Sustainable Shetland v The Scottish Ministers & Anor (Scotland) [2015] UKSC 4

Sustainable Shetland challenged Scottish Ministers' consent for a 103-turbine windfarm in Shetland, arguing inadequate consideration of obligations under the EU Birds Directive regarding the protected whimbrel. The Supreme Court dismissed the appeal, upholding the Inner House's decision that ministers had lawfully considered the directive.

Facts

Sustainable Shetland, an unincorporated environmental association, challenged a consent granted on 4 April 2012 by the Scottish Ministers under section 36 of the Electricity Act 1989 for the construction of a large windfarm in the Shetland Islands. In its amended form, the development comprised 127 turbines (later reduced to 103 following the removal of the Delting area turbines due to aviation issues) across three areas covering some 50 square miles, with associated infrastructure including 104 km of access tracks.

The whimbrel population of Shetland is highly significant, representing approximately 95% of the total UK population (around 290 pairs based on a 2009 survey). Of these, 56 pairs bred in the central mainland area where the windfarm would be sited, with 23 pairs within the development site itself. A 2009 survey showed a 39% decline in Shetland whimbrel over the previous 20 years.

Scottish Natural Heritage (SNH) raised objections concerning the impact on whimbrel, referencing articles 2, 3(1), 3(2)(b) and the last sentence of article 4(4) of the EU Birds Directive. The developers produced an Environmental Statement Addendum and a Habitat Management Plan (HMP) intended to mitigate impact and improve whimbrel conservation status. SNH expressed continuing concerns about the experimental nature of mitigation measures.

Issues

The principal issues before the Supreme Court were:

• Whether the Scottish Ministers had properly taken account of their obligations under the Birds Directive (Directive 2009/147/EC) when granting consent;
• Whether the ministers were required to conduct a full review of their functions under the Birds Directive, including determining an “appropriate level” for the whimbrel population under article 2, as a starting point for consideration of the proposal;
• Whether the ministers should have considered designation of further special protection areas or special conservation measures under article 4(2);
• Whether reliance on “balancing considerations” such as renewable energy and climate change benefits to override Birds Directive objections was lawful;
• Whether a reference to the CJEU was required.

Arguments

Appellants’ submissions

Sustainable Shetland submitted that the ministers had approached the whimbrel issue on the wrong basis in law. They argued the ministers failed to take account of positive obligations not merely to maintain the current whimbrel population but to adapt it to an appropriate level under article 2, effectively to achieve “favourable conservation status”. They contended the mainland territory appeared to be the most suitable territory for classification as a special protection area under article 4(2), and that further special conservation measures should have been considered, such as closing down the windfarm during whimbrel migratory or breeding months. They argued that reliance on climate change and economic balancing considerations was not legally permissible under article 2.

Respondents’ submissions

The Scottish Ministers submitted that the reference to maintaining the population in article 2 was subject to other considerations including economic and recreational requirements, involving a balancing exercise. Their primary submission in the Supreme Court was that the balancing considerations represented a “fall-back position” only relevant if the primary reasoning was rejected.

Judgment

Lord Carnwath, with whom Lord Neuberger, Lord Sumption, Lord Reed and Lord Hodge agreed, dismissed the appeal and confirmed the order of the Inner House.

The role of the ministers

The Court held that the Inner House was clearly right in its more limited view of the ministers’ role. The ministers’ functions derived not from the Birds Directive but from their statutory duty under the Electricity Act 1989. The directive was one of many material considerations and formed part of the legal background. The Lord Ordinary had erred in treating the directive as requiring a full review of functions and determination of an “appropriate level” for whimbrel as the starting point.

Adequacy of consideration of the directive

Although the decision letter did not expressly mention the directive, the detailed consideration given to SNH’s advice—which specifically referenced the directive’s provisions—left no serious doubt that it had been taken into account as part of the “obligations under EU environmental legislation” mentioned in the letter.

Article 4(2) and further special measures

Lord Carnwath qualified the Inner House’s reasoning by holding that the directive did not entirely “fall out of the picture” once impact on the whimbrel population was found not to be significant. If there had been evidence that the proposal might prejudice fulfilment of the ministers’ duties under the directive, that would have required consideration. However, the appellants’ suggestions about further SPA designation were unsupported speculation and had not been raised by any expert body or consultee during the process. The ministers were entitled to attach weight to the fact that the HMP would bring one third of the UK whimbrel population under active management.

Balancing considerations

The Court accepted the ministers’ interpretation that the references to climate change benefits represented a “fall-back position” only relevant if the primary reasoning was not accepted. Accordingly, it was unnecessary to resolve the difficult interpretive issue concerning the role of economic factors under article 2.

CJEU reference

The Court declined to make a reference. While acknowledging that the interpretation of article 2 raises some difficulties—including the role of economic factors and the obligations of member states regarding setting appropriate population levels—these issues did not require resolution for the decision in this case. A further reference might be appropriate in a case where resolution was necessary.

Implications

The decision clarifies the approach to be taken by decision-makers considering development consents where EU environmental directives, particularly the Birds Directive, form part of the legal background. The judgment confirms that the directive operates as a material consideration within the statutory consent process under the Electricity Act 1989, rather than imposing a freestanding requirement on the decision-maker to conduct a full review of compliance with directive obligations as a preliminary step.

The judgment also indicates that, although a finding that a proposal will have no significant impact on a protected species largely answers directive-based objections, the directive does not entirely cease to be relevant: evidence that a proposal might prejudice fulfilment of directive duties could still give rise to material objections. However, such concerns must be grounded in evidence and properly raised in the consultation process, not advanced as speculation in subsequent litigation.

The decision underlines the weight that decision-makers may legitimately attach to mitigation and habitat management measures, particularly where these offer broader conservation benefits beyond merely offsetting development impacts. It also leaves open important questions about the interpretation of article 2 of the Birds Directive—specifically concerning the role of economic and recreational factors and the obligation to set appropriate population levels—signalling that these may require resolution by the CJEU in a future appropriate case.

For developers, statutory consultees, and environmental groups, the case demonstrates the importance of raising specific directive-based concerns during the consultation process, as opposed to during judicial review. For administrative decision-makers, it confirms that an informed reader’s understanding of the decision letter, taken together with the consultation responses considered, can demonstrate compliance with directive obligations without express citation of the directive itself.

Verdict: Appeal dismissed. The Supreme Court confirmed the order of the Inner House, upholding the Scottish Ministers’ grant of consent for the windfarm.

Source: Sustainable Shetland v The Scottish Ministers & Anor (Scotland) [2015] UKSC 4