Wind farms and the environmental assessment process

A recent decision by the Scottish Court of Session underlines the challenges of matching the legal requirements of environmental assessment procedures with the realities of handling complex planning applications involving thorough discussions and debate.

The Petition of Skye Windfarm Action Group (Scottish Court of Session [2008] ScotCS CSOH 19, 1 February 2008) was an action for judicial review against the Highland Council’s decision to grant planning permission for a major wind farm on the Isle of Skye.

Amex, the company behind the proposal, had initially made an application for a 28-turbine wind farm in 2001. At the time the relevant structure and local plans supported renewable energy and the area had no statutory nature conservation sites.

But in 2002 land nearby was designated a Special Protection Area under the 1979 EC birds Directive because it was an important breeding ground for golden eagles. And in 2006 the Highland Council approved new non-statutory planning guidance concerning renewable energy, which provided that in much of the area proposed for the wind farm there should be a presumption against development. Any developer would have to show there was no scope to carry out the development in other areas.

It was against this changing policy and legal background that the application was considered. The applicants had submitted a scoping report for the preparation of an environmental statement in connection with the original proposal. There then followed a lengthy period of discussion and comment from bodies such as Scottish Natural Heritage, the Scottish Environment Protection Agency, and the Royal Society for the Protection of Birds. The environmental statement that was prepared was supplemented by a further statement as new concerns came to light.

Finally in 2006 the company substantially amended the proposal, reducing the number of turbines to 18. There were further discussions dealing with concerns about the possible effects of the turbines on bird mortality, but eventually Scottish Natural Heritage withdrew its objections provided that planning conditions were imposed to control the type of turbine used.

Planning permission was granted in 2007, but the Skye Windfarm Action Group, an environmental non-governmental organisation challenged the decision on a range of legal issues.

The major challenges concerned the adequacy of the environmental assessment procedures. The first concern was that the local authority had accepted environmental information from the developer in a piecemeal manner that was inconsistent with the requirements of the environmental assessment regulations and the EC Directive for a comprehensible document which was reasonably digestible by members of the public.

The court noted that in 2006 the local authority had advised the developer to lodge a fresh application with a new consolidated environmental statement because there had been so many changes and so much supplementary material that the original statement had lost its cohesion and transparency. Lord Hodge accepted the process had fallen "far short of the ideal", but not sufficiently so that the decision should be judged illegal.

It was true that the developer must submit an environmental statement providing a comprehensive assessment of environmental effects to allow the authority to make a judgment on the development’s impacts. But it did not follow that the developer should submit all the environmental information in one document. The regulations allowed the local authority to request further information, which the applicant could submit and which could become part of the environmental statement.

The various documents contain non-technical summaries and, although the judge felt that the material "would have been easier to assimilate if it had been aggregated, edited, and re-presented in one document", he believed interested members of the public could have ascertained the development’s key information on environmental effects without much difficulty.

The petitioners then argued that the local authority had acted illegally in failing to take into account alternative sites. In contrast to the US legislation on environmental impact statements, the EC Directive and transposing regulations were extremely modest when it came to alternatives. Information in the statement had only to include an outline of the main alternatives studied by the applicant. Lord Hodge felt it was clear that this referred only to alternatives actually studied by the developer, and there was no requirement to study alternatives in the first place. The regulations allowed the authority to require information about alternatives, and the results of that study are then included as part of the environmental statement.

The local authority had decided that the new 2006 planning guidance (which required alternatives to be considered) was to be taken in account but was not a site-specific planning tool. Lord Hodge considered that in the circumstances the authority was not legally obliged to look at alternatives or require the developer to do so.

Various other grounds of challenges were raised but dismissed by the Court. The final challenge, concerning the 1992 EC habitats Directive and the 1994 implementing regulations, was described by the judge as initially appearing to be the most formidable. The Regulations require that where a project is likely to have a significant effect on a European protected site, such as the Special Protection Area in this instance, an assessment must be made by a consenting authority.

In this case Scottish Natural Heritage (SNH), one of the statutory consultees, was responsible for assessing the potential effects on the golden eagle population. The petitioners argued that, particularly because SNH’s scientific methodology had been criticised by RSPB and other ornithologists, the local authority was legally obliged to carry out its own independent evaluation. According to the European Court of Justice in the 2004 Wadden Sea case, the test requires that there is no reasonable scientific doubt about the absence of adverse effects.

Lord Hodge reviewed the evidence, and the uncertainties concerning the future trends of Skye’s golden eagle population. Scottish Natural Heritage claimed its own assessment that the predicted loss of less than one eagle a year due to the wind farm would not affect the Special Protection Area’s integrity was based on the Wadden Sea test of no reasonable scientific doubt.

Looking at the evidence, Lord Hodge concluded that the local authority was aware of the criticisms of SNH’s methodology. SNH "had the needed expertise and was under a statutory duty to secure compliance with the habitats Directive." The local authority was entitled to challenge its views, but was not legally obliged to carry out further appraisals.

As the Skye wind farm case illustrates, environmental assessment for controversial projects in environmentally sensitive locations by its very nature often involves extensive discussion, changes in perception and adaptations to the project itself in response to concerns. Matching such processes to the requirements that environmental information is proved in a publicly accessible and comprehensible format is not easy.

In the case, the court did not hold back from criticising the way the process had been handled. However, as is often the case, deficiencies from best practice may well not be sufficient to render the decision illegal.

Richard Macrory is professor of environmental law, University College, London

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