OPINION OF THE COURT DELIVERED BY LORD BRODIE IN THE RECLAIMING MOTION IN PETITION SUSTAINABLE SHETLAND AGAINST THE SCOTTISH MINISTERS AND VIKING ENERGY PARTNERSHIP FOR JUDICIAL REVIEW [2014] ScotCS CSIH_60 (09 July 2014)

OPINION OF THE COURT DELIVERED BY LORD BRODIE IN THE RECLAIMING MOTION IN PETITION SUSTAINABLE SHETLAND AGAINST THE SCOTTISH MINISTERS AND VIKING ENERGY PARTNERSHIP FOR JUDICIAL REVIEW [2014] ScotCS CSIH_60 (09 July 2014)

The Court held that section 36 consent under the Electricity Act 1989 can be granted to an applicant who does not hold a generation licence or exemption, as licensing and consent are separate regimes. The Scottish Ministers lawfully exercised their discretion and complied with their obligations under the Wild Birds Directive, having considered the relevant environmental information and the likely impact on the whimbrel population. The Ministers' reasoning was adequate and their decision was not unlawful.

Citation
[2014] ScotCS CSIH_60
Parties
Petitioner and Respondent: Sustainable Shetland; Respondent and Reclaimer: The Scottish Ministers; Interested Party: Viking Energy Partnership
Jurisdiction
Scotland
Judgment Date
09 July 2014
Procedural Posture
Judicial Review / Reclaiming Motion (appeal) From Decision of Lord Ordinary
Outcome
Reclaiming motion allowed; interlocutor of Lord Ordinary recalled; cross-appeal refused; petition dismissed.
Legal Topics
Electricity Act 1989 Section 36 Consent, Wild Birds Directive Compliance, Judicial Review of Ministerial Decisions, Environmental Impact Assessment, Planning Permission for Wind Farms
Administrative Law Environmental Law Planning Law EU Law Electricity Act 1989 Section 36 Consent Wild Birds Directive Compliance Judicial Review of Ministerial Decisions Environmental Impact Assessment +1 more

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Parties

Sustainable Shetland

Petitioner and Respondent

The Scottish Ministers

Respondent and Reclaimer

Viking Energy Partnership

Interested Party

Procedural Posture

Judicial Review / Reclaiming Motion (appeal) From Decision of Lord Ordinary

Legal Issues

  1. 1 Whether section 36 consent under the Electricity Act 1989 can be granted to an applicant who does not hold a generation licence or exemption
  2. 2 Whether the Scottish Ministers complied with their obligations under Directive 2009/147/EC (Wild Birds Directive) in relation to the whimbrel population when granting consent for the wind farm

Ratio Decidendi

The Court held that section 36 consent under the Electricity Act 1989 can be granted to an applicant who does not hold a generation licence or exemption, as licensing and consent are separate regimes. The Scottish Ministers lawfully exercised their discretion and complied with their obligations under the Wild Birds Directive, having considered the relevant environmental information and the likely impact on the whimbrel population. The Ministers' reasoning was adequate and their decision was not unlawful.

Court Disposition

Reclaiming motion allowed; interlocutor of Lord Ordinary recalled; cross-appeal refused; petition dismissed.

Orders

  • Recall the interlocutor of the Lord Ordinary.
  • Refuse the cross-appeal at the instance of Sustainable Shetland.