Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 103

 

P28/15

 

OPINION OF LORD STEWART

in the Petition of

THE ROYAL SOCIETY FOR THE PROTECTION OF BIRDS

Petitioner;

for

Judicial Review of (1) a decision of the Scottish Ministers dated 10 October 2014 granting consent for the construction of the Inch Cape Offshore Wind Farm in terms of the Electricity Act 1989 section 36 and (2) a consent decision of the Scottish Ministers dated 15 September 2014 for the Inch Cape Offshore Wind Farm in terms of the Marine Works (Environmental Impact Assessment) Regulations 2007 reg. 22

and Answers for

THE SCOTTISH MINISTERS

                                                                                                                        Respondents;

and

 

INCH CAPE OFFSHORE LIMITED

                                                                                                                        Interested Party

 

Petitioner: James Findlay advocate, Laura-Anne van der Westhuizen advocate; Campbell & McCartney solicitors

Respondents: Mure QC, Ruth Charteris advocate; Scottish Government Legal Directorate

Interested party: Thomson QC; CMS Cameron McKenna solicitors

 Seagreen Wind Energy Limited: Ailsa Wilson QC, Marcus McKay advocate; Gillespie Macandrew LLP

Neart na Gaoithe Offshore Wind Limited: MacKenzie solicitor advocate; Shepherd & Wedderburn LLP

 

18 July 2016

 

[1]        This is a challenge directed at two of the several decisions by the Scottish Ministers which together give, or support authorisation for a marine electricity generating project to be known as the Inch Cape offshore wind farm. The Inch Cape offshore wind farm is proposed to be sited in the approaches to the Tay estuary about fifteen kilometres, at the nearest point, from the Angus coast. The consented proposal is for 110 turbines arrayed in an area of 150 kms² with a generating capacity of 784 MW. The estimated life of the generating station is 25 years.

[2]        The challenge is brought by way of Petition for judicial review. The petitioner is the Royal Society for Protection of Birds, Scotland [“the RSPB”]. The objects of the RSPB are the conservation of wild birds and their habitats. The RSPB has concerns about the Inch Cape project and three other offshore wind farm projects in the Forth and Tay area. The main concerns relate to the impact on certain regularly occurring migratory wild bird species and their protected habitat populations. The species are, most importantly, Atlantic puffin (fratercula arctica), northern gannet (morus bassanus) and black-legged kittiwake (rissa tridactyla). Impacts on guillemot (uria aalge) and razorbill (alca torda) have also been mentioned.

[3]        The risks to these species arise, to different degrees, from collision, displacement and barrier effects.  “Collision”, that is with wind turbine rotors in motion, equates with mortality.  “Displacement” means the displacement of birds from foraging areas within projected development sites.  “Barrier effects” signifies the avoidance of developments in flight, including on foraging flights to and from breeding colonies.  Displacement and barrier effects may entail extra energy costs and consequences for body mass, adult survival, nest attendance and chick provisioning. The habitats and hosted species of greatest importance for present purposes are Forth Islands (Inchmickery, May, Fidra, the Lamb, Craigleith, Bass, Long Craig) with two kilometre marine extensions, which hosts puffin, gannet, kittiwake, guillemot and razorbill colonies, and Fowlsheugh, a 10 hectare site on the Angus coast south of Stonehaven with a two kilometre marine extension, which hosts kittiwake, guillemot and razorbill colonies.

[4]        Forth Islands and Fowlsheugh are classified as special protection areas [SPAs] for the conservation of the bird species populations mentioned, in terms of the Birds Directive and the Habitats Directive [originally the Birds Directive 79/409/EEC now the Birds Directive 2009/147/EC etc on the conservation of wild birds; the Habitats Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora].  Forth Islands SPA was first classified on 25 April 1990; the site was extended to include Long Craig on 13 February 2004; and the marine extensions took effect on 25 September 2009.  Fowlsheugh SPA was classified on 31 August 1992; and the marine extension took effect on 25 September 2009 [6/40; 6/41]. The habitats are part of the network of “Natura 2000” SPAs and special conservation areas [SCAs] designated as being sites of European importance in terms of the Habitats Directive 92/43/EEC art. 3(1).  The conservation objectives of each of the SPAs, as defined by Scottish Natural Heritage, include “ensuring the long-term maintenance of the population of each qualifying bird species as a viable component of the SPA” [6/4, Appropriate Assessment, 7, § 1c, “Conservation objectives for qualifying species”; 6/37, affidavit of C Nathan].

[5]        In these proceedings the key environmental issue in terms of the applicable legislation is about the effects, on protected site populations, of the Inch Cape project “either alone or in combination with other... projects”.  The other offshore wind farm projects of primary concern are Seagreen Alpha, Seagreen Bravo and Neart na Gaoithe, the latter meaning, according to the developers, “power of the wind” [cf. Neart nan Gleann, “power from the glens”, the motto of the old North of Scotland Hydro Electric Board].  The Seagreen wind farms are proposed to be sited in the approaches to the Tay estuary 25 kilometres from the Angus coast.  The Neart na Gaoithe wind farm is proposed to be sited in the approaches to the Forth estuary about fifteen kilometres east of Fife Ness.  The scale of the projects is illustrated in various ways. Counsel for Neart na Gaoithe states that the 75 turbines now proposed for that project will have the capacity to generate electricity for all the homes in Edinburgh, 325,000 households.  The proposed wind farm combined arrays of 335 turbines generating up to 2.3 GW, all projects [6/4, table 1], would stretch, although not continuously, for a distance of about 45 kilometres south to north.  According to Scottish Natural Heritage the visual impact will be apparent from Dunbar in the south to St Cyrus in the north. The authorisations for those other projects are challenged by the RSPB in separate petitions on similar grounds.  The Scottish Ministers are the respondents to all four petitions. The Inch Cape, Seagreen Alpha and Bravo, and Neart na Gaoithe developers answer the respective petitions as interested parties. There is a location map between pages 4 and 5 of the hard copy Opinion showing the locations of the Fowlsheugh and Forth Islands SPAs, the locations of the Inch Cape, Seagreen Alpha, Seagreen Bravo and Neart na Gaoithe projects and the area covered by and boundaries of the draft Forth & Tay marine special protection area.  A colour PDF of the location map can be found here.    

[6]        I heard oral submissions on behalf of the RSPB, petitioner, the Scottish Ministers [“the ministers”], respondents, and on behalf of the interested parties in this case, Inch Cape, and the interested parties in the other cases, Seagreen, in respect of their two projects Alpha and Bravo, and Neart na Gaoithe.  This happened in a conjoined hearing over eight days from 28 May to 5 June 2015 with further written submissions being received, by agreement, up to 7 July 2015.  The order in which I have just listed the interested parties is not the order in which they made representations at the hearing.  I am treating the petition directed against the Inch Cape project decisions as the lead petition because, at the hearing, parties worked from the Inch Cape pleadings and the Inch Cape decision documents [P28/15, 6/1—6/4]; and that is why I have listed Inch Cape as the first of the interested parties.  I was told that the Inch Cape material is representative.  The pleadings in the Inch Cape case alone amount to 105 pages.  The list of authorities cites 114 legislative instruments, case reports and guidance documents.  I was referred by parties to an additional case report, R (on the application of Champion) v North Norfolk DC [2015] 1 WLR 3710, by email on 22 March 2016.  There was also email correspondence about the case European Commission v Bulgaria (Kaliakra and Belite Skali) (C‑141/14) ECLI:EU:C:2016:8, 14 January 2016, which concluded with the parties’ email of 6 May 2016. There are 192 pages of written argument.  All parties adopted their written notes of argument in oral submissions.  Having made avizandum on the whole submissions, oral and written, I have now decided to grant the petition and to reduce the decisions complained of so that the decisions can be re-made properly. There are separate Opinions in the other cases, also issued today. The result is the same.

 

The applications, the processes and the decisions

[7]        The wind farm projects need three kinds of authorisation, namely a declaration in terms of the Electricity Act 1989 (as amended) section 36A as respects rights of navigation through the project in question; two marine licences in terms of the Marine (Scotland) Act 2010  section 21 etc, for the wind farm itself and for associated transmission works offshore respectively, to permit depositing substances and objects, and constructing works, in the sea; and a consent in terms of the Electricity Act 1989 section 36 for the construction and operation of “a generating station”.

[8]        Inch Cape made two sets of applications for the authorisations with a view to splitting the project at some future date into two entities. The applications were processed and granted as one set on the basis that permission to assign authorisations for all or part of the project can be applied for in future. In relation to each type of authorisation I shall refer to “the application” singular.

 

Electricity Act 1989 s. 36A declarations
[9]        The application as respects navigation rights in terms of the Electricity Act 1989 (as amended) section 36A and the declaration which followed are non-contentious in these proceedings and I shall not mention them again.

 

Marine (Scotland) Act 2010 s. 21 licences and Marine Works EIA Regulations assessment

[10]      The application for marine licences in terms of the Marine (Scotland) Act 2010 section 21, accompanied as it was by Inch Cape’s environmental statement, launched an environmental impact assessment in terms of the Marine Works (Environmental Impact Assessment) Regulations 2007 [“Marine Works EIA Regulations”]. That process in turn and in conjunction with the Electricity Act 1989 section 36 process triggered a habitats regulations appraisal in terms of the Conservation (Natural Habitats etc) Regulations 1994, applicable to the inshore region, and the Offshore Marine Conservation (Natural Habitats etc) Regulations 2007, applicable to the offshore region [“the Habitats Regulations”]. Although the Marine Works EIA Regulations reg. 22 environmental impact consent decision is contentious, it is not the focus of this Opinion. [1]

 

Electricity Act 1989 section 36 consent and Electricity Works EIA Regulations assessment

[11]      The focus of this Opinion is the application for a consent in terms of the Electricity Act 1989 section 36 for the construction and operation of a generating station. That application, accompanied as it was by Inch Cape’s environmental statement—the same environmental statement supports both the Marine Works application and the Electricity Works application— launched an environmental impact assessment in terms of the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2000 as amended by the Electricity Works (Environmental Impact Assessment) (Scotland) Amendment Regulations 2008 [together “the Electricity Works EIA Regulations”].  That process in turn and in conjunction with the Marine Works EIA Regulations process triggered the habitats regulations appraisal in terms of the Habitats Regulations.

 [12]     There is a difference between an environmental impact assessment in terms of the Marine Works EIA Regulations and an environmental impact assessment in terms of the Electricity Works EIA Regulations.  In the first case there has to be a substantive environmental impact assessment decision in terms of the Marine Works EIA Regulations reg. 22 and, unless there is such a decision in positive terms, that is an environmental impact assessment consent decision, the ministers cannot grant the marine licences in terms of the Marine (Scotland) Act 2010 section 21.  In the second case the ministers are prohibited from granting the Electricity Act 1989 section 36 consent unless “they have taken into consideration the environmental information” in terms of the Electricity Works EIA Regulations.  Accordingly there is a separate environmental impact consent decision supporting the decision on the Marine (Scotland) Act 2010 section 21 licences application whereas the consent decision on the Electricity Act 1989 section 36 application simply, but crucially, narrates that: “The Scottish Ministers have taken into consideration the environmental information… ” [6/4, 26].

 

Conservation (Natural Habitats etc) Regulations 1994 etc “appropriate assessment”

[13]      As already stated both applications together triggered a habitats regulations appraisal.  “Habitats regulations appraisal” or “HRA” can mean different things.  A full habitats regulations appraisal in the sense in which it is used here, in accordance with widespread administrative guidance and practice, is a five-stage process.  It starts with the issue whether the project is directly connected with or necessary for the management of a European site.  If the project is unconnected or unnecessary, the next stage is to ask whether the project is “likely to have a significant effect” on [susceptible d’affecter] the site—in this case the Forth Islands and Fowlsheugh SPAs among others—either alone or in combination with other plans or projects.  If the answer is “yes” as to significant effects then, at stage three, there has to be an “appropriate assessment” of the implications for the site in view of the site's conservation objectives.  Stage four is the development authorisation stage: the project cannot be approved unless the assessment gives certainty to the decision-maker—a concept discussed below—that the project will not affect the integrity of the site.  At a fifth stage, notwithstanding a negative assessment, the competent authority may on certain conditions agree to a project for imperative reasons of overriding public interest [Conservation (Natural Habitats etc) Regulations 1994 (as amended) regs. 48 and 49;  Offshore Marine Conservation (Natural Habitats etc) Regulations 2007 regs. 25 and 26].  The appraisal in this case did not go to stage five because the assessment at the third stage was favourable, thus opening the way for the ministers to authorise the projects, which they did.  A single, regional “appropriate assessment” was carried out to address the individual effects of the Inch Cape project and the other Forth and Tay projects referred to above and the in-combination effects of the Forth and Tay projects and two other more remote projects, already consented. No further mention needs to be made of the more remote projects.

[14]      The European source legislation is the Habitats Directive 92/43/EEC, art. 6(3), which provides:

“Any plan or project not directly connected with or necessary to the

management of the site but likely to have a significant effect thereon, either

individually or in combination with other plans or projects, shall be subject

to appropriate assessment of its implications for the site in view of the site’s

conservation objectives. In the light of the conclusions of the assessment of

the implications for the site and subject to the provisions of paragraph 4, the

competent national authorities shall agree to the plan or project only after

having ascertained that it will not adversely affect the integrity of the site

concerned and, if appropriate, after having obtained the opinion of the general

public.”

 

 

In Champion Lord Carnwath pointed out that article 6(3) of the Habitats Directive 92/43/EEC actually makes express mention of only two  formal stages: the first sentence of article 6(3) provides for an “appropriate assessment” and the second sentence makes provision for development authorisation following evaluation of the “appropriate assessment” [R (on the application of Champion) v North Norfolk DC [2015] 1 WLR 3710 at §§ 34—41 per Lord Carnwath with whom the other members of the Supreme Court agreed]. In describing this two-stage process in terms of article 6(3), Lord Carnwath followed the analysis of the Court of Justice in Sweetman [Sweetman v An Bord Pleanála (C-258/11) ECLI:EU:C:2013:220, [2014] PTSR 1092 at §§ 29—31].

[15]      The jurisprudence has implied another stage into the first sentence of article 6(3), using a variety of wording.  Waddenzee refers to “a preliminary assessment” and “a preliminary examination”, being the examination to determine whether an “appropriate assessment” is required.  Confusion arises from the fact that the English-language version of the advocate general’s opinion in Wadenzee refers to the preliminary examination as an “assessment”, to the “appropriate assessment” as an “assessment” and to the initial step in the development authorisation as an “assessment” [Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en Visserij (Waddenzee) (C-127/02) [2004] ECR I-07405, [2005] 2 CMLR 31 at §§ AG66, AG67, AG80, AG102, AG107, AG108, §§ 34, 38, Order, 2].  In Sweetman the advocate general referred to a “first stage”, involving the question: “Should we bother to check?”  This is the same as the Waddenzee preliminary assessment or preliminary examination stage, “which operates as a trigger, in order to determine whether an appropriate assessment should be undertaken”. The advocate general then referred to a “second stage” which bundles together the “appropriate assessment” and the development authorisation:  her taxonomy was not followed by the Court of Justice [Sweetman at §§ AG49, AG50, AG57, AG68—AG71, §§ 29—31].  In Smyth Sales LJ referred to “the first limb” and “the second limb” of article 6(3), the first limb being described as “the screening opinion” or “preliminary check” stage, the same as the “preliminary assessment”, “preliminary examination” or “trigger” stage, and the “second limb” being, apparently, the “appropriate assessment” stage, again bundling assessment and authorisation together [Smyth v Secretary of State for Communities and Local Government [2016] Env LR 7  at §§ 16, 17, 43, 44, 51, 53, 55, 57, 61, 64, etc  per Sales LJ with whom the other members of the Court of Appeal agreed].

[16]      For what follows the most important thing to keep in view is that article 6(3) provides for staged decision-making and that the relevant stages for this case are the preliminary decision, the “appropriate assessment” and the development authorisation stages.  The preliminary decision stage could be called “sifting”, but I think it would be unwise, here and now, to give it a new name.  “Screening” is the term used by the applicants and decision-makers in this case.  I think the best option is to use the term “screening”, bearing in mind that a formal screening decision is not explicitly provided for in terms of article 6(3) and that so-called screening in terms of the Habitats Directive 92/43/EEC art. 6(3) and the relative domestic legislation must not be confused with the actual screening that is explicitly provided for in terms of the EIA Directive 2011/92/EU and its domestic emanations.

[17]      The ministers, when it comes to these judicial proceeding at least, if not previously, accept the staged decision-making analysis and describe the favourable “appropriate assessment” as a “jurisdictional prerequisite” of the Inch Cape project authorisations, namely the grant of licences in terms of the Marine (Scotland) Act 2010 section 21 and the consent in terms of the Electricity Act 1989 section 36.  The “appropriate assessment” bears, from its heading, to relate to those permissions and to the same development authorisations under the Electricity Act 1989 and the Marine (Scotland) Act 2010 for each of the other three Forth and Tay projects [6/4].

[18]      The RSPB’s lead challenge is directed at the Electricity Act 1989 section 36 consent in respect of the environmental impact assessment which is integral to that decision. The challenge is also directed at the Habitats Regulations “appropriate assessment” as a claimed component of the Electricity Works EIA Regulations environmental impact assessment and as a pre-requisite of the Electricity Act 1989 section 36 consent decision.  The “appropriate assessment”, although the subject of extensive criticism, is not challenged as a decision in its own right in the sense that no application is made to set it aside.  This is possibly a complicating factor.

[19]      The grant of the marine licences in terms of the Marine (Scotland) Act 2010 section 21 is not impugned, which is another possibly complicating factor.  The marine works challenge is directed at the environmental impact consent decision in terms of Marine Works EIA Regulations reg. 22 which, as stated above, is separate from but supports the grant of the marine licences in terms of the Marine (Scotland) Act 2010 section 21.  Very little was or is said about this matter on behalf of the RSPB by way of averment or in submissions; and, until I come back to the matter at the end of the section of the Opinion dealing with Ground A, I shall mention the Marine Works EIA Regulations reg. 22 issue only where necessary to cast light on the challenge to the Electricity Act 1989 section 36 consent [cf. Note of Argument for the ministers §§ 4.3, 23].

[20]      The ministers, exercising powers in various capacities under the different legislative provisions, are the decision-makers.  They are for example a “competent national authority” for the purpose of the Habitats Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora; and in terms of the transposing legislation, the Habitats Regulations, the ministers are “the competent authority”.  The ministers are “the regulator” and the “appropriate authority” as regards any activity in Scotland, including the waters adjacent to Scotland, for the purposes of the Marine Works EIA Regulations.  Marine Scotland [“MS”], a directorate of the Scottish Government, and in particular the Marine Scotland Licensing Operations Team [“MS-LOT”], had responsibility for processing all aspects of the applications on the ministers’ behalf.  Technical input was provided by Marine Scotland Science [“MSS”] supported by the Marine Scotland Science Advisory Board [“MSSAB”].  The statutory consultees for the purpose of the Electricity Works EIA Regulations include the seaboard local planning authorities ex adverso, such as Angus Council, the statutory nature conservation bodies [“SNCBs”] comprising Scottish Natural Heritage [“SNH”] for the inshore region and the Joint Nature Conservation Committee [“JNCC”] for the offshore region beyond twelve nautical miles from the coast or territorial sea baseline.  The Scottish Environment Protection Agency [“SEPA”] falls to be regarded as a statutory consultee for the purpose of the Electricity Works EIA Regulations in connection with the present projects and is a statutory consultee for the purpose of the Marine Works EIA Regulations [6/1, Electricity Act 1989 section 36 consent decision 10 October 2014, 5; 6/2, Marine Works EIA Regulations reg. 22 consent decision, § 4.2.2].  The RSPB is a non-statutory consultee.  The meaning of “non-statutory” consultee will be addressed below.   Marine Scotland on behalf of the ministers also commissioned work from outside consultants.

[21]      Key dates in the decision-making processes are as follows [“SA” is Seagreen Alpha, “SB” is Seagreen Bravo and “NNG” is Neart na Gaoithe]:

 

13.07.2012	NNG applications lodged accompanied by environmental statement
26.10.2012	SA and SB applications lodged accompanied by environmental statement
10.06.2013	Addendum to NNG environmental statement submitted as “further information” at some time before this date
01.07.2013	Inch Cape applications lodged accompanied by environmental statement
01.07.2013	Formal consultation of Inch Cape applications begins
05.09.2013	Inch Cape consultation deadline (subject to extension by agreement)
11.10.2013	SEPA consultation response submitted late as “additional information” at some time before this date
18.10.2013	Addendum to SA and SB environmental statement issued as “further information”
21.03.2014	Erratum to SA and SB “further information” issued as “additional information”
26.03.2014	Extended deadline for consultees’ consultation responses
16.07.2014 16.07.2014	Combined “appropriate assessment” process completed by MSS Inch Cape Electricity Act 1989 s. 36 consent completed by MSS
10.09.2014	Inch Cape Marine Works EIA Regulations reg. 22 environmental impact consent process completed by MSS
15.09.2014	Inch Cape Marine Works EIA Regulations reg. 22 environmental impact consent decision approved by MS-LOT
02.10.2014	Inch Cape Marine Works EIA Regulations reg. 22 environmental impact consent decision issued
07.10.2014	Combined “appropriate assessment” formally approved by MS-LOT
07.10.2014	Inch Cape Electricity Act 1989 s. 36 consent submitted to ministers
10.10.2014	Inch Cape Electricity Act 1989 s. 36 consent decision made
10.10.2014	Inch Cape Marine (Scotland) Act 2010 s. 21 licences granted

 

The RSPB maintained its objections to all applications for all projects throughout.

 

Inch Cape Electricity Act 1989 s. 36 consent decision grounds of challenge
[22]      Concentrating for the time being on the Inch Cape Electricity Act 1989 section 36 consent decision dated 10 October 2014, three grounds of challenge are stated.

[23]      Ground A is that the ministers granted the Electricity Act 1989 section 36 consent without complying with their obligations in terms of the Electricity Works EIA Regulations and, or alternatively, at common law to publicise, notify and consult on environmental information about the project; and that they made their decision unlawfully taking account of unconsulted-on information.

[24]      Ground B is that the “appropriate assessment”, a prerequisite of the Electricity Act 1989 section 36 consent decision, is flawed in that it takes into account irrelevant considerations, leaves out of account relevant considerations, applies the wrong test and reaches a perverse conclusion.  The detail of the second ground is mostly concerned with ornithological risk assessment methodology.  I shall call the first part of the second ground which deals with methodology Ground B.1.  A distinct point, which I shall deal with separately as Ground B.2, is the claim that the ministers are in breach of their EU law obligation by refusing or delaying to classify the Outer Firth of Forth and Tay Bay Complex as a marine special protection area [Forth & Tay marine SPA] in terms of the Birds Directive, originally Directive 79/409/EEC, now Directive 2009/147/EC etc;  and that, notwithstanding the non-classification of the Forth & Tay SPA the ministers should have, but failed to, take into account the Forth & Tay draft marine SPA [dSPA] in making their decisions on the Inch Cape proposal in combination with the other proposals.  The Neart na Gaoithe site lies within the currently suggested boundaries of the Forth & Tay marine dSPA.

[25]      Ground C is that the ministers erred by failing to give appropriate weight to the advice of the statutory conservation consultees SNH and the JNCC or alternatively by rejecting the views of SNH and the JNCC without giving an adequate explanation for doing so and, separately, by concluding that there is no doubt about adverse impact on the integrity of the SPAs without demonstrating that the views of the SNCBs and the RSPB on the matter are mistaken.

[26]      My judgment is that the Inch Cape decisions have to be re-made on the basis that Grounds A, B.1 and B.2 are made out.  Much of the complaint under Ground C is dealt with in connection with Ground B.1 and I shall not address it separately. The associated proceedings about the Seagreen Alpha, Seagreen Bravo and Neart na Gaoithe projects are dealt with in the same way.

 

Ground A: publication, notification and consultation—the legal framework
[27]      The Ground A issue as framed in debate is about the contrasting informational participation provisions for an assessment in terms of the Electricity Works EIA Regulations on the one hand and for, on the other hand, a Habitats Regulations “appropriate assessment”; about claimed unlawful failure on the part of the ministers to publish, notify and consult on environmental information for the purpose of the Electricity Works EIA Regulations assessment; and also about the consequences of the claimed failure.

 

Electricity Works EIA Regulations: “significant effects” and “environmental statements”
[28]      The Inch Cape project engages the Electricity Works EIA Regulations as a “schedule 2 development”, that is as an electricity development of a type listed in schedule 2 of the regulations which is acknowledged or determined to be “likely to have significant effects on the environment by virtue of factors such as its nature, size or location” [Electricity Works EIA Regulations reg. 3, sched. 2].  The criteria for judging “significant effects” are listed in schedule 3.  The relevant criteria include: “the environmental sensitivity of geographical areas likely to be affected by development... having regard, in particular, to... (c) the absorption capacity of the natural environment, paying particular attention to... (vi) special protection areas designated by EEA States pursuant to Directives 79/409/EEC [the Birds Directive] and 92/43/EEC [the Habitats Directive]” [Electricity Works EIA Regulations regs. 2, 3 and 7 and sched. 3(2); R (on the application of Mellor) v Secretary of State for Communities and Local Government (C-75/08) ECLI:EU:C:2009:279, [2010] Env LR 2, at § AG54].  The same applies to the other Forth and Tay projects referred to above. EIA development applications have to be accompanied by “environmental statements”.

[29]      “Environmental statements” prepared by developers are the basis for assessing environmental impacts.  The Inch Cape application submitted on 1 July 2013 was accompanied by a 5,381-page environmental statement (lodged, I am told, in fifteen ring binders) [7/24].  The environmental statement comprises a 692-page ornithological chapter [Offshore Environmental Statement, vol 2F, chap 15, “Ornithology”].  This chapter “assesses the likely impacts of the Inch Cape project and its associated offshore transmission works on birds” and “comprises a Habitats Regulations Appraisal (HRA)”.  An appendix contains the so-called habitats regulations appraisal “screening report”.  The aim of the report is described as follows [Appendix 15B.1: HRA Screening Report, § 1.11]:

 

“This report provides information to underpin a screening assessment for likely significant effects of the proposed Inch Cape Offshore Wind Farm on the qualifying interests of SPAs in order to identify potential SPAs for inclusion with the Appropriate Assessment (Screening). It also provides an outline methodology to undertake the Appropriate Assessment which ICOL [Inch Cape Offshore Limited] would propose to discuss with Marine Scotland and its advisors in response to this document.”

 

 

[30]      The Inch Cape ornithological chapter concludes with confident statements about the absence of adverse effects on the site integrity of the Forth Islands and Fowlsheugh SPAs from the Inch Cape project alone and, subject to a qualification about the apportionment of kittiwake collision mortality, with confident statements that the in-combination effects will not compromise the achievement of the conservation objectives for the qualifying features of the Forth Islands and Fowlsheugh SPAs [15.1 Introduction; 15.12.9 HRA Summary and Conclusions, §§ 505—506, 509--510].  However during the extended consultation period, on 7 March 2014, the SNCBs advised MS-LOT that the project was likely to have a “significant effect” on the qualifying interests of a number of SPAs including Forth Islands and Fowlsheugh and advised that the ministers would require to carry out an “appropriate assessment” in terms of the Habitats Regulations; and in due course the consensus developed that the way forward was a regional “appropriate assessment”, using a “common currency”, to address the individual and in-combination effects of the Inch Cape project and the other Forth and Tay projects referred to above.

 

Environmental impact assessment vs. “appropriate assessment”

[31]      The case law and guidance draw attention to the differences between environmental impact assessments on the one hand and on the other hand “appropriate assessments” made under the Habitats Regulations [Commission of the European Communities v Austria (Lauteracher Ried) (C-209/04) [2006] ECR I-02755, [2006] Env LR 39 (incorrectly reported as C-209/03) at §§ AG61--AG62;  R (on the application of An Taisce (National Trust For Ireland)) v Secretary of State for Energy and Climate Change [2015] PTSR 189 (CA) at § 16 per Sullivan LJ; EU Commission Guidance Document, Wind Energy Developments and Natura 2000 (Luxembourg, 2011), § 2.5.3, “The relationship between SEA [strategic environmental assessment], EIA and Appropriate Assessments”].  The salient provisions of the two sets of domestic regulations which are in play in the current discussion, Electricity Works EIA and Habitats, can be compared and contrasted in tabular form [cf. Note of Argument for Inch Cape, § 7]:

 

Electricity Works EIA Regulations “Environmental Impact Assessment”	Habitats Regulations “Appropriate Assessment”
Applicant submits environmental information for assessment	Assessment carried out by or for competent authority
Assessment of significant effects on environment generally	Assessment of implications for protected site only
Mandatory consultation with SNCB(s)	Mandatory consultation with SNCB(s)
Mandatory public informational participation/ consultation provisions	Public consultation at discretion of competent authority
Environmental information “to be taken into consideration” for development consent decision	No development consent unless certainty that the project will not affect the integrity of the site

 

MS-LOT decided that public consultation was not required in connection with the Habitats Regulations “appropriate assessment”.

[32]      MS-LOT’s perspective on this issue and on the differences between the Habitats Regulations process and the Electricity Works EIA Regulations process is illustrated by the following passage in the combined “appropriate assessment” [6/4, Introduction, 2—3]:

 

“Those [Habitats] Regulations allow for the competent authority to consult the general public on the AA [appropriate assessment] if they consider it appropriate. This has not been done as the general public have already had the opportunity to respond to the applications through the Environmental Impact Assessment (“EIA”) process where information regarding the potential impacts on European protected sites was available in the Environmental Statements (“ESs”) provided for [Neart na Gaoithe, Inch Cape and Seagreen]. The Supplementary Environmental Information Statements (“SEISs”) submitted for [Neart na Gaoithe and Seagreen] were also made publically [sic] available and consulted on... [I]t was not deemed appropriate to consult the general public further. Consultation responses regarding Natura [European protected sites] issues were received from [RSPB Scotland and others]. RSPB Scotland expressed significant concerns regarding the potential effect on several seabird species and criticised the assessment methods being used. The RSPB Scotland letter predated a range of mitigation measures proposed by the developers to reduce effects upon seabird populations. The points raised by RSPB Scotland are addressed in Appendix 1...”

 

Appendix 1 of the combined “appropriate assessment” contains technical responses to the RSPB’s originally-expressed concerns and also a response to the subsequent general concern about lack of consultation on “additional information” [6/4, Appropriate Assessment, Appendix 1, 70—71].

[33]      The response makes three points: first, that “the work that has been carried out should be considered under the Habitats Regulations”; secondly, that there is no statutory requirement under these [Habitats Regulations] for public consultation; and, thirdly and last, that: “The models used to inform the [“appropriate assessment”] have been shared with the RSPB, and MS-LOT and MSS have engaged with the RSPB Scotland to keep them informed of the assessment process.” As appears from what follows below, the third point—if it is intended to convey that the “sharing” took place during the Electricity Works EIA Regulations assessment process—is contentious.

[34]      The ornithological section of the “appropriate assessment” concludes [6/4, 44—45]:

 

“In the assessments above MS-LOT have considered the conservation objective of ‘maintaining the population of the species as a viable component of the site’ on the individual qualifying features of the SPAs. As the effects of the Forth and Tay Developments on the populations were found to be within acceptable thresholds for all the species being considered in this assessment MS-LOT concluded that the Forth and Tay Developments will not adversely affect the integrity of the SPAs with respect to the individual qualifying features… MS-LOT consider that the most up to date and best scientific evidence available has been used in reaching the conclusion that any decision to approve the… Developments will not adversely affect integrity of the sites concerned and are satisfied that no reasonable scientific doubt remains.”

 

The RSPB’s complaint is that determining elements of “the evidence available” became available after the environmental statements were submitted and were not offered for comment through the Electricity Works EIA Regulations process.

 

Electricity Works EIA Regulations: “the environmental information”

[35]      In terms of the Electricity Works EIA Regulations reg. 4, as stated above, the ministers have to take into consideration “the environmental information”. “Environmental information” is a specially defined term for the purpose of these regulations.  Regulation 2 defines “environmental information”—I paraphrase to some extent—as: (a) “the environmental statement prepared by the applicant” being (i) the environmental statement submitted with the application, (ii) “supplementary information” [my term] provided by the applicant within fourteen days after submission to supplement the environmental statement, and (iii) “further information” which is required by the ministers to be provided by the applicant for the purpose of the environmental statement; (b) “additional information” meaning substantive information relating to the environmental statement (i) provided by the applicant on a voluntary basis after the fourteen-day deadline for supplementary information (ie being neither “supplementary information” nor “further information”) or (ii) provided by a consultative body to the ministers after, as I read the regulations (see below), the consultation deadline; and (c) “any representations duly made by any consultative body or any other person about the likely environmental effects of the proposed development”.

 

Electricity Works EIA Regulations: “representations duly made”
[36]      In this scheme “representations duly made” appears to signify consultation responses made by consultative bodies and other persons within the time fixed, something to be contrasted with “additional information” which may be provided at any time until determination [definition of “environmental information”, 2000, before provision for “additional information” by amendment in 2008; definition of “additional information” following amendment;  R (on the application of Condron) v National Assembly of Wales [2006] Env LR 35 (appeal allowed on another point [2007] Env LR D7);  Middlesex CC v Minister of Local Government and Planning [1953] 1 QB 12; Answers  for Inch Cape, § 18]. On the proposed reading of “duly made”, representations from “consultative bodies” containing substantive information that has come in late but before determination are, or may be treated as “additional information”.

 

 Electricity Works EIA Regulations: “further information” and “additional information”
[37]      Late consultation responses by persons other than “consultative bodies” do not count as “additional information”.  I am told that the final consultation deadline for the RSPB was 26 March 2014 although I have no certain idea why it should have been extended to this date for the RSPB and, presumably, others, but not for the general public apparently [6/14, letter RSPB to MS, 26 March 2014, 7—8, § 4.0 “Reasonable Timescales for Consultation”; 6/37, affidavit of C Nathan, §§ 42, 45 and 93; cf. 13/93 affidavit of F Bennet, § 15].  In their pleadings the ministers state that the RSPB could have made “further representations” up to the time the applications were determined.  This may be true in a sense: but such further representations would not have qualified as “additional information”; they could not have been taken into account by the ministers as part of the “environmental information”; and no doubt applicants would object if late responses by non-statutory consultees were so treated [Answers for the ministers, § 17].  Consistently with this understanding, MS e-mailed the RSPB on 1 August 2014 to say: “... it is too late to consider any additional or new information at this time” [6/54].  So, after 26 March 2014 nothing that the RSPB might have said could properly have influenced the Electricity Works EIA Regulations process—not unless Inch Cape were to have supplied “further information” for the environmental statement at the instigation of the ministers and triggered a new consultation round.

 

Electricity Works EIA Regulations: “consultative bodies” and “non-statutory consultees”

[38]      “Consultative bodies” is a defined term which for present purposes means the entities I have called “statutory consultees” above, namely the seaboard planning authorities, the SNCBs and SEPA. “Statutory consultees” is the expression used for these bodies in the decision documents.  The power to designate additional “consultative bodies” has not, so far as I know, been exercised or exercised in any way relevant to the present cases [Electricity EIA Regulations reg. 2, “the consultative bodies”; cf. Environmental Impact Directive 2011/92/EU, art. 6(1)].  The undefined expression “non-statutory consultee” is used in the decision documents and by the ministers and Inch Cape in their pleadings and submissions.  The RSPB is described as a “non-statutory consultee” [eg 6/2, Marine Works (Environmental Impact Assessment) Regulations 2007 (Regulation 22) Environmental Impact Assessment consent decision, §§ 4.2.1 and 4.2.2; Answers for the ministers, § 23;  Note of Argument for the ministers, § 19; Note of Argument for Inch Cape, § 29]. The expression “non-statutory consultee” is capable of having a precise meaning in the present context; and it is useful to give it this precise meaning, namely “such other persons that are in [the ministers’] opinion likely to be concerned by the proposed development by reason of their specific environmental responsibilities” in terms of the Electricity Works EIA Regulations reg. 8(3)(a), at the preparation stage, and reg. 11(2)(a)(ii), at and after the application stage. The wording “likely to be concerned… by reason of their specific environmental responsibilities” is taken from the European legislation (see below).

[39]      The ministers’ chosen non-statutory consultees have privileged informational-participation status and a corresponding obligation to provide information to the applicant for the environmental statement [Electricity Works EIA Regulations reg. 15].  The privileged status consists of (1) entitlement to notice of the preparation of the environmental statement and an opportunity to contribute; (2) entitlement to notice of the receipt by the ministers of the environmental statement; (3) entitlement to be served with a copy of the environmental statement free of charge and entitlement to information about making representations; (4) entitlement to be served with a copy of any “further information” free of charge and entitlement to information about making representations;  (5) entitlement to notice of the receipt of “additional information” by the ministers and entitlement to information about how to obtain copies [Electricity Works EIA Regulations regs. 8(3)(a) and (b), 9(4), 11(2)(a), (b) and (c), 14(1), (2)(c), (3) and (4), 14A(2) and (5), 15].

 

Processing “additional information” and “further information”

[40]      As I read the regulations “additional information” has to be placed on the local planning register(s) and, after the first notification of “additional information”, the onus is on organisations and individuals who are interested to keep an eye on the specified register(s) for further “additional information” [Electricity Works EIA Regulations regs. 10(2A)(2)(a), (c) and (d), 14A(4)(f)].  The latter point is consistent with the terms of the Inch Cape press notices about the SEPA representations in October 2013: “Any subsequent additional information... will be similarly forwarded to the [specified local authorities] to be placed on the planning register and made available for public inspection... [but] no further public notice will be issued“ [references below].

[41]      Putting documents in the public domain is one thing.  Actively arranging for information to be considered and for representations to be received is something different.  Should we understand that “additional information” is subject to “arrangements for consultation” (to use the European phrase) only on the first occasion?  When the environmental statement is lodged the press notices are meant to describe the procedures that will follow including “the procedures under regulations 14 and 14A in accordance with which any person may make representations in relation to (i) further information... or (ii) additional information”: yet the requirement, in terms of regulation 14A itself, to “state a date... by which any person may make representations to the Scottish Ministers in relation to the additional information” applies only on the first occasion [Electricity Works EIA Regulations regs. 9(2)(d)(i), 14A(2) and (4)(e) and (f); Note of Argument for the ministers, §§ 7.5, 14; The Edinburgh Gazette, 26 July 2013, notice including reference to procedure for “further information” but, wrongly, omitting reference to the procedure for “additional information”; Note of Argument for Inch Cape, §§ 9, 30; cf. R (on the application of Corbett) v Cornwall Council [2014] PTSR 727 at §§ 62, 71—77 re “any other information”, the equivalent concept in terms of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (as amended) regs. 2(1) and 19].

[42]      In this context it has to be noted that the Marine Works EIA Regulations reg. 22 consent decision states: “Under the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2000 (as amended) the applicant was required to place public notices following the first statutory consultee response, hence the additional notices which were placed in October.”  This is a reference to publication of Inch Cape press notices on 11, 12, 18 and 25 October 2013.  The statement is not intelligible unless it is appreciated that the response in question, from SEPA, was processed as “additional information” in terms of the Electricity Works EIA Regulations reg. 14A, presumably because it was a late response—the originally advertised response deadline being 5 September 2013 [The Edinburgh Gazette, 26 July 2013].  The press notice states that the “additional information” is available for inspection on the planning registers of specified local authorities [Marine Works EIA reg. 22 consent decision, § 4.1; The Edinburgh Gazette, 12 October 2013; Note of Argument for Inch Cape, §§ 9, 30].  The only two items of “further information” that I have been told about in these cases are the Neart na Gaoithe “addendum to the environmental statement” which was served, notified and published as “further information” in June 2013 [eg The Edinburgh Gazette, 21 June 2013]; and the Seagreen “addendum to the environmental statement” which was served, notified and published as “further information” in October 2013 [eg 7/4/1 Courier and Advertiser, 11 October 2013; The Edinburgh Gazette, 12 October 2013]. There was “additional information” in the Seagreen process consisting of an “erratum” correcting certain values given in the Seagreen “further information” [13/64, 6].

[43]      There was no more “additional information” and no more “further information” in the interval before the Inch Cape Marine Act section 36 application was decided a year later. This is one of the RSPB’s complaints.  The RSPB contends that the decisions under attack were made on the basis of information which should have been put out for consultation using the “additional information” or the “further information” routes, but was not.  

 

Interpretation and transposition: the EIA Directive 2011/92/EU and the Aarhus Convention

[44]      The Scots provisions about “additional information” are copied from the version enacted for England & Wales [Electricity Works (Environmental Impact Assessment) (England and Wales) Regulations 2000; Electricity Works (Environmental Impact Assessment) (England and Wales) (Amendment) Regulations 2007].  The legislative intention is possibly obscure.  There is a question as to how the domestic measures should be interpreted having regard to the terms of the Environmental Impacts Assessment Directive 2011/92/EU [EIA Directive 2011/92/EU]; and there is a question as to whether the EIA Directive 2011/92/EU is properly transposed.

[45]      The question about “additional information” and the terms of regulation 14A is part of a larger issue between parties about effective transposition and implementation.  The source of all environmental impact assessment legislation is the EU regime codified in the EIA Directive 2011/92/EU.  This is the regime to which domestic legislation must give effect. The connection between decision-making about environmental effects and informational participation goes back through EIA Directive 2011/92/EU to the Aarhus Convention, especially to the preamble and articles 6 and 8 of the Convention [EIA Directive 2011/92/EU, recital 20, art. 6 etc;  Aarhus Convention signed 25 June 1998, ratified 17 February 2005 by Decision 2005/370/EC].  The Aarhus Convention recognises that, in the environmental field, “improved access to information and public participation in decision-making enhance the quality and the implementation of decisions” [Aarhus Convention, preamble].

[46]      In transposing and implementing the EIA Directive 2011/92/EU, the Electricity Works EIA Regulations appear to offer all expert consultees, statutory and non-statutory, at least to an extent, the role of “authorities likely to be concerned by the project by reason of their specific environmental responsibilities” [EIA Directive 2011/92/EU, recital 7, arts. 5(2), 5(4), 6(1); Electricity Works EIA Regulations reg. 7(4) cf. Marine Works EIA Regulations reg. 2, where “authorities likely to be concerned” is transposed as “consultation bodies” including “such other bodies as the appropriate authority considers likely to have an interest in the regulated activity (whether by virtue of their having specific environmental responsibilities under an enactment or otherwise)”].

[47]      The EIA Directive 2011/92/EU article 6(1) provides:

“Member States shall take the measures necessary to ensure that the authorities likely to be concerned by the project by reason of their specific environmental responsibilities are given an opportunity to express their opinion on the information supplied by the developer and on the request for development consent. To that end, Member States shall designate the authorities to be consulted, either in general terms or on a case-by-case basis. The information gathered pursuant to Article 5 shall be forwarded to those authorities. Detailed arrangements for consultation shall be laid down by the Member States.”

“The information gathered pursuant to Article 5” means, to put it in United Kingdom parlance, the applicant’s environmental statement including “supplementary information” (as I have defined it) and “further information” [EIA Directive 2011/92/EU, art. 5, Annex IV; Electricity Works EIA Regulations regs. 2 and 4, sched. 4, parts I and II].  There is no immediately obvious scope in this part of the European scheme for “additional information” or for consulting on “additional information” [cf. EIA Directive 2011/92/EU, arts. 6(3)(c) and 8].  A possible reading of article 6(3)(c) is that information “which only becomes available” after the initial publication and consultation round is sufficiently accessible if made available through general freedom of environmental information procedures in terms of Directive 2003/4/EC (see below); and, if so, this is a basis for the “additional information” category in the United Kingdom measures and for the pared-down, available-on-request informational participation provision for “additional information” [R (on the application of Corbett) v Cornwall Council [2014] PTSR 727 at §§ 62, 71—77; cf. The Aarhus Convention: an Implementation Guide (United Nations, New York, 2000, 98—99, 104--105].

[48]      On the other hand, according to the Aarhus guidance the obligation to make relevant information available, in terms of the Aarhus Convention, art. 6(2), is a continuing obligation, and [107]:

 

“… the issuance of new reports and advice to the public authority should trigger an additional obligation to notify the public concerned. The obligation to update information is also found in the lead to this subparagraph [of article 6], which requires the public authorities to give all relevant information to the public concerned ‘as soon as it becomes available’.”

 

 

And in terms of the EIA Directive 2011/92/EU art. 6(4): “The public concerned shall be given early and effective opportunities to participate in the environmental decision-making procedures referred to in Article 2(2) and shall, for that purpose, be entitled to express comments and opinions when all options are open to the competent authority or authorities before the decision on the request for development consent is taken.” The “public concerned” includes “non-governmental organisations promoting environmental protection and meeting any requirements under national law” [EIA Directive 2011/92/EU, arts. 1(2)(e) and 11(3); Aarhus Convention art. 2(3)(a); The Aarhus Convention: an Implementation Guide (United Nations, New York, 2000), 107].

[49]      The RSPB founds on the last-mentioned provision and on the general principle of effectiveness.  Part of the ministers’ submission is that decisions as to things like whether “further information” is required, what constitutes “substantive” information and “additional information”, are “soft” judgements, matters confided to the ministers’ discretion, subject only to review on Wednesbury grounds [Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223;  R v Rochdale Metropolitan Borough Council ex parte Milne [2001] Env LR 22 at §§ 108—110;  Berkeley v Secretary of State for the Environment, Transport and the Regions (No.1) [2001] 2 AC 603 at 615C—616C per Lord Hoffmann; R (on the application of Edwards) v Environment Agency (C-260/11) ECLI:EU:C:2013:221, [2013] 1 WLR 2914 at §§  AG23—AG26 and at § 33; R (on the application of Evans) v Basingstoke and Deane BC [2013] EWHC 899 (Admin) (affirmed on appeal [2014] 1 WLR 2034) at §§ 280—291; R (on the application of Evans) v Secretary of State for Communities and Local Government [2013] EWCA Civ 114 at §§ 32—43 per Beatson LJ;  Smyth v Secretary of State for Communities and Local Government [2016] Env LR 7  at § 80 per Sales LJ].

[50]      The RSPB reserves its position on the question whether a level of judicial scrutiny more intense than Wednesbury is called for generally in environmental matters.  There is no need to rule definitively in this context on the competing submissions about the intensity of judicial scrutiny; nor do I need to express an opinion at this stage on the issues around regulation 14A and transposition since the basis on which I mean to decide Ground A makes it unnecessary to do so.  I shall look again at the