The Scottish government displayed “a fundamental misunderstanding” of European laws to protect birds when it granted permission for a huge wind farm in Shetland, it was claimed in the UK’s highest court on Thursday.
Five law lords sitting in the Supreme Court have been asked to decide whether Holyrood was correct to give planning consent to the 103 turbine Viking Energy wind farm in Shetland’s central mainland in April 2012.
Thursday’s hearing, the third in connection with the Viking development, may set a precedent about protecting endangered birds that live outside designated special areas of conservation.
The outcome of the hearing is likely to finally decide whether the contentious wind farm development will proceed.
The migratory whimbrel, a protected wading bird whose UK population breeds almost entirely in Shetland, lies at the heart of the legal challenge from campaign group Sustainable Shetland.
Last year the group won the argument in Edinburgh’s Court of Session that the government had breached the European birds directive by granting consent to the 457 megawatt wind farm.
However the ruling was overturned in July this year by the court’s Inner House after the government appealed.
In the Supreme Court on Thursday, Sustainable Shetland’s QC Sir Crispin Agnew of Lochnaw argued that the whimbrel, which only has 290 breeding pairs in Britain, 95 per cent of which are in Shetland, required “very special protection”.
He said that the only protection the bird currently receives is through the Special Area of Conservation on the isle of Fetlar.
However Viking Energy’s environmental impact statement had revealed that the strongest whimbrel population lived on Shetland’s mainland where the proposed wind farm would be built.
While Fetlar’s whimbrel population had declined by up to 80 per cent over the past 20 years, the decline on Shetland’s mainland had only been around six per cent, he said.
Sir Crispin argued the government therefore had an obligation to consider designating the proposed wind farm site to protect the species, which it had failed to do.
“I would say it’s quite clear from the environmental statement addendum that it would appear that the mainland of Shetland somehow is the most suitable territory… and the obligation to classify the most suitable territory requires it to be designated,” he said.
“The Scottish government ought to have considered whether this was the most suitable territory given that it now holds more whimbrel than Fetlar and the decline in Fetlar is significantly higher than the decline in the mainland and that was never considered.”
He added that the government should also have considered other special measures, such as switching turbines off during the mating and breeding season when whimbrel are known to fly higher than usual.
“If they decided not to designate it, they should consider whether other special measures should have been considered and it is quite clear that this was not done because they make it quite clear in their submission that once they had designated Fetlar they had fulfilled their obligations.
“If the wind farm goes ahead this might cease to be one of the most suitable territories and therefore will no longer be suitable for classification.”
Sir Crispin said the Shetland Bird Club had written to both Brussels and Edinburgh asking for the conservation area to be extended to the manland in light of this new information, but had been told this would have to wait for a future review.
Viking say their development would kill 3.7 and displace 5.5 whimbrel every year.
They have developed a habitat management plan, which they say would protect the species and help its numbers recover.
However Sir Crispin said: “The ability of the habitat management plan to address this was never tested in a public inquiry and yet ministers came down on the side of the developers, because they said it was an acceptable fall back position.”
The government had also argued that the benefits of this development in combatting climate change “trumped” any impact on birds, which Sir Crispin said could not be the case.
The government’s QC Malcolm Thomson countered that the habitat management plan was “an opportunity to do something positive for the whimbrel population in Shetland that would not otherwise have been done”.
It is understood that European law has never before been tested on protecting endangered species outside of a designated conservation area, which means this case could set a legal precedent.
The law lords said they would consider the matter and report back “in due course”.
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