THE Scottish government has failed to take proper account of its obligations under a key piece of European nature legislation when it gave the go-ahead for the 103 turbine Viking Energy wind farm.
In her judgement following a lengthy hearing before the Court of Session earlier this year, Lady Clark of Calton said on Tuesday the government had not “meaningfully engaged” with the Wild Birds Directive 2009.
Campaign group Sustainable Shetland had challenged Scottish Ministers who granted consent to the 457 megawatt wind farm in April last year.
Lady Clark also found that consent should not have been given to Viking Energy Partnership, as the applicant had no licence to generate electricity.
In her 133 page judgement, Lady Clark of Calton said: "I am not satisfied that the respondents (the ministers) have complied with their obligations under the Wild Birds Directive 2009.
"This case involves a very large, multimillion pound development with important consequences.
"It is plain that this is a case in which it appears not to be disputed by anyone that whimbrel are a declining species in the UK with approximately 95 per cent of 290 breeding pairs in Shetland.”
Neither Sustainable Shetland nor Viking Energy were able to give a detailed response to Lady Clark’s complex judgement.
Both said they would comment further in due course.
Sustainable Shetland said they were pleased with Lady Clark of Calton’s ruling “that Scottish Ministers had not meaningfully engaged with the EC Birds Directive in making their decision to grant consent for the Viking Energy wind farm.
“We will be discussing the implications of this decision with our legal team.
“We would like to thank our legal team for all their hard work, and all our members and supporters for their unfailing encouragement and financial generosity throughout this challenging process,” a spokeswoman said.
In a statement Viking Energy said: “We need to consider today’s 130-page judgment carefully and obviously we await the reaction of the Scottish Government, since they are the main party to it.
“We will continue taking appropriate steps on this project to maintain our positive momentum and we remain committed to what we believe is a once-in-a-lifetime opportunity to bring the many economic and environmental benefits of a renewable energy industry to Shetland.
“Indeed, both the UK and Scottish Governments have recently demonstrated that they are keen to make the Viking Wind Farm happen with their proposed financial uplift to support Scottish island projects.”
A spokesman for the Scottish government added: "We have received Lady Clark of Calton’s judgement in relation to the petition lodged by Sustainable Shetland for the Judicial Review of the Scottish Ministers’ decision to grant consent to construct and operate the Viking wind farm in Shetland.
"Scottish Ministers note Lady Clark’s judgement and will now consider it and its implications.”
The full ruling can be found at: http://www.scotcourts.gov.uk/opinions/2013CSOH158.html