Councillors in Shetland cannot make a recommendation to Scottish ministers on the proposed Viking Energy windfarm in line with their democratic remit because they face an “irreconcilable” conflict of interest, according to their own head of legal services.
In a report to be debated by members at a special meeting on Wednesday, Jan Riise concludes that their simultaneous role as trustees of Shetland Charitable Trust, which owns 45 per cent of the Viking Energy Partnership (VEP), means they will be unable objectively to debate and comment on the application.
Instead, he writes, the council’s planning officials would have to submit a report directly to ministers at Holyrood, bypassing the elected members.
To address concerns that there would thus be no local democratic input, councillors could be invited to take part in a series of informal “hearings” to gather views on all sides, which would be transcribed and submitted along with the planners’ report.
Billy Fox, chairman of opposition group Sustainable Shetland, said: “This obviously illustrates what we have been saying for some time.”
Given the size of the windfarm proposal – VEP wants to build 150 turbines each 145m tall in the north and central Mainland, with a total generating capacity exceeding 50MW – the planning application is being handled under Section 36 of the Electricity Act 1989.
This means that it is up to ministers to decide whether it should go ahead, based on advice from the Energy Consents Unit. The SIC is one of a number of statutory consultees. As such, it would have been expected to have considered the Viking application in similar fashion to any other major planning application, with councillors debating and deciding on a recommendation to make to ministers.
Critics of the Viking plan have pointed out that there are several layers of potential conflict for councillors. Not only are all 22 councillors trustees of Shetland Charitable Trust, but one of them, Bill Manson, is chairman of Viking Energy Ltd. and two others, Allan Wishart and Alastair Cooper, are directors.
As well as instigating the partnership with Scottish and Southern Energy to form VEP, later selling its share to the trust, the council, as owner of the Busta Estate on which 40-odd of the turbines would be built, stands to benefit financially.
But it is the straightforward dual role that councillors have as trustees that is of most concern to Mr Riise. In his six-page report, he writes: “It is my advice and conclusion that an irreconcilable conflict arises for individual councillors in the handling of the Viking Energy windfarm consent application at a point in time when a recommendation requires to be framed to be made to the Scottish ministers.”
If his advice is accepted by councillors, it could have a hugely damaging effect on the project. Sustainable Shetland recently submitted a petition with more than 3,000 signatures against the windfarm. Although Mr Manson has ruled out a referendum, The Shetland Times is carrying out an opinion poll on the issue.
Mr Fox said the question of conflicts of interest was not a new thing and was not confined to the windfarm. “We would be concerned if this was an attempt by the council to avoid putting in a submission. What is going to be the outcome?”
If councillors accept Mr Riise’s views, it could also lead to the extraordinary spectacle of councillors making their contribution to the various hearings, proposed for Lerwick, Brae, Aith and Dunrossness, from the floor along with the public.
No firm proposals have been drawn up for the format of the hearings, which were originally suggested by executive director of infrastructure Gordon Greenhill, but one option is to have them handled by an ex-reporter of the Scottish government’s directorate of planning and environmental appeals, with anyone who wants to make a contribution allowed to speak.