The decision of the Scottish Ministers to grant Section 36 Consent for the construction and operation of the 103 turbine Viking Windfarm in Shetland was quashed on Wednesday 2 October. The decision follows an appeal by local objector group, Sustainable Shetland. This is the first time that a petition for judicial review by a third party objector group in Scotland has been successful in quashing a decision of the Scottish Ministers to grant consent for an onshore windfarm.
The judgement in the case was based in part on the question of whether the applicant, a general partnership between Viking Energy Limited and SSE Viking Limited, was a licence holder at the time of submission of the application. This was considered in the context of the applicant's compliance with duties under Schedule 9 of the Electricity Act 1989 in relation to the preservation of amenity and fisheries.
The typical approach in Scotland has been for developers to obtain planning permission, or section 36 consent, in advance of securing a generation licence from Ofgem or attaining exemption from DECC. The court has found that Section 36 Consents issued in this manner are incompetent as there is a requirement for the licence to be in place before the application for Section 36 Consent is submitted.
The Scottish Ministers have indicated their intention to appeal the decision which has the effect of suspending the effect of the Viking decision. It is likely that business will proceed as usual until the outcome of the appeal is known. However there remain potentially far reaching consequences for developers throughout the UK.
Developers should consider the implications for operation of sites, sites under acquisition, current applications where there was neither a generation licence or generation licence exemption in place at the time of submission of the application.
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