Scottish Court overrules approval of 457 MW wind facility - Decision

This count ruling issued by Lady Clark of Calton overturns the April 4, 2012 decision by the Scottish Ministers to grant consent for the construction and operation of a 103 turbine (maximum generating capacity of 457 megawatts) Viking Wind facility. The Judge found that the Ministers failed to properly interpret and followe the Wild Birds Directive 2009. An excerpt of comprehensive ruling explaining the court's interpetation of the Directive is provided below. The full decision by the court can be accessed by clicking on the link(s) at the bottom of this page.

The Wild Birds Directive 2009: Interpretation

[245] The interpretation of the Wild Birds Directive 2009 is a central issue in this case at least so far as the petitioners are concerned. I have attempted to interpret this Directive bearing in mind the various submissions put forward by counsel and which I have summarised above.

[246] Senior counsel for the interested party referred me to the European Commission proposal dated 20 December 1976, which predated the Wild Birds Directive 1979, 13/12 of process. I regard this as equivalent to draft legislation and the terms of the Directive as later implement were changed. I do not regard this as an instrument on which I can rely for authoritative guidance in interpreting the Wild Birds Directive 2009.

[247] It was not disputed that at the date of the decision letter, Articles 1 to 3 and 4(3) and (4) were not transposed into domestic legislation and were directly effective.

[248] The Directive sets out in paragraphs (1) to (1)8 of the preamble the various reasons and purposes underlying the Directive. Paragraphs (3) to (8) should be noted in the context of the present case. Concerns include "... the decline in numbers ..." "a cross border problem", "... the repercussions of man's activities and in particular the destruction and pollution of their habitats ....", "the need for scientific research to assess the effectiveness of conservation measures". Paragraph (8) states:

"The preservation, maintenance or restoration of a sufficient diversity and area of habitats is essential to the conservation of all species of birds. Certain species of birds should be the subject of special conservation measures concerning their habitats in order to ensure their survival and reproduction in their area of distribution. Such measures must also take account of migratory species and be coordinated with a view to setting up a coherent whole."

[249] Article 1 defines the scope and provides that the Directive "shall apply to all species of naturally occurring birds in the wild state ... their eggs, nests and habitats". In my opinion the scope of Article 1 extends beyond protection of habitats. The protected birds include all wild birds' species as defined. The Article is not limited to Annex 1 and 2 species but also does not exclude them. Annex 2 species includes whimbrel (numenius phaeopus) which is a regularly occurring migratory species.

[250] Article 2 provides:

"Member States shall take the requisite measures to maintain the population of the species referred to in Article 1 at a level which corresponds in particular to ecological, scientific and cultural requirements, while taking account of economic and recreational requirements, or to adapt the population of these species to that level."

[251] There was a significant dispute about the interpretation of Article 2. I was not entirely clear whether the respondents accepted that Article 2 involved an obligation to maintain the population of the species at a level as specified. If they did accept that, counsel for the respondents submitted that any obligation could be avoided or derogated from, as in this case, because it was "outweighed by the benefits of the development project including reasonable energy generation and the support this offers to tackling climate change and meeting EU climate change obligations". Counsel for the respondents made reference to a balancing exercise. In the course of that balancing exercise requisite measures to maintain the population might not be taken because some other factor such as energy production and climate change is given priority by the decision maker. In that situation counsel for the respondents submitted that the Member State would not be in breach of Article 2 because there were escape routes in Article 2 which entitled the decision maker to reach a decision which did not maintain the population of species as set out in Article 2. He submitted that all and any of the requirements ecological, scientific, cultural, economic and recreational could form part of this balancing exercise and result in a failure to maintain the population of the species to a level if those requirements were given more importance in the discretionary decision of the decision maker.

[252] Counsel for the interested party reached the same conclusion as counsel for the respondents, albeit she restricted the balancing exercise to economic and recreational requirements. She adopted the view expressed by the Law Commission in England and Wales to the effect that the Directive did not specify an absolute level of protection but allows a balance to be struck. Article 2 sets out a general objective which might not be achieved in a particular case because of economic and recreational requirements. She did not I think accept that ecological, scientific and cultural requirements related to the balancing exercise in deciding what, if any, measures are to be taken.

[253] The petitioners submitted that Article 2 was an obligation which required to be fulfilled, albeit the measures to fulfil the obligation involved discretionary choices as to how to fulfil Article 2 taking into account economic and recreational requirements.

[254] Let me comment firstly on the Law Commission Consultation Paper No 206 (13/15 of process), relied on by senior counsel for the interested party. The paper considers some of the circumstances where a specific level of protection is required by EU law.

[255] The Law Commission in chapter 2 of said paper gives a very useful overview of the international obligations placed on the domestic law of England and Wales as a result of either international agreements or EU law. These international law obligations are also applicable to Scotland and provide a context to the Wild Birds Directive as first promulgated, which is described by the Law Commission as the first piece of EU legislation specifically focussed on conservation following discussions and agreements at international level (paragraph 2.36).

[256] In paragraphs 2.40 - 2.90, there is a discussion of the Wild Birds Directive 2009 as consolidated and amended. The Law Commission recognises that habitats are relevant and included in the Wild Birds Directive but decided that was beyond the scope of their discussion paper. The Law Commission describe Article 2 as the "key obligation placed on Member States by the Directive". They state this allows a balance to be struck in the protection of wild birds, taking into account economic and recreational requirements in relation to the maintenance of a population level. There is no consideration given to issues which may arise such as whether a Member State is entitled to do nothing to maintain a particular species' population level because, for example, it is too expensive or allow a development project even if that results in a failure to maintain the population of the species to the required level because the project is considered to contribute to climate change targets.

[257] No reference is made by the Law Commission to R v Secretary of State for Environment exp RSPB [1996] ECR 1-3805, the Lappel Bank case. This case was the only case law to which I was directed by counsel which dealt with Articles 2 and 3. Senior counsel for the petitioners relied on the opinion of Advocate General Fennelly and the judgment of the Court of Justice in said case. He submitted that both supported his interpretation of the Wild Birds Directive 2009. There was detailed criticism of his approach by the respondents. Senior counsel for the respondents supported a different interpretation of the relevant provisions of the Directive. He submitted that the Advocate General's proposed distinction and interpretation cannot be maintained. His submissions on this point are summarised in paragraphs 46 to 53 of 26 of process, albeit it is also necessary to consider the submissions in paragraph 53 to 66 to understand their full context.

[258] In summary, the fundamental dividing line between the interpretation put forward by the petitioners compared with that advanced on behalf of the respondents and interested party is that the petitioners maintain that Article 2 sets down a common standard which requires to be met that the population of the species, in this case whimbrel, are to be maintained at a level which corresponds in particular to ecological, scientific and cultural requirements and that obligation rests on the State. In the context of devolution the respondents are responsible for implementation of the Directive. The petitioners submit it is not a balancing exercise of the type described by the respondents' counsel, and that the reference to taking into account economic and recreational requirements relates not to the standard which must be maintained but relates to the measures to be adopted. No fixed measures are specified. There is discretion in how Article 2 is to be implemented but not discretion as to whether it is to be implemented or not.

[259] In contrast, the respondents submit that the reference to maintaining the population in Article 2 is subject to other considerations (about which counsel for the respondents and interested party disagreed) but at a minimum included economic and recreational requirements. It is a balancing exercise. Counsel for the respondents submitted that in the balance which could be weighed against maintenance of the population, ecological requirements could be taken into consideration. This was the explanation given by counsel to explain the way in which the respondents had approached the issues in the case. The final position of the respondents was to say in effect that wind farm energy production contributing to climate change targets out-balanced or outweighed "the obligation" of maintaining the population of whimbrel to the level specified in Article 2. It should be noted that this is a reference to the reason given by the respondents at page 11 of the decision letter, 6/4 of process.

[260] I accept that in the Lappel Bank case, Advocate General Fennelly was not focussing directly on Article 2 but was seeking to interpret the obligations of Member States under Article 4. In considering that issue however, he adopted a purposive interpretation of the Directive and considered in detail the interrelationship of the various Articles in context. He is clearly of the view that the proper interpretation of Article 2, for the reasons he gives, is that the consideration of economic and recreational issues comes in at the stage of implementation measures and not at the stage of maintaining the standard set down in Article 2.

[261] I accept that the Court of Justice in the Lappel Bank case in considering the reference was also focussing on Article 4. But, as I read the judgment, particularly in paragraphs 24 and 25, the court accepted the analysis clearly set out by the Advocate General.

[262] Advocate General Fennelly at paragraph 15 describes Article 2 as one of the central provisions. At paragraph 29, he refers to the view expressed by the United Kingdom government that the Directive must be viewed within an economic and not a solely ornithological context. The said submissions put forward on behalf of the UK government were not upheld in that case. In dealing with the particular issue of the interpretation of Article 4, the Advocate General stated in paragraph 40 that "in order to answer the question in relation to Article 4, it will be necessary to interpret Article 2 of the Directive and examine its application to the habitats provisions of the Directive, Articles 3 and 4. There then follows a detailed analysis of the United Kingdom government's position in the case.

[263] From paragraph 45 onwards, the Advocate General deals with the history and context of the Wild Birds Directive. He concludes that the context of the Directive is predominantly ecological, even if it takes account of economic considerations in certain circumstances. At paragraph 51 he states:

"The general scheme of the Directive is based on a series of carefully graduated obligations and prohibitions which are phrased in sweeping terms, but which are accompanied, where appropriate, by express exceptions and derogations to which the Member States may resort, only under the conditions specified in each case."

At paragraph 54 he considers that the Directive has itself established the requisite balance between economic and ecology issues. He refers to the view of the United Kingdom to the effect that the fixing of the balance as regards habitats protection for all species of wild birds is left to the Member State. He comments that in support of this view the United Kingdom relies primarily on the text of Article 2 as interpreted by the court, and on the extent of the discretion enjoyed by Member States, respectively under Article 3. This submission of the UK is rejected by the Advocate General. He concludes that the Directive itself fixes the population level which Member States must maintain or achieve. He emphasises in paragraph 57 that Member States are to take account of economic and recreational requirements in the measures they adopt in accordance with the Directive to attain these levels. He discounts a literal construction of Article 2 in paragraph 58. He deals with the interpretation of Article 2 and the case law in paragraph 59. He rejects the United Kingdom's interpretation of the case law in paragraph 60.

[264] In my opinion the interpretation and analysis put forward to me on behalf of the respondents and interested party do not give sufficient weight to the significance and reasoning in the opinion of the Advocate General and more generally to the purpose of said Directive. I do not accept that the court departed from the opinion of the Advocate General. The judgment followed the reasoning of the Advocate General, albeit the focus of the court was on Article 4.

[265] So adopting a purposive interpretation, what does Article 2 mean? In my opinion it imposes an obligation "to maintain the population of the species" at a level as specified in Article 2. The alternative obligation in Article 2 is to adapt the population of the species to said level. Article 2 is directed to numbers in the sense of population of the species and not at habitats, albeit one of the many concerns re population levels may be habitats. I merely comment in passing that what that level is supposed to mean in terms of Article 2 may cause some difficulty of interpretation and may be the subject of factual dispute. To maintain the population of species or to adapt to the level is the obligation. Bearing in mind the preamble, I consider that this is to be interpreted as a reference to a conservation level where the particular wild birds species has sufficient numbers to be capable of survival and reproduction in the Member State or more particularly in their area of distribution in the Member State. In this particular case it does not matter which interpretation is adopted as 95% of the population of whimbrel in the Member State are in Shetland. In my opinion it is no answer to Article 2 to say that the particular species of bird is in very large numbers elsewhere outwith a Member State. I also observe that the wording "to maintain" is, in my opinion, directed to the present situation not the distant future. It may be that reducing the effects of climate change may have a long-term beneficial effect on population numbers. That was the hypothesis put to me by the respondents. But in my opinion pursuing that objective does not in my opinion fulfil Article 2 if nothing is done to maintain the population of the species in the present. In my opinion Article 2 is intended to oblige Member States to take requisite measures to achieve the population level of the species as intended in the Directive. There is a recognition in Article 2 that Member States may differ in how they achieve the level. That explains why discretion is given to Member States to take into account economic and recreational requirements which may vary. As I interpret Article 2, there is a level enshrined in an obligation. It does not mean that Member States have a "let out clause" or some form of derogation so that an individual Member State, citing economic or recreational requirements or something else, can avoid taking the requisite measures to achieve the level. The measures taken to achieve that may vary as Members States are given discretion as to how to achieve the level. In my opinion Article 2 is more than an aspiration. It is not merely a general provision to be fulfilled by a Member State by carrying out obligations in other Articles in the Directive. It is not an obligation which can be avoided or circumvented because a Member State gives greater weight or importance to other considerations.

Court Ruling Sustainable Shetland

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SEP 24 2013
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