the Beinn Ghlas evidence which, he said, raised "reasonable scientific doubts as to the effect". He concluded:
"8.26 ...for any of the 19 pairs of golden eagles... the introduction... of a risk of collision, disturbance or displacement and abandonment are all effects which would be a significant effect on the [SPA]. In terms of regulation 48(1) therefore, ...the proposed development is a project which is likely to have a significant effect on a European site in Great Britain"
Although the reporter's conduct of the screening stage was criticised by the applicants, the manner in which he addressed that stage is of no materiality (see infra).
[23] The reporter recognised that in carrying out the "appropriate assessment", the task was to ascertain whether the wind farm would adversely affect the integrity of the" SPA (reg 48(5)). For all the repetitive detail in the report, the reasoning of the reporter appears encapsulated in his discussion of the wind farm's effect on the SPA's integrity in terms of the very first of the conservation objectives (supra) as follows (Report, para 8.64):
"4) ... the erection of the wind farm turbines would ... cause disturbance to the golden eagles. This is based on the recorded observations that golden eagles do fly though the application site, and also the recognition that the presence of the wind farm would affect their flight patterns to the extent that a 99% avoidance rate is applied when calculating the risk of collision.
5) Reflecting this, the parties have adopted the assumption that the golden eagles would be displaced from the 460 hectares which comprises the area of the wind farm and a surrounding 500 metres buffer zone. It is also likely that the wind farm would have a barrier effect on an additional tongue of open land of some 170 hectares lying immediately beyond the wind farm and bounded by forestry on its other sides.
6) ... [The displacement] would be 9.2% of the territory of the GF1 pair, based on a territory of 5,000 hectares, and around 11% if the barrier effect on the additional area was added.
7) ... displacement from 9.2% of their territory would represent significant disturbance to the GF1 pair of golden eagles. As this is one of the 19 active golden eagle territories for which the Scottish Ministers have classified the special protection area, ...this would undermine the first conservation objective ...
8) The consequences of this scale of displacement are not certain. The recordings of flights by golden eagles during the vantage point surveys ... may indicate that this area is little used, and the surveys of prey availability indicate that there are other areas within the GF1 territory which have a greater food resource. On the other hand there are also reasonable scientific doubts about possible under-recording of flights. ...
9) The potential effects of displacement on the GF1 pair would be heightened by the constrained nature of this territory, due to the presence of large areas of forestry and open water within it and it adjoining another active territory (that of the GF2 pair). The 460 hectares do comprise suitable foraging territory for golden eagles, and displacement would make the successful fledging of young more difficult.
10) There is evidence that displacement by forestry can lead to the abandonment of territories. Of particular concern is that the development of Beinn Ghlas wind farm ... has not been followed by the successful re-occupation of the previously active golden [eagle] territory within which it was built, despite the provision of a habitat enhancement scheme.
11) In these circumstances, ..., although it may be unlikely, it cannot be ruled out that the disturbance and displacement effect on the Stacain wind farm on the GF1 pair of golden eagles may lead to abandonment of the territory. Based on these reasonable scientific doubts, ...this conservation objective would be undermined, as it relates to avoiding disturbance to the golden eagles. Consequently, with regard to this conservation objective, ... adverse effects on the integrity of the special protection area cannot be ruled out.
12) That finding is re-inforced both by the potential additional displacement from the area of open ground beyond the wind farm, and by the presence, also within the GF1 territory, of the recently erected Clachan Flats wind farm. ..."
It is evident that the issues of abandonment and displacement occupied a prominent place in the reporter's thinking; a conclusion reinforced by certain other passages regarding the other objectives (Report p 74, objective 2(a), item 9; p 75, objective 2(b), item 2).
