May 16, 2017

Scots judge reverses block ruling on major windfarm plans

By James Mulholland | The Scotsman | 16 May 2017 |

Scotland’s most senior judge has reversed a decision to halt plans for four offshore wind farms which could power for 1.4 million homes and create thousands of jobs.

Lord Carloway ruled on Tuesday that his colleague Lord Stewart was wrong to allow a legal challenge which stopped the developments going ahead.

The challenge had been made by the Royal Society for the Protection of Birds.

The organisation had gone to the Court of Session in Edinburgh because it had thought the Scottish Government acted unlawfully.

The RSPB reckoned the farms – which are located in the Firths of Forth and Tay – put rare birds such as the Atlantic Puffin, the Northern Gannet and Black Legged Kittiwake at risk.

In a ruling made in July last year, Lord Stewart ruled that he agreed with the arguments made by the RSPB’s legal team.

He ruled that the Scottish Ministers breached legal requirements to give proper consideration to the areas being a haven for rare wild life.

Lord Stewart ruled that the government also failed to properly consult interested parties with regard to the impact that the developments had on the environment.

The judge also ruled that the ministers acted unlawfully by taking into account “unconsulted information” while they made their decisions.

However, on Tuesday, Lord Carloway – who was sitting with fellow judges Lord Menzies and Lord Brodie – ruled that his colleague interpreted the law incorrectly.

Lord Carloway, the Lord President, ruled that the Scottish Government acted properly and gave proper consideration to the areas being a home for rare wild life.

The judge also ruled that the Scottish ministers acted appropriately and properly consulted interested parties.

He ruled that the government gave the public the opportunity to give their opinions about the developments.

In his judgement, Lord Carloway wrote: “The regulations are intended to provide for the effective publication of effective publication of environmental information and public participation in the EIA process.

“The extent of such provision must however, be tempered with a degree of realism. It should not create an endless process of notification, of, and consultation on every matter, which is, or becomes, available to the decision maker prior to the decision.

“The process is to inform the public of the application, and its perceived environmental impacts no the responses from defined statutory bodies.

“The public then have the opportunity to comment on these matters and, no doubt, to raise any concerns about other issues which they perceive to arise.

“That process was fully complied with here.”

Lord Stewart had ruled that the Scottish Ministers would have to reconsider their decision on granting planning permission for the Neart an Gaoithe (CORR), Inch Cape, Seagreen Alpha and Seagreen Bravo developments.

The Scottish government had previously estimated the proposed wind farms could generate between £314 million and £1.2 billion for the Scottish economy.

The Holyrood administration also reckoned that the developments could also create between 2,567 and 13,612 jobs within Scotland during the construction period.

Consequently, the Scottish Ministers gave planning permission to these developments in October 2013.

The RSPB disagreed with the decision and launched a judicial review which was heard in the Court of Session in the early part of 2016.

Lord Stewart ruled in the RSPB’s favour in July 2016.

However, Lord Carloway said his colleague had interpreted the law wrongly.

He said Lord Stewart had been mistaken in how he interpreted the law when he was assessing the case.

Lord Carloway added: “Despite paying lip service to the correct legal test for judicial review, the Lord Ordinary has strayed well beyond the limits of testing the legality of the process and has turned himself into the decision maker following what appears to have been treated as an appeal against the respondents decision on the facts.

“He has acted, almost, as if he were the reporter at such an inquiry, as a finder of fact on matters of scientific fact and methodology which whatever the judge’s own particular skills maybe, are not within the proper province of a court of review.

“For this reason alone, his decision on this ground cannot be sustained.”

URL to article: