Plans for a huge windfarm in the northern isles have been blown off course by a rare wading bird.
A judge’s ruling has left the 103-turbine scheme in limbo – and the Scottish Government facing allegations it flouted European nature conservation rules.
Last night, a legal expert said it was likely that SNP ministers’ decision to back the massive project in Shetland would be quashed and that it would have to be considered again.
Developer Viking Energy Partnership won permission for the £556million scheme despite fierce local opposition.
Campaign group Sustainable Shetland challenged the decision in a judicial review at the Court of Session in Edinburgh, arguing that the planning application was not competent and the decision to approve it should be set aside.
Part of the group’s challenge claimed ministers had failed to take proper account of obligations over wading bird the whimbrel under European wild bird laws.
Yesterday, both Viking Energy and the government said they needed time to consider the implications of the court decision.
Delighted members of Sustainable Shetland said they would also have to examine what the decision meant. Judge Lady Clark upheld the campaign group’s plea that the decision should be set aside due to incompetency and continued the case to allow all parties to address her on what the court order should contain.
Developers claim the windfarm would generate about £30million a year – two thirds of which would go to the Shetland Charitable Trust – and create 140 temporary and 34 permanent jobs.
The development would be the third-largest windfarm in Scotland, and Viking claims it would be able to power about 175,000 homes.
Lady Clark said in a 130-page judgment: “I am not satisfied that the respondents – the Scottish ministers – have complied with their obligations under the Wild Birds Directive 2009.”
The judge said she considered that they had not “meaningfully engaged” with the directive.
She added: “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% of 290 breeding pairs in Shetland.”
The Scottish Government said in its decision letter that it had careful regard to the potential impact on the environment, particularly wild birds. It noted that Scottish Natural Heritage (SNH) took the view that a reduction in the scale of the proposed development was still likely to result in a significant impact of national interest on the conservation status of UK whimbrels.
But it was said: “Ministers are not satisfied that the estimated impact of the development on whimbrel demonstrates such a level of significance.”
Lady Clark said: “I am in no doubt that the complete failure of the respondents to address explicitly legal issues arising out of the Wild Birds Directive 2009, and explain their approach to the decision-making in the case, has caused great difficulty in understanding and dealing with their decision.
“I am of the opinion that there were plainly live issues in this case of a material and potentially determining nature about whimbrel and the Wild Birds Directive 2009, to which the respondents ought to have been alerted.”
The judge said the primary position of the ministers and the Viking Energy Partnership was that the directive was irrelevant in the present case.
The judge also noted that no reasons were given for disagreeing with the view of SNH.
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