A rare bird has flown to the heart of the legal challenge against the Scottish government’s decision to give the go-ahead for Shetland’s controversial Viking Energy wind farm project.
Opponents maintain that there was a breach of a European birds directive when it was approved by energy minister Fergus Ewing on 4 April last year.
Campaign group Sustainable Shetland has raised a judicial review at the Court of Session in Edinburgh of ruling last year granting consent for the 103 turbine project.
Acting for the group, Sir Crispin Agnew of Lochnaw QC told the court: “One of the main legal contentions is how the Scottish government has approached the birds directive and we say that is an error of law.”
They are seeking to have the decision set aside and maintain that a public inquiry should have been held and that the ministers failed to properly take account of the impact of the development on the whimbrel.
The court heard that 95 per cent of the British population of the migratory wading birds breed on Shetland.
Sir Crispin said: “Shetland holds a substantial portion of the British population, but it has been in decline in numbers.”
Ewing had hailed the Viking project as providing enormous benefits to the people of Shetland.
Sir Crispin told Lady Clark of Calton that Shetland Islands Council’s head of planning Iain McDiarmid had recommended refusal of the project as it was contrary to a development plan, but the council decided not to oppose the application.
He said the Scottish ministers had given priority to energy production in their decision.
Sir Crispin said: “I am not saying they can’t. It is a matter of judgment for them. But it is a judgment that has to be made against the background that energy does not trump environment.”
He said concerns had been raised over disturbance to whimbrels, displacement and deaths of birds through collisions at the wind farm.
The counsel said Scottish Natural Heritage had objected to the project maintaining there was a high likelihood of a significant adverse impact on the wader.
Sir Crispin said: “SNH have considerable concerns. One of my criticisms of the decision maker is the government just says the habitat management plan will be successful.
“We are not told what information they might have to contradict the advice they have had from their own adviser,” he said.
The ministers maintain that they gave detailed consideration to the impact of the development on the whimbrel in light of SNH advice.
Their decision letter said: “Ministers accept that the loss of 3.7 whimbrel per year as a result of the windfarm would be likely to have some impact on what is a small and declining subset of the species.
“However, in numerical terms, the estimated mortality rate of only 3.7 fatalities per year is very small and must be considered in the context of annual deaths estimated at between 72-108 per year from other causes, including predation.”
They considered that potential beneficial effects from the habitat management plan could reasonably be expected to provide “some counterbalancing positive effects”.
They maintain that they had proper regard to the environmental information on the whimbrel and have complied with their obligations under the birds directive.
They also contend that they have not acted unlawfully or unreasonably in not having an inquiry before granting consent for the project and maintain the decision should not be set aside.
The judicial review is set down for four days with Lady Clark expected to give a ruling at a later date.
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