The Supreme Court yesterday dismissed Sustainable Shetland’s challenge to the Scottish Ministers’ decision to grant consent under section 36 of the Electricity Act 1989 (“the 1989 Act”) for the Viking Wind Farm (“Viking”), to be constructed in the central Mainland of Shetland.
The Supreme Court was the third tier of consideration for the challenge. The Outer House of the Court of Session initially quashed the Scottish Ministers’ decision although the Scottish Ministers successfully appealed to the Inner House.

The only matter before the Supreme Court was whether the Scottish Ministers had taken proper account of their obligations under the Birds Directive (2009/147/EC) when granting consent for Viking. One of the key issues in consideration of the application was the potential for impacts on whimbrel, a qualifying interest of the Fetlar Special Protection Area (“SPA”). Previous judgements had also considered whether the Scottish Ministers had the power to grant section 36 consent to a party who was not a generation licence holder under the 1989 Act.
The principal articles of the Birds Directive at issue were Articles 2 and 4. In summary, Article 2 requires measures to be taken to maintain the population of wild bird species at a level which corresponds in particular to ecological, scientific and cultural requirements, while taking account of economic and recreational requirements, or to adapt populations to that level. Article 4 requires special conservation measures to be taken in respect of bird species and is the provision under which SPAs are designated.

In dismissing Sustainable Shetland’s appeal, the Supreme Court did not consider the nature and extent of the obligations under Article 2 of the Birds Directive. However, it did make the following points:

  • The lack of explicit reference to the Birds Directive in the decision letter did not mean the decision was flawed. It was sufficient that detailed consideration was given to the advice of SNH, which did make reference to the provisions of the Birds Directive.
  • When determining an application for section 36 consent, the Scottish Ministers’ duty was not to determine what the appropriate level of the whimbrel population was for the purposes of Article 2. Their duty was to determine the application, taking account of all material considerations of which the Birds Directive was one factor.
  • If there had been evidence that Viking might prejudice the Scottish Ministers’ compliance with their obligations under the Birds Directive, that would have been a potential objection which required consideration. However, it was not raised by anyone in representations and Sustainable Shetland’s suggestions were “unsupported speculation”. Post-decision correspondence between Shetland Bird Club and the Scottish Ministers and European Commission, showing that the status of SPAs in the Shetland Islands is under continuing review, was said to contain no suggestion that the current position involved a breach of the Birds Directive.
  • The Ministers did have regard to improving the conservation status of whimbrel, and in doing so were entitled to have regard to the limited predicted impact on whimbrel from Viking, together with the prospect of a habitat management plan improving their conservation status.