A judge has ruled that the Scottish government failed to take proper account of its obligations under a European bird directive in granting consent for Viking Energy’s 103-turbine windfarm.
In a lengthy judgement issued on Tuesday, Lady Clark of Calton stated that ministers had not “meaningfully engaged” with the EU directive. That is because of the project’s expected impact on the whimbrel, a protected migratory wading bird.
A statement from Sustainable Shetland, which lodged the petition at the Court of Session, said the protest group was “pleased” with the ruling and will be “discussing the implications of this decision with our legal team”.
Lady Clark’s judgement stated: “This case involves a very large, multimillion pound development with important consequences.
“It is plain that this is a case in which it appears not to be disputed by anyone that whimbrel are a declining species in the UK with approximately 95 per cent of 290 breeding pairs in Shetland.
“I am not satisfied that the respondents [Scottish government ministers]… have complied with their obligations under the Wild Birds Directive 2009.”
She also ruled that ministers should not have granted consent to Viking Energy Partnership because the applicant does not have a licence to generate electricity.
Lady Clark stated that “all parties accepted that this development could not be ‘operated’ without a generation licence”.
The decision will come as a blow to Viking Energy, but it is not yet clear precisely how the ruling will impact on the controversial project. The judge said she would have the case continued to allow parties to address her on the terms of the court minute to be prepared.
Viking Energy said it needed to consider the 130-page judgement and was awaiting the Scottish Government’s reaction, as it is the party against which the petition was lodged.
A spokesman for the developers said: “We will continue taking appropriate steps on this project to maintain our positive momentum and we remain committed to what we believe is a once-in-a-lifetime opportunity to bring the many economic and environmental benefits of a renewable energy industry to Shetland.
“Indeed, both the UK and Scottish governments have recently demonstrated that they are keen to make the Viking windfarm happen with their proposed financial uplift to support Scottish island projects.”
Scottish Natural Heritage (SNH) took the view that reducing the scale of the development was still likely to result in a significant impact on the conservation status of the UK whimbrel population.
The Scottish Government contended that its decision letter had paid careful regard to the potential impact on the environment, particularly wild birds. It claimed that ministers were “not satisfied that the estimated impact of the development on whimbrel demonstrates such a level of significance”.
A Sustainable Shetland spokeswoman said: “We would like to thank our legal team for all their hard work, and all our members and supporters for their unfailing encouragement and financial generosity throughout this challenging process.”
A Scottish Government spokesman said it had received the 133-page ruling, adding: “Scottish ministers note Lady Clark’s judgement and will now consider it and its implications.”
More to follow.
The full judgement is available here.