The campaign group fighting the planned Viking Energy wind farm in Shetland is trying to raise more than £30,000 from its supporters to fight its latest legal battle.
Last week Sustainable Shetland elected to contest an appeal by the Scottish government against a Court of Session ruling in September that the wind farm plan breached the European wild birds directive.
The decision is an expensive one, as the group of volunteers has already spent well over £60,000 on its judicial review.
To limit their financial liability, they have chosen not to challenge the government’s appeal against the more controversial part of Lady Clark of Calton’s ruling – that consent for the 103 turbine development was invalid as Viking Energy did not hold a licence to generate electricity.
This issue has become a political hot potato that reached Westminster’s upper house last week when Lord Teverson attempted to retrospectively change the law on the issue.
On Tuesday evening the Liberal Democrat energy spokesman in the House of Lords proposed an amendment to the 1989 Electricity Act that would allow developers in Scotland to apply for consent to build a wind farm without a generating licence, as they already can in England and Wales.
However he found no support amongst the “noble lords” and withdrew his amendment following a verbal assault led by former Tory Scottish secretary Lord Forsyth of Drumlean, a self confessed wind farm opponent.
Lord Teverson had said Lady Clark’s ruling had undermined financial investment in power generation north of the border by introducing “a great deal of uncertainty into the system”.
Lord Forsyth responded with outrage, largely directed at the Scottish government, which has stated it intends to ignore the court’s ruling and continue to grant consent to wind farm developers regardless of whether they have a generating licence.
In a letter, the Scottish government had said it was in the “public and national interest… to support the economy and our renewable ambitions” by continuing with the status quo (ie. granting consent to non-licence holders) until the appeal had been determined.
Lord Forsyth called this an “absolute scandal”, saying it was “quite wrong” for the government to say “their renewable ambitions trounce the law of the land”.
He added that Lord Teverson’s amendment would “create a situation where any Tom, Dick or Harry could apply for permission to establish a wind farm – or, I guess, any other form of generation.”
At this, Lord Teverson backed off rapidly, saying his proposal had merely been “a probing amendment” to test the water.
He confessed: “I am highly persuaded by the argument put forward by my noble friend Lord Forsyth about the reaction of the Scottish Government, in that clearly the rule of law is the rule of law wherever we are within the United Kingdom, and I would never wish to pull the carpet from under that important principle in how we live our public life. I beg leave to withdraw the amendment.”
The full debate in the House of Lords can be found here.
In response, the Scottish government said it did not think it was above the law.
A spokeswoman said: “The Scottish government respects, and is subject to, the law.
“Scottish ministers have appealed against Lady Clark’s decision. The effect of the appeal is to suspend the effect of the decision until the appeal has been determined.”
Sustainable Shetland chairman Frank Hay said that such political involvement meant the group was well advised to stay out of that argument, as it was likely to go on for “even longer” than the six days set down for the appeal at the end of February.
With Sustainable Shetland stepping back from this aspect of the case, the court will appoint a “contradictor” to rebut the government and Viking Energy’s appeal in Edinburgh’s Inner Court of the Court of Session.
Regardless of the appeal’s outcome, either side could still take the case to the European Court, adding further delays to the wind farm and costs to the litigants.
If the government and Viking Energy win the appeal, the campaign group will have to pay all their own legal costs, which by then will amount to around £100,000.
They also have to reapply for a protected cost order that will limit their liability for the government’s legal costs to £5,000.
The government has already been ordered to pay £60,000 of the group’s costs for the judicial review, but Sustainable Shetland will not see that money unless ministers lose their appeal.
A Sustainable Shetland spokesman said: “Many people petitioned Shetland Islands Council against the wind farm development and sent objections to the Energy Consents Unit.
“We are also aware of groups around the UK who have concerns about the proliferation of wind turbines. We would be grateful for any financial support.
“We shall of course continue to fundraise in other ways that are appropriate to our constitution.”
If the government ultimately loses its case, Viking Energy will have to reapply for consent to build their wind farm.
Hay said that if that happened he hoped that next time there would be a public inquiry.