[24] In reaching his conclusions, the reporter initially left out of account the effect of the habitat enhancement scheme. The applicants had submitted that the scheme was a feature of the proposed wind farm and that the implementation of the scheme could be secured either as a condition of planning permission or by a planning agreement (Town and Country Planning (Scotland) Act 1997, s 75). Accordingly the scheme was a relevant consideration, bearing as it did on the "manner in which it [the plan] is proposed to be carried out or to any conditions or restrictions" that would be imposed on the grant of planning permission (reg 48(6)). The reporter rejected this submission. Relying upon guidance issued by the Commission of the European Union, he formed a view that the scheme did not truly mitigate the harm, but rather compensated for it. "Compensatory measures" were only relevant, and required to be considered, when a plan required to be carried out for imperative reasons of overriding public interest despite a negative assessment of the implications for the SPA (reg 49, implementing the Habitats Directive, Art 6(4)) (paras 8.60-8.63 and 8.68). The applicants had accepted that the wind farm did not qualify as such a plan.
[25] The reporter continued, however:
"8.69 ... in the event that I am wrong about that, and the habitat enhancement scheme can be taken into account, I find that the measures do not provide certainty that the proposed wind farm would not adversely affect the integrity of the special protection area. A habitat enhancement scheme at Beinn Ghlas has failed, in the sense that golden eagles have not re-occupied that territory. ... The measures proposed for the application site itself, while stated to be to avoid it becoming more attractive to golden eagles for foraging, could well lead to its deterioration. This would be contrary to conservation objective 1.
8.70 In addition, the scheme has been designed to provide equivalent foraging habitat for the GF1 pair, closer to their range centre. In the event of success in that respect, there is the possibility that the application site would be incorporated by the adjoining GF2 pair into their territory. The habitat enhancement scheme provides no alternative foraging habitat for them to lessen the likelihood of disturbance or collision".
The grounds of appeal and submissions
Applicants
[26] Although framed as six somewhat elaborate grounds of appeal (Note of Appeal (as adjusted) paras 4-9), the applicants explained that their complaints fell into four chapters. However, the complaint underlying one chapter (para 9) was all pervasive in that, in dealing with the issues arising in the other three chapters, the reporter had given inadequate reasons. The applicants' complaints may therefore be encapsulated more simply under three broad propositions: (1) the reporter lacked evidence to justify his findings, misunderstood the evidence, or gave inadequate reasons for his findings (paras 4, 5, 6); (2) the reporter erred in his application of Regulation 48, or did not demonstrate by his reasons that he had conducted the required exercise in relation to the screening stage (para 7); and (3) the reporter erred in his consideration of the habitat enhancement scheme, or had given inadequate reasons for his findings thereon (para 8).
[27] In considering the reasoning, it was not possible to ascertain whether the reporter had taken, or not taken, certain evidence into account or had simply failed to explain what the evidence had been. The applicants had been prejudiced by this deficiency (South Bucks DC v Porter (No 2) [2004] 1 WLR 1953, Lord Brown at para 30 following Save Britain's Heritage v Number 1 Poultry [1991] 1 WLR 153, Lord Bridge at 167). The reporter had failed to discuss the submissions made by the applicants on the two stage test required by regulation 48. The terms of that regulation were to be preferred to any European Commission guidance (infra). The reporter had also failed to respond to the criticisms made by the applicants of SNH, the statutory consultees, who had failed to conduct any empirical research.
[28] Under the second heading, the applicants complain that, in finding that the wind farm was "likely to have a significant effect" on the SPA (reg 48(1)(a)) and therefore required an "appropriate assessment", the reporter had applied too low a threshold and given inadequate reasons for finding that the threshold had been crossed (Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris Van Landbouw, Natuurebeheer en Visserij [2005] 2 CMLR 31, paras 39-41; R (on the application of Merricks) v Secretary of State for Trade and Industry [2006] EWHC 2698 (Admin), Hamilton QC at paras 36 - 39). The reporter had not understood the two stages and had failed to give proper reasons for his decisions at each. He had initially fallen into error in carrying out the screening stage without considering all of the material presented to him and relying solely on the evidence of SNH and Mr Gregory. It was not for the reporter to ignore the material placed before him at the first stage. He had subsequently carried out identical tasks for both stages; meaning that either the first was too detailed or the second not adequately so. He had not explained why the applicants' approach was incorrect. In his final assessment, he had carried out his own analysis, but not explained it adequately.
[29] In relation to onus of proof, regulation 48 imposed a national obligation on the respondents in terms of the international directives. It was for the respondents to satisfy themselves that there were sufficient compelling reasons to refuse to approve a development which was otherwise deemed to be in the public interest. They required to have a proper basis for determining that it should not be approved.
[30] The finding that the Stacain wind farm would cause abandonment in light of the experience at Beinn Ghlas was flawed in several respects. The evidence was too qualified or limited in character to justify a finding either that eagles had not re-occupied Beinn Ghlas because of the wind farm, or that a wind farm at Stacain would cause abandonment. Mr Gregory and Dr Percival had said complete abandonment was very rare. Both had acknowledged other possible causes of the non-use of Beinn Ghlas besides the wind farm. Eagles had now been seen there in 2008 and 2010. The reporter had not dealt with the inconsistencies in that evidence. It was his duty to reconcile the differing evidence as to the extent of the use of Beinn Ghlas, the reasons for non-occupation and the possible impact of the wind farm at Stacain. He ought to have explained which evidence he preferred and why, before going on to ask whether the relevant test in the 1994 Regulations had been met. If he had preferred the evidence of Mr Gregory, he should have said so and explained why.
[31] The reporter had, during the screening stage (Report, para 8.24), wrongly taken in to account the avoidance rate of 99% in assessing the likely displacement that would occur or had not given adequate reasons as to what bearing it had on displacement. It was initially submitted that the reporter had fallen into error in relying upon the 99% avoidance rate in determining the scope of likely disturbance. It was not enough to refer, without further explanation, to the 99% figure to justify the finding of displacement. The avoidance rate was concerned, it was said, with the tendency of eagles flying through the volume of air occupied by the wind farm to take evasive action by swerving around or between the individual turbines; whereas disturbance concerned the phenomenon of birds avoiding the wind farm altogether and using alternative foraging grounds. The avoidance rate simply had no bearing on the likelihood or extent of disruption. The evidence had demonstrated that there was no likelihood of collision.
[32] In light of the production of the SNH document the applicants' submissions changed tack. The new direction was that the reference to the avoidance rate in the reporter's decision was obscure. It was illegitimate to try and rationalise that by reference to the SNH document. That document had been the subject, at most, of fleeting reference before the reporter. The relevance of the avoidance rate to displacement had not been canvassed in evidence. In any event, the SNH document made it clear that the avoidance rate did nothing to indicate the likely displacement that would be caused by a wind farm at Stacain. The 99% figure did not indicate what element was attributable to behavioural displacement, and, even if it did, it was a figure applied across the board which took no account of the particular features of Stacain and the proposed wind farm.
[33] As framed in the appeal, it was only the reporter's approach to the habitat enhancement scheme as part of his "screening stage" that was attacked. The applicants moved to amend the grounds so as to broaden the attack to encompass his handling of the issue during the "appropriate assessment". As the matter was fully argued and no prejudice would result from the amendment, the motion is granted. The applicants reiterated their submissions before the reporter that, put shortly, the habitat enhancement scheme was part and parcel of the proposal and ought to have been taken in to account along with the direct effects of the wind farm itself (R(on the application of Hart District Council v Secretary of State for Communities and Local Government [2008] 2 P & CR 16, Sullivan J at paras 54 and 74 -75 citing WWF UK v Secretary of State for Scotland [1999] Env LR 632, Lord Nimmo Smith at 699). The need to take the scheme into account was clear from the terms of regulation 48(6), given that they could form the subject matter of a condition. The reporter's esto exercise in taking account of the scheme was also flawed. The reporter had not taken any account of Unit C, or at least had failed to demonstrate by his reasoning that he had done so. He might have simply accepted SNH's submission that Unit C was irrelevant as it was outwith the SPA.
Respondents
[34] The respondents submitted that the reporter's decision ought to be read as a whole and not subjected to detailed contextual analysis (Moray Council v Scottish Ministers 2006 SC 691). A significant element in his recommendation involved the assessment of matters, such as the effect of the wind farm, within his exclusive province (Tesco Stores v Secretary of State for the Environment [1995] 1 WLR 759, Lord Hoffman at 780). It was not for the court to re-weigh the evidence but to concern itself with the legality of the decision (Wordie Property Co v Secretary of State for Scotland 1984 SLT 345 at 347-8). In matters of opinion, the court should defer to the specialist tribunal and only intervene where there is no factual basis for them (Nelson v Allan Bros & Co (UK) 1913 SC 1003; Cartledge v Scottish Ministers [2011] CSOH 53).
[35] In terms of Waddenzee (supra), the requirement for an appropriate assessment depended upon there being a probability or risk that the plan would have a significant effect on the SPA. The emphasis was on risk rather than probability. If it were not possible to exclude such a risk on the basis of objective information, the plan had to be the subject of such an assessment. This involved a first "screening" stage. The second stage required a more detailed assessment, having regard to the characteristics and specific environmental conditions of the SPA and linked to the conservation objectives. There is no particular method of carrying out the assessment. It may, despite the initial assessment, result in a conclusion that the plan will have no adverse effect on the integrity of the SPA. However, the plan should only be approved if the competent authority has made certain that it will not adversely affect the integrity of the SPA. Such approval may be given only where no reasonable scientific doubt remains. It was at the assessment stage, and not at the screening stage, that a determination on effects took place.
[36] The European Commission had published guidance, namely Managing Natura 2000 Sites (2000) and Wind energy developments and Natura 2000 (2010), on the management of SPAs, which, along with certain Special Conservation Areas, were termed Natura 2000 sites. The reporter had had regard (Report, para 8.15) to the guidance, which covered the procedures to be followed under Article 6 of the Habitats Directive (supra). The 2010 guidance had recommended (p 65) a "Stage One: Screening" "evaluation" whereby, if significant negative effects could not be excluded, upon the basis of objective information, a "Stage two: Appropriate Assessment" was required. If there is any doubt, an Assessment is needed (p 67). The precautionary principle applies (para 5.3.2). The Assessment involves the ingathering of detailed information on the potential impacts of the plan on the conservation objectives. The burden of proof "is on demonstrating that there will be no adverse affects on the integrity of the site" (p 65). The Assessment is often an "iterative process", allowing "mitigatory" measures to be taken into account (para 5.5.4). Compensatory measures were not relevant to this part of the process (p 91).
[37] There had been evidence, notably from Mr Gregory, which justified the reporter's approach to the Beinn Ghlas comparison. The reporter was not required to resolve why Beinn Ghlas ceased to be occupied. He felt he had insufficient evidence to decide why non-occupation of Beinn Ghlas had occurred as a result of the wind farm. The relevant question was whether the possibility of abandonment caused by a wind farm at Stacain had been excluded beyond reasonable scientific doubt. The inevitable outcome of a lack of evidence was that the applicants would fail on this issue and the application would be refused.
[38] There had been no differences in primary fact that required resolution. Although it was disputed that the Stacain wind Farm would lead to abandonment, the evidence of Mr Gregory of what had happened at Beinn Ghlas was not disputed. Indeed, Dr Percival and Professor Thompson had relied on Mr Gregory's findings. Dr Percival had also said that the possibility of the failure to re-occupy being caused by the wind farm "should not be discounted". The sightings noted in 2008 and 2010 were not to be equated to permanent occupation by a pair. It was not disputed that there had been no resident pair of eagles at Beinn Ghlas since 2002.
[39] The reporter had not confused the distinct effects of the wind farm on the eagle population. He had had in mind collision risk, disturbance and displacement. He correctly took into account the contribution of behavioural displacement to the avoidance rate (Report para 5.55). It was noted in the evidence of Dr Percival at both the first and second inquiries that the greater the displacement, the lower the risk of collision (first report, para 3.21; second report, para 3.83). A similar point was made by Professor Thompson (second report, para 5.55). This was the only point that the reporter was making.
[40] The reporter had been correct in his first approach that mitigation did not have to be taken into account at the screening stage, but did at the assessment stage. He was also correct in his view that the habitat enhancement scheme was properly characterised as compensation and therefore irrelevant to the tasks under regulation 48 (cf reg 49). Alternatively, any error was immaterial since he had proceeded to take it, including Unit C, into account. The aims of units A, B and C were described respectively as: "Dissuade Golden Eagles from using Stacain Wind Farm Site"; "Enhance key eagle prey/carrion resource remote from the Wind Farm footprint" and "Restore Golden Eagle foraging Habitat by felling commercial forestry". Thus only Unit C was concerned with providing foraging habitat. Where the reporter referred to a measure "designed to provide equivalent foraging habitat" (at para 8.70), this must be taken to be a reference to Unit C.
[41] On each substantial or determining issue, the reporter had given intelligible reasons for his decisions (Uprichard v Scottish Ministers 2012 SC 172, LJC (Gill) at para [26]; Greenland Developments (UK) v Scottish Ministers [2012] CSIH 5, Lord Mackay of Drumadoon, citing Moray Council v Scottish Ministers (supra), LJC (Gill) at para [30]). The reporter's reasoning was clear and logical. It was set out in a defined framework in a comprehensible format which would have left the informed reader in no doubt on the bases for the decision.
Decision
Regulation 48
[42] Regulation 48 implements Article 6(3) of the Habitats Directive, from which the terms "likely to have a significant effect" and "appropriate assessment" have been taken. In Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris Van
Landbouw, Natuurbeheer en Visserij (C-127/02) [2005] 2 CMLR 31 the European Court of Justice explained:
"33. Article 6(3) of the Habitats Directive provides that the competent national authorities are to authorise a plan... likely to have a significant effect thereon only after having ascertained, by means of an appropriate assessment of the implications of that plan or project for the site, that it will not adversely affect the integrity of the site.
34. That provision thus establishes a procedure intended to ensure, by means of a preliminary examination, that a plan ...likely to have a significant effect on it is authorised only to the extent that it will not adversely affect the integrity of that site.
...
45. ... Art.6(3) of the Habitats Directive must be interpreted as meaning that any plan ... is to be subject to an appropriate assessment of its implications for the site in view of the site's conservation objectives if it cannot be excluded, on the basis of objective information, that it will have a significant effect on that site, either individually or in combination with other plans or projects.
...
61. ... under Art.6(3) of the Habitats Directive an appropriate assessment of the implications for the site concerned of the plan ... implies that, prior to its approval, all the aspects of the plan ... which can, by themselves or in combination with other plans..., affect the site's conservation objectives must be identified in the light of the best scientific knowledge in the field. The competent national authorities, taking account of the appropriate assessment ... are to authorise such an activity only if they have made certain that it will not adversely affect the integrity of that site. That is the case where no reasonable scientific doubt remains as to the absence of such effects."
[43] The effect of the Court's dictum is that the determination, of whether a significant effect is likely, is relevant only to the issue of how the application will be evaluated, rather than whether it will be granted. The Court describes this first, "screening" stage as a "procedure ... by means of a preliminary examination" to ensure an appropriate assessment is carried out when necessary (para [33]). It is essentially a procedural step taken by the competent authority to determine the form of evaluation that will be made. The way this first step is performed, if done correctly, ought not to affect the substantive result.
[44] The terms of regulation 48(1)(a) are entirely consistent with the Court's dictum. The purpose of this "preliminary examination" is to allow the competent authority to permit plans which can clearly be safely carried out without effect on the SPA and thus without the need for a detailed second stage "assessment". Such an assessment must take place, however, "if it cannot be excluded, on the basis of objective information, that it [the plan] will have a significant effect on that site." (para [45]). Although the competent authority is not obliged to make efforts to obtain objective information, an appropriate assessment cannot be dispensed with except on the basis of objective information to the effect that there is no risk of significant effect. The word "likely" in the regulation is not to be construed as an expression of probability, in a legal sense, but as a description of the existence of a risk (or possibility).
[45] The requirement for objective information at the preliminary examination is not to be equated with a need for scientific knowledge. The Court only refers to "the best scientific knowledge" in the context of the appropriate assessment (para [61]). "Objective", in this context, means information based on clear verifiable fact rather than subjective opinion. The ipse dixit of the plan's proposer that a plan involving the use of ground in a SPA will not have any effect will not normally suffice nor will reassurances based on supposition or speculation. If the absence of risk in the plan can only be demonstrated after a detailed investigation, or expert opinion, that is an indicator that a risk exists and the authority must move from preliminary examination to appropriate assessment. If this does occur, however, it is important, if the pitfalls noticed in this case are to be avoided in the future, that the competent authority make the fact that this transition has occurred clear.
[46] There is no prescribed formula as to how the two stage exercise contemplated by regulation 48 and the Court of Justice is to be carried out. There are several ways in which it might be done in the context of domestic planning legislation and, no doubt, the precise form will depend upon a range of facts and circumstances, including the nature of the permission sought and the conservation objectives to be protected. However, with an application such as the present, at least by the time the respondents elect to call it in and order a public inquiry, it ought to be made clear, at least in the normal case, that any preliminary examination stage has been passed and that what is to be carried out at the inquiry is an "appropriate assessment" in terms of regulation 48(1)(a). Public inquiries are not held in order to undertake preliminary examinations.
[47] It may just be possible, in a rare case, for the respondents to order an inquiry yet leave it to the reporter to decide whether an appropriate assessment is required. If that were done, the first "screening" stage ought to take the form of a preliminary examination undertaken (or the form of which could be agreed) at a pre-inquiry meeting and before any assessment is embarked upon. What should not occur, as happened here, is that the reporter carry out a detailed assessment and then decide that such an assessment was required before re-assessing the same evidence to reach a substantive decision. Put another way, there was no point in the applicants adducing a body of detailed evidence and then inviting the reporter to determine whether there was any need to adduce it.
[48] It is abundantly clear, at least to this court, that the construction and operation of 14 wind turbines, each 110 metres high, in the foraging ground for eagles in a SPA would be "likely" to have (ie that there would be a risk of) a significant effect upon those eagles and hence the conservation objectives of the SPA. Certainly, that prospect could not have been discounted upon a preliminary examination. Accordingly, the court considers that it was inevitable, on these simple facts alone, that an appropriate assessment under regulation 48(1)(a) would have been required. It is that latter exercise that ought to have been the sole focus of the reporter at a public inquiry.
[49] How the reporter conducted the screening stage was immaterial to the outcome of the application (since an assessment was inevitable in respect of a wind farm in a SPA) and equally irrelevant to this application. The reporter stated the correct test derived from the Waddenzee (supra). If parties had not lead the reporter down a tortuous detour, the route to his decision may have been shorter and clearer, but he nevertheless reached the correct ultimate destination. In terms of the classic test, the informed observer and the court are left in no real and substantial doubt as to what the reasons for the reporter's decision were and what were the material considerations which he took into account when reaching it (Wordie Property Co v Secretary of State for Scotland 1984 SLT 345, Lord President (Emslie) at p 348; and see infra).
Beinn Ghlas and Abandonment
[50] The reporter's approach to the evidence was specifically attacked with regard to: (1) eagle occupation near the Beinn Ghlas wind farm and its implications for the likelihood that the eagles in territory GF1 would abandon Stacain; and (2) the relevance of collision risk to disturbance. Each will therefore be considered in turn.
[51] The task that the reporter was required to undertake involved recommending approval only if, in light of the best scientific knowledge, he could be "certain", that the plan would not adversely affect the SPA's integrity. That could only be if "no reasonable scientific doubt remained" (Waddenzee (supra), at para 61). In these circumstances, it was sufficient for the reporter to find that the evidence left open the possibility that a wind farm at Stacain would lead to abandonment of the GF1 territory (ie the permanent loss of one pair of eagles). He did not require to resolve every aspect of the evidence or every subsidiary issue relating to Beinn Ghlas.
[52] Contrary to the contention of the applicants, the reporter had a basis in the evidence of each of Mr Gregory, Professor Thompson and Dr Percival for his finding that a reasonable scientific doubt remained. The reporter accepted the representation from Mr Gregory, which was not disputed by the other two experts, that there had been no eagles resident at Beinn Ghlas since 2002. No doubt, there may have been sightings in later years, but these were explained as being from neighbouring ranges or by immature birds. In stating that complete abandonment of territory by eagles was rare, Mr Gregory was not saying that it was likely that further eagles would occupy Beinn Ghlas in due course. He was explaining that something unusual must have happened to cause this at Beinn Ghlas. The only obvious unusual feature, especially in light of the measures which had been taken to encourage re-occupation, was the wind firm
[53] Dr Percival did not discount this possibility, even if he thought that it was very unlikely. This is important since, if it were not possible to discount it, it might (ie within the bounds of scientific knowledge) also happen with the Stacain wind farm. Professor Thompson essentially supported Mr Gregory's view that there was a risk of range abandonment. All of this adequately supported the reporter's finding (Report para 8.64(7)) that disturbance and displacement could not be ruled out and that this could lead to abandonment of territory, thus producing an adverse effect on the integrity of the SPA in terms of the conservation objectives. The reporter's reasoning and its expression are clear and would leave the informed observer in no doubt as to its basis and meaning.
Displacement and the Collision Avoidance Rate
[54] Similar considerations apply in relation to the avoidance risk. The context of the report's observations are important. It was common ground that the eagles would tend to shy away from use of the wind farm and that constructing the wind farm would represent a loss of foraging ground. The area of the wind farm was a modest 5.6 hectares, but once the 500 metre "buffer" zone was included, this figure would be multiplied almost ten fold. The 170 hectares of the tongue would also fall to be classified as lost habitat. The reporter accepted that the consequence of a loss of this scale was not certain, but the eagles would also be affected by the existence of both open water and forest in what remained of the GF1 territory.
[55] The reporter's reference to the 99% avoidance rate in this context was simply confirmation of what was already clear and had been ascertained during his screening exercise (para 8.24, quoted supra). The displacement was "effectively confirmed" by that rate. The reporter properly understood the meaning of the 99% rate and the import of the increase in the 98% figure. The 99% rate took into account the "behavioural displacement" of the eagles. The reporter was noting this factor in observing that this extremely high rate "confirms" (no more than that) the idea that the eagles will avoid a wind farm, not simply by not flying through it but by keeping away from it altogether (ie giving it a wide berth). Although it is fair to say that the court did have some initial difficulty in understanding how the rate was arrived at, like the hypothetical yet ubiquitous impartial observer, once the necessary knowledge had been acquired, it had little difficulty in understanding the reporter's description of its import as supporting the prospect of displacement.
Habitat Enhancement Scheme
[56] There is force in the proposition that, at the appropriate assessment stage, the reporter was bound to consider the whole of the habitat enhancement scheme. Notwithstanding the terms of the European Commission guidance, this appears to be clear from regulation 48(6), which states that regard is to be had to any conditions or restrictions which are to apply to the permission. If an applicant for permission includes certain conditions in his plan, these require to be taken into account (WWF UK v Secretary of State for Scotland [1999] Env LR 632, Lord Nimmo Smith at 699). Describing some particular aspects of the habitat enhancement scheme as mitigatory and others as compensatory does not appear to be of material significance in the context of this application. Since all aspects could all have been made the subject of a condition, all required to be considered.
[57] However, although the reporter may have initially erred in his view that the habitat enhancement scheme should not be taken into account at all (para 8.68), he went on to determine the matter on the basis that it should (para 8.69) and thereafter found that the measures proposed did not provide the necessary certainty required to demonstrate that the SPA would not be adversely affected. This finding in fact was one which he was entitled to reach on the evidence presented in relation to the failure of measures at Beinn Ghlas and the fact that discouraging measures at the application site would also reduce the available foraging ground.
[58] The reporter did consider the effects of Unit C. The language used (para 8.70) refers to the absence of an alternative foraging habitat which would lessen the likelihood of disturbance or collision. This can only be a reference to the alternative foraging which would be available in Unit C. The reporter held that the alternative foraging may be used by the GF1 territory pair, but, in that event, the application site would become part of the GF2 pair's territory, yet no alternative foraging was being made available for that pair. Again, this was a finding that the reporter was entitled to make and one which is clearly expressed in understandable terms.
[59] The application under section 239 of the 1997 Act is accordingly refused.