The RSPB has successfully challenged the decision of the
Scottish Government to grant consent for three major offshore
windfarm projects in the outer Firth of Forth, meaning that the
development permissions for the Neart na Gaoithe, Seagreen and
Inchcape projects have been judicially cancelled.
Why have the permissions been cancelled?
In a 114 page lengthy and closely argued judgement published on
19 July 2016, Lord Stewart of the Court of Session in Edinburgh
said that the decisions of the Scottish Government were seriously
flawed, both in terms of procedure and substance. The main reasons
The failure to properly consult RSPB and the statutory natural
heritage bodies (Scottish Natural Heritage and the Joint Nature
Conservation Committee), particularly in relation to analysis and
data obtained by Marine Scotland at the end of the consultation
The Scottish Ministers should not have made the decision on the
basis of this un-consulted on material.
There was a reliance on novel methodologies in relation to
calculation of what would happen to bird populations in the absence
of the projects, and these methodologies had not been consulted on
or peer reviewed.
There was a failure by Marine Scotland and the Scottish
Ministers to interrogate reasonable scientific doubts about the
impact on protected bird populations.
There was a failure to properly take into account the whole
life impact of the projects on the protected bird populations,
assessed over the 25 year period of the lives of the projects.
It was wrong to rely on Marine Scotland’s conclusions
which derived from in-house advice which relied on contested
science and was disputed by RSPB and the statutory natural heritage
The judge suggests that RSPB was "frozen out" of the
process of considering the impact of the projects on bird
populations towards the end of the process. There seems to be a
suggestion in the judgement that Scottish Ministers and Marine
Scotland used innovative techniques in order to reach an
unreasonable conclusion that there would be no adverse impact on
the protected bird populations.
Is the decision final?
No – the Scottish Government and the developers could seek
to appeal the decision to a higher court of the Court of Session.
Ultimately, an appeal might be possible to the Supreme Court in
London. However, it is perhaps more likely that the developers will
make a new application or applications, possibly for a smaller
number of turbines in positions which would give rise to less
impact on the bird populations.
Are these projects dead?
This will depend on the appetite of the developers to expend
further money on pursuing applications and on their ability to
overcome the criticisms made by the judge. The judge does suggest
that "there are quantitative options, both as to how many and
which projects are to be consented and as to the number, spacing or
density and height of the turbines..." – tending to
suggest that smaller schemes may still be capable of being
Aside from the risk of securing consents, the developers would
need to evaluate the availability of subsidy contracts from the UK
Government in the form of “Contracts for Difference”.
The Neart na Gaoidhe CfD has already been terminated by the
government company which issues subsidy contracts, although that
decision is subject to a current arbitration.
Is offshore wind development in Scottish waters dead
No – this latest decision is highly site specific, but
underscores the significant difficulty in securing consent for
projects which have an adverse impact on "European
Sites". Where there is such an adverse impact on European
Sites, politicians have a very limited ability to authorise such
impact. In essence, European sites have "legal
protection" from degradation, even if it is politically
What are the main lessons to be learned?
To succeed in an application which impacts European sites:
The developer must ensure that the bird data fully assesses the
existing size and health of populations and the likely impact on
populations, both in the "do nothing world" and where the
project is completed.
There may be merit in ensuring that any preliminary technical
conclusions about impact on any European Site are subject to
external consultation before proceeding with a political
Depriving bodies like RSPB and the natural heritage bodies of
access to all data and the opportunity to comment on it is likely
to be counter-productive.
Proceeding with an application where the natural heritage
bodies conclude that there is an adverse impact is likely to be
The material contained in this article is of the nature of
general comment only and does not give advice on any particular
matter. Recipients should not act on the basis of the information
in this e-update without taking appropriate professional advice
upon their own particular circumstances.
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