Sustainable Shetland for Judicial Review of a decision of The Scottish Ministers dated 4 April 2012, 24 September 2013 – Ministers not entitled to grant consent for wind farm where developer does not have licence to generate electricity

Outer House case considering a petition brought by Sustainable Shetland for judicial review of the Scottish Minister’s decision to grant planning permission to Viking Energy Partnership for a 103 turbine wind farm development on a site of approximately 50 square miles on mainland Shetland.

When considering the relevant statutory provisions[1], it was discovered that Viking did not hold a licence to generate electricity. On a construction of the provisions, Lady Clark found that it was not open to the Ministers to grant consent for the building of the wind farm to persons who were not licence holders or exempt persons[2] in terms of the legislation.

Lady Clark also concluded that there was merit in Sustainable Shetland’s argument that there had been a failure on the part of the Ministers to take proper account of their obligations under the Wild Birds Directive 2009[3], finding that they had failed to properly engage with the directive in any meaningful way when reaching their conclusion.

However, Lady Clark rejected Sustainable Shetland’s arguments relating to the need for a public enquiry finding that, on reading the Ministers’ decision letter as a whole, the Ministers had considered that they had sufficient information to come to a conclusion without holding a public enquiry and Sustainable Shetland had failed to demonstrate that the Ministers were not entitled to reach that conclusion.

The full judgement is available from Scottish Courts here.

(NB: See appeal to Inner House  and further appeal to the Supreme Court here. See also related decision in relation to intervention by interested parties and Trump International v Scottish Ministers).

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

[1] In particular s36 (which deals with the consent required for construction of generating stations) and Schedule 9, Para 3 (which deals with the preservation of amenity and fisheries in Scotland) of the Electricity Act 1989.

[2] Persons exempt from the requirement (under s4 of 1989 Act) to obtain a licence before generating, transmitting, distributing or supplying electricity.

[3] Directive 2009/147/EC.

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