THE CONSTRUCTION of a controversial 103-turbine wind farm in Shetland looks set to become a reality after the highest Scottish court ruled in the government’s favour.
Last September grassroots protest group Sustainable Shetland won its legal challenge against the Scottish Government after Lady Clark of Calton ruled its decision to grant planning consent for the Viking Energy project was incompetent.
She said the government had not paid enough regard to the European Birds Directive when judging the impact the project would have on the whimbrel, a rare wading bird.
But on Wednesday the Inner House of the Court of Session upheld Scottish ministers’ appeal against Lady Clark’s ruling – clearing the way for the project to go ahead more than two years after planning consent was granted.
Lord Brodie delivered the categorical verdict, taken by three of Scotland's most senior judges, that ministers acted lawfully in granting the project consent and that there was no breach of the birds directive. You can read the judgement in full here.
Developer Viking Energy said it was “pleased” that energy minister Fergus Ewing’s decision in April 2012 “has been vindicated today and we can now move on”.
Viking Energy Shetland chairman Alan Bryce said: “We believed the consent decision would stand up to the closest scrutiny and this outcome validates our position that this project can benefit the local and wider environment.
“The potential for substantial economic and environmental benefits for Shetland means that Viking Energy is in this for the long haul and we continue to look forward to advancing our plans to build what could become the world’s most productive wind farm and a crown jewel of Shetland’s economy.”
Viking Energy is a 50:50 partnership between Viking Energy Shetland (VES) and SSE Viking Ltd, a subsidiary of energy giant SSE. VES is 90 per cent owned by Shetland Charitable Trust and 10 per cent owned by four of the Burradale wind farm owners.
The decision will come as a bitter blow to members of Sustainable Shetland, which raised a six-figure sum in order to take its battle to stop the wind farm to the highest court in Scotland.
Its vice chairman James Mackenzie said the group was “disappointed that it has gone in the ministers’ favour”.
“We didn’t expect for the competency issue going our way, and we didn’t challenge that anyway, but we had hoped that the birds directive would have gone our way,” he said.
“I haven’t studied the legal argument closely to say more, but our options now depend on the legal advice we are getting, and also on consulting our committee and our membership at large.
“We are still opposed to this development and we would not have done all this without the support of the membership and many other people who have been so generous”.
In a recent opinion column Mackenzie said that there was a possibility that the case could well go to the UK Supreme Court or the European Court of Justice.
Due to a cost restriction order granted in 2012, the group is now expected to pay only £5,000 of the Scottish Government’s legal costs as well as its own.
Sustainable Shetland has 42 days to decide whether to challenge the decision.
SCT chairman Bobby Hunter said the judgment was a “clear, concise” one which “dismissed all the grounds on which the previous decision was based with real finality” and suggested any appeal would have “little, if any, chance of success”.
“I cannot see any basis on which this business could be taken any further,” Hunter said, adding he hoped everyone in the islands would “work together to help ensure the future of the trust, and bring the Viking project to fruition”.
SCT investment chairman Drew Ratter said that until Wednesday’s decision he had feared the trust “might not end up being part” of the wind farm scheme.
“The legal delays have already caused real problems for the charitable trust and any more legal actions would seriously threaten the trust’s investment,” he said. “That could have meant that hundreds of millions of pounds that could be used for Shetland’s benefit might go instead to some commercial company in the south.”
Hunter said the outcome helped protect the trust’s £10 million investment in the project, and the prospect of “handsome profits” would allow trustees “to start now making serious plans for a much brighter future”.
“For the past few years the trust has had to cut its spending because of reduced income and we have had to, and will have to, make some very difficult decisions,” he said.
“We are already contemplating having to cut our annual spending further causing problems for all the people we support, especially the amenity, arts and recreational trusts, the voluntary sector and our contribution to care of the elderly.
“Without a major new source of income these cuts will only get worse. This will happen unless the trust gets a significant new source of income – and the only choice I see is from Viking Energy.”
Shetland MSP Tavish Scott said he felt it was time for the community to “move on” from the divisions caused by a project which has polarised opinions.
“I think the best way to achieve a way forward is for this verdict to be carefully considered by those who are principally against the Viking project,” Scott said.
“I hope they will reflect on the clarity of the decision and accept that. I think they also need to weigh up the cost burden of taking any further legal action.”
The MSP said most islanders, including “the great majority of those who are against Viking”, believed in the importance of producing green energy, and added: “We can find more that we agree on than we have done in the past now that this judgement has been given.”
The decision will boost the SNP government’s aspiration to turn the country into the green energy powerhouse of Europe.
A consortium formed to develop a separate wind farm project in Unst and Yell also welcomed the ruling.
Energy Isles Ltd director Derek Jamieson said the Viking project would pave the way for additional renewables projects to benefit Shetland communities and deliver “much-needed income and employment to remote areas which are not benefiting from the current economic boom” in the islands.
Jamiseon said: “The Energy Isles project – along with the proposed tidal turbine bridge between Unst and Yell – has already won a lot of support in the North Isles.
“It seems clear from the appeal judges’ ruling that the Viking windfarm will be built. It is our opinion that this will be to the long term benefit of Shetland.”
A government spokesman said the 457 megawatt project would play a “crucial part in triggering the installation” of a proposed 600 megawatt subsea cable connecting Shetland to the UK National Grid, enabling it to export electricity to the mainland.“
Establishing this infrastructure will also be a great incentive to other energy technologies being developed on the island,” the spokesman said, adding today’s decision “allows work to begin towards delivering this wind farm project”.
“Ministers are pleased to note that the courts have confirmed applications may continue to be accepted from parties who do not hold a generation licence at the time of application,” the spokesman said.
“We also welcome that the courts have confirmed that the Scottish ministers’ decision was lawful and that they had proper regard to the likely impact of the grant of consent on wild bird populations. This is welcome news for the renewables industry in Scotland.”
The spokesman added that the wind farm was forecast to bring £566 million of capital spending and an annual income of around £30 million a year to the islands.