Sustainable Shetland’s legal challenge against the Scottish Government’s approval of the Viking Energy windfarm has been adjourned due to a procedural matter.
A judicial review into consent for the controversial 103-turbine project was postponed on Wednesday, midway through the second day of evidence at the Court of Session in Edinburgh. The delay is to determine whether the UK government may wish to take an interest in proceedings.
Depending on the court schedule, it could lead to further delays to the project even if the government wins the case. The hearing had been due to conclude on Friday, but it is unclear when it will be rescheduled. It is likely to take some weeks following the end of the hearing before the judge, Lady Clark of Calton, gives her verdict.
On Tuesday, Sustainable Shetland’s QC Sir Crispin Agnew set out the protest group’s challenge to energy minister Fergus Ewing’s decision to back the windfarm.
It centres on a belief that the government failed to comply with its obligations under the EU Birds Directive – in relation to the windfarm’s potential impact on the whimbrel, a migratory wading bird.
When pressed on Wednesday morning by Lady Clark to clarify his position, it appeared that Sir Crispin was arguing that the government had breached the birds directive – rather than merely failing to take sufficient account of it.
That prompted the government’s counsel, QC Malcolm Thompson, to suggest that Sir Crispin was taking a slightly different position to that set out in Sustainable Shetland’s written petition.
Mr Thompson also said there may be a “devolution issue” – because the UK government would be responsible for any potential fine resulting from a breach of its obligations as an EU member state.
Following a short break, Sir Crispin conceded that that may be the case. Sustainable Shetland’s petition will be amended slightly, and the court will reconvene briefly on Friday morning for the two sides to further discuss whether there is a devolution issue.
The petition is then likely to be forwarded to the Advocate General for Scotland (who happens to be former Northern Isles MP Lord Wallace) and the Lord Advocate, who will then examine whether they need to become involved in proceedings.
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