RSPB legal challenge against North Sea wind farms fails after UK Supreme Court refuses permission to appeal

A panel of three justices refused permission to appeal after ruling that the application did not raise an “arguable point of law of general public importance” which ought to be considered at this time.

Appropriate Assessments

RSPB had objected to the decisions of the respondents to grant consent under the Electricity Act 1989 to develop new marine electricity generating projects in the Firth of Forth and Firth of Tay.

The appellant objected to the proposed developments broadly on the basis of potential adverse impacts on certain species of migratory seabird living in special protection areas (SPAs).

Appropriate Assessments (AAs) – a precondition for a lawful consent – were carried out on behalf of the respondents under the Habitats Regulations 1994 and 2010 and the Offshore Marine Regulations 2007, which concluded that the wind farms would not adversely affect the integrity of the special protection areas.

The RSPB expressed concerns about the scientific methodology used in the AAs and argued that it did not receive sufficient information in relation to the applications for consent.

‘Perverse conclusion’

The appellant raised judicial review proceedings against the respondents and the Lord Ordinary reduced the decision to grant the consents to the interested parties.

The judge held that the Scottish Ministers had failed to comply with the provisions of the Environmental Impact Assessment (Scotland) Regulations 2000 (EIA Regulations) and thereby acted unlawfully by taking into account information that had not been consulted on.

He held that the AAs had taken into account irrelevant considerations, left out of account relevant considerations, applied the wrong legal test and reached a “perverse” conclusion in relation to ornithological risk.

He found that the Scottish Ministers were in breach of their EU law obligations by refusing or delaying to classify the Outer Firth of Forth and Tay Bay Complex as a marine special protection area (SPA), and thereby failed to give consideration to the protection of conservation interests in the area.

No breach of regulations

The respondents successfully appealed to the Inner House of the Court of Session and the appellate court reversed the judge’s orders that the decisions were unlawful (Scottish Legal News, 16 May 2017).

The court ruled that there had been no procedural defect in the Scottish Ministers’ AA process, nor was there any breach of the relevant regulations, which were designed to permit public access to certain environmental information and to allow the public to respond to it in advance of any decision.

The court further held that the Lord Ordinary had erred in his approach to the standard of review which the court should apply in such cases.

The judge at first instance had also erred in holding that the Scottish Ministers’ reasoning had been inadequate.

The result of the ruling by the Inner House was that the four separate petitions for judicial review by the RSPB challenging plans to develop new offshore wind farms in locations ranging from Anstruther in the south to Montrose in the north were dismissed.

The RSPB sought permission to appeal to the UK Supreme Court, but the application was rejected.

The Supreme Court’s determination stated: “Permission to appeal has been refused on the grounds that the application does not raise an arguable point of law of general public importance which ought to be considered at this time, bearing in mind that the case has already been the subject of judicial decision and reviewed on appeal.”