Supreme Court dismisses case against Shetland wind farm

9th February 2015

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Luke Mabvudza

A wind farm on Shetland will go ahead after the Supreme Court dismissed challenge under the EU birds and habitats Directives.

The proposed Viking Energy wind farm would consist of 103 turbines and was opposed by government advisers Scottish Natural Heritage (SNH), the RSPB and local campaign group Sustainable Shetland. The groups fear the wind farm will damage the island’s population of whimbrels, a protected migratory bird.

Around 95% of the UK’s population of the whimbrel use the island to breed. A 2009 survey revealed a 39% decline in the bird’s population over the previous 20 years.

According to the judgment, developers Viking Energy submitted extra information in its environmental statement on bird impact. It included an estimate of the number of whimbrels that would potentially be displaced or killed by the wind farm. It said that around 1.8 pairs of the bird would be displaced and around 2.1 birds would be killed after colliding with turbines.

The developer proposed measures to mitigate the potential damage to the whimbrel population, including predator control and habitat restoration. But SNH maintained that the wind farm would have a “significant adverse impact” on the birds.

Scottish ministers, however, gave the wind farm the go-ahead in 2012, claiming that the peatland restoration proposed by the developers would benefit a large range of species and that the number of whimbrels killed by the turbines was very small compared with deaths by other causes.

That decision was overturned in 2013 by judge Lady Clark of Calton, who claimed that the scheme breached the EU birds directive by threatening the whimbrel. Appeal judges in Edinburgh subsequently overruled Clark’s decision.

Sustainable Shetland went to the Supreme Court, claiming that ministers had an obligation not only to maintain the current level of whimbrel, but to increase its population. They argued that this meant it had failed in its obligations under the both birds and the habitats Directives.

However, the judges said that, although decision letter from the Scottish government did not specifically mention the birds Directive, it was clear from its consideration of the advice from the SNH that it had taken the Directive into account.

The judgment states: “[Sustainable Shetland’s] difficulty is that its suggestions are unsupported speculation, and were not raised by anyone in the representations on this proposal – whether by the expert bodies or anyone else.”

The judges declined to refer the case to the European Court of Justice.

James Mackenzie, vice-chair at Sustainable Shetland, said that the organisation was very disappointed at the outcome of its campaign, which he said had been “unprecedented in Shetland’s history”.

“Our opposition to the wind farm – and its dire implications for the Shetland community and environment – remains undiminished,” he said. Mackenzie added that Sustainable Shetland may consider further legal action. A spokesperson for SNH also said that it was considering the ruling. “We remain committed to working with the developer in achieving the aims of their habitat management proposals,” he added.

Alan Bryce, chair of Viking Energy, commented: “We can now concentrate on developing what would be one of the world’s most productive wind farms, to generate renewable energy and significant income for the Shetland community.”

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