RSPB challenge against North Sea wind farms dismissed as Scottish Ministers win appeals over consents
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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 impact, and the responses from defined statutory consultative bodies (additional information). The public then have an 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.”
The court further held that the judge at first instance had erred in his approach to the standard of review which the court should apply in such cases.
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’ decisions 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 may be, are not within the proper province of a court of review. For this reason alone, his decision on this ground cannot be sustained.”
The judge at first instance had also erred in holding that the Scottish Ministers’ reasoning had been inadequate.
The appellate court said: “The decision letters are detailed documents covering a wide variety of issues. Again, however, the reasons for reaching the decisions are clearly set out both in a specific summary form and in the preceding more expansive format. Due process had been carried out. The ESs (environmental statements) had judged the likely impact to be acceptable. The projects would contribute to local or national economic development priorities and the respondents’ energy policies. On the basis of the AA, the respondents had determined ‘to the appropriate level of scientific certainty’ that the projects would not adversely affect site integrity in view of their conservation objections…The respondents stated that, having taken into account the relevant information from the applicants, the consultative bodies’ responses, the AA and both the mitigation measures and conditions imposed, there were no outstanding concerns requiring consent to be withheld. This is again sufficient to meet the legal test of adequacy.”
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