Windfarm judicial review: Declining wading bird population takes centre stage

The whimbrel, a migratory wading bird, took centre stage on the first day of the legal challenge against the Scottish government decision to approve Viking Energy’s 103 turbine windfarm.

A long-awaited judicial review into the government’s approval of the controversial project got underway at the Court of Session in Edinburgh this morning. It is due to continue until Friday.

Protest group Sustainable Shetland, which lodged a petition last summer, was represented by Sir Crispin Agnew QC. He argued that the “section 36” consent was granted unlawfully because the application’s approval did not comply with the government’s obligation under the EU Birds Directive.

Sir Crispin contended that, rather than waving through the project with the removal of 24 turbines last April, energy minister Fergus Ewing should have ordered a public inquiry.

He said the minister had deemed energy production to take priority over environmental concerns in deciding to back the windfarm.

Sir Crispin said that was “a matter of judgement” for the government, but its energy policy had to take into account the need to preserve the environment: “One does not trump the other”.

Much of the first day’s legal argument focused on the windfarm’s potential impact on whimbrels. That concern was also behind Scottish Natural Heritage (SNH) objecting to the development. 

Its objection was “due to the high likelihood of a significant adverse impact of national interest on the favourable conservation status of the national population of whimbrel”.

Shetland provides a breeding ground for around 95 per cent of the UK’s declining whimbrel population. Sir Crispin said it was estimated that around 30 per cent fall within the proposed area of the windfarm.

SNH estimated that on average 3.7 whimbrel would be killed each year due to the Viking Energy turbines. Despite drawn out negotiations in 2010 and 2011, Viking Energy and SNH were unable to reconcile their differences.

Sir Crispin said it was common for SNH to object at a project’s outset before reaching a compromise. But it was “quite rare” for the body to maintain its objection as it had done with Viking Energy.

Though accepting SNH’s estimate of the number of whimbrel likely to be killed each year, the ministerial decision stated: “In numerical terms, the estimated mortality rate of only 3.7 fatalities per year is very small and must be considered in the context of annual deaths, estimated at between 72-108…per year from other causes, including predation.”

Sir Crispin said the whimbrel was a “little studied” species and very little was known about its population dynamics. That made it “difficult, if not impossible”, to predict the precise impact such a huge windfarm would have on the species.

SNH said that Viking Energy’s strategy to mitigate the impact relies heavily on its expansive habitat management plan. While welcoming the “intent and ambition” of that plan, the organisation had “significant concern” about its viability and “cannot assume [it] will be successful for all interests”.

Sir Crispin said the government had failed to explain what information it had received to contradict the advice of SNH. It had “just said that the habitat management plan will be successful”.

Later in the week government QC Malcolm Thompson will respond to Sustainable Shetland’s arguments. Viking Energy has also chosen to represent itself, and it will have the opportunity to respond to the points raised.

The government insists it did not act unlawfully by not ordering a public inquiry. It also says it took proper account of its obligations under the Birds Directive in relation to the impact on whimbrel.

Four days have been set aside for the judicial review, which is being overseen by Lady Clark of Calton. It could be several weeks before she gives her ruling.

The hearing continues.