The Scottish government is to appeal the Court of Session ruling to withdraw planning consent from the huge Viking Wind Farm development in Shetland.
On Wednesday morning Lady Clark of Calton set aside the consent granted to the 103 turbine development by Scottish ministers in April last year, following a judicial review brought by anti-Viking campaign group Sustainable Shetland.
Lady Clark held that the decision to allow the 370 megawatt wind farm to be built was “incompetent” because the Viking Energy Partnership did not have an electricity generating licence.
She also said ministers failed to take proper regard of the European Wild Birds Directive, relating specifically to whimbrel, a rare species of wader with 295 breeding pairs in Shetland who form 95 per cent of the UK population.
The court also ordered Scottish ministers to pay £60,000 of Sustainable Shetland’s legal expenses.
Shortly after the announcement, the Scottish government said they would appeal against the judgement in the next few days.
A government spokeswoman said: “Ministers do not agree that the application was incompetent under Schedule 9 of the Electricity Act, nor do they agree that they failed to take proper account of their obligations in under the EU Wild Birds Directive in the decision making process.”
This is the first time that a judicial review of a wind farm development in Scotland has been upheld.
Sustainable Shetland chairman Frank Hay said the group was “heartened” by the outcome, saying it reflected months of hard work by all concerned.
“This ruling is hugely important,” he said.
“We have always felt that this project was wrong for Shetland – a belief upheld by our own planning department, who advised that Shetland Islands Council should recommend refusal to the consent.”
Viking Energy issued a statement saying they would not comment until the detail of the legal judgment had been issued.
Sustainable Shetland had hoped to be granted a public inquiry into the development, but this was refused by Lady Clark.
Her finding that the developers did not have an electricity generating licence could have repercussions for the wider renewables industry, as other developers may have been granted consent without such a licence.
It had been assumed that the involvement of energy giant Scottish and Southern Energy as joint partners in Viking would have been sufficient to deal with this issue.
However it emerged during the hearing that the subsidiary company directly involved in the project does not hold such a licence.
Lady Clark said that even if the developer had held the appropriate generating licence, consent would still have been set aside because ministers had failed to take due regard of the Wild Birds Directive.
Viking’s application said that 3.7 whimbrel were likely to be killed by the wind farm every year, but claimed their plans for an ambitious habitat management plan would help to reverse the current decline in the species – around 100 birds a year are lost to natural causes.
Scottish Natural Heritage objected, saying there was no evidence on which to base that assumption.
In court Scottish ministers claimed the special protected area for whimbrel and other birds of the isle of Fetlar meant they were already meeting their obligations under the European directive, however it emerged that even on Fetlar the species is declining.
However the evidence showed that no regard had been taken to the birds issue when ministers granted consent.
The government appeal will be heard by three judges in the Inner House of the Court of Session, which could take months.
Should they lose there, ministers will still be able to appeal to the Supreme Court in London, which may refer the case on to the European Court of Justice as it involves the European Wild Birds Directive.
Meanwhile it should be possible for the developers to apply for an electricity generating licence and to resubmit their original application.
If there are any changes to the application, it will have to go through the entire planning process, which will slow things down even further.
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