Sustainable Shetland v The Scottish Ministers and another

When determining a development application under the Electricity Act 1989, ministers must consider all material considerations. Relevant obligations under the Birds Directive form part of the legal background, but do not require a general review of the state’s performance of its continuing conservation duties.

A finding that a proposal will have no significant adverse effect does not automatically remove the directive from consideration. Evidence that the proposal might prejudice fulfilment of directive duties would require consideration. Decision-makers need not, however, investigate unsupported and unraised speculation. They may depart from expert advice after considering it and giving a rational explanation.

Sustainable Shetland challenged the Scottish Ministers’ consent under section 36 of the Electricity Act 1989 for a 103-turbine windfarm. The challenge concerned the development’s anticipated effect on the nationally significant Shetland population of whimbrel, a protected migratory bird, and the proposed Habitat Management Plan.

The Lord Ordinary reduced the consent on a separate statutory ground and would also have upheld the challenge under the Birds Directive. The Inner House unanimously allowed the ministers’ appeal in [2014] CSIH 60. It held that the directive was relevant to the development decision but did not require a review of the United Kingdom’s continuing conservation obligations.

The central issues were whether the ministers had properly accounted for articles 2 and 4(2) of the directive, whether further conservation measures had to be considered, and whether renewable-energy and climate-change benefits could lawfully be balanced against directive obligations.

1. Appeal dismissed unanimously. Lord Carnwath delivered the judgment, with which Lord Neuberger, Lord Sumption, Lord Reed and Lord Hodge agreed. The Inner House’s order was confirmed.

2. The ministers’ relevant functions arose from their statutory responsibility to determine the development proposal under the Electricity Act 1989, not directly from the Birds Directive. They had to consider all material considerations. These included statutory wildlife-conservation duties, the environmental assessment and the directive as part of the governing legal background. The directive did not itself impose a specific requirement concerning this development: paras [29]–[32].

3. The ministers were expected to attach weight to advice from Scottish Natural Heritage and other expert bodies, but were not bound by it. Although the decision letter did not name the directive, it closely considered SNH’s advice, which identified its provisions. There was therefore no serious doubt that the ministers had taken the directive into account: para [31].

4. The ministers did not have to begin by determining an appropriate national population level for whimbrel or by conducting a general review of the United Kingdom’s continuing compliance with the directive. Their task was to decide the particular application before them. The Lord Ordinary had therefore adopted an unduly broad approach: paras [29]–[32].

5. The Inner House went too far in saying that the directive necessarily fell out of the picture once the anticipated effect was found insignificant. Evidence that a proposal, although insignificant in itself, might prejudice fulfilment of directive obligations would raise a material objection requiring consideration. Here, the suggested need for additional special protection areas or other measures under article 4(2) was unsupported speculation and had not been raised during consultation. The ministers were not required to determine it: paras [33]–[35].

6. The ministers rationally regarded the limited anticipated effect, together with the Habitat Management Plan’s prospect of improving conservation status and knowledge of the species, as answering the objection. They were entitled to depart from SNH’s assessment after considering its advice: paras [35]–[36].

7. The decision letter’s reference to renewable-energy and climate-change benefits was a fallback. Since the ministers’ primary reasoning was lawful and sufficient, the court did not decide the precise role of economic considerations under article 2. That question, and the possible need for a reference to the Court of Justice, was left for a case in which its resolution was necessary: paras [37]–[38].

1. United Kingdom Supreme Court: The appeal was dismissed unanimously and the Inner House’s order was confirmed: [2015] UKSC 4.
2. Inner House of the Court of Session: The Scottish Ministers’ appeal was allowed unanimously. The court held that the Lord Ordinary had addressed the wrong question and that the ministers had lawfully taken the Birds Directive into account: [2014] CSIH 60.
3. Outer House of the Court of Session: The Lord Ordinary reduced the consent on a statutory ground no longer pursued. She stated alternatively that the ministers had failed to take proper account of the Birds Directive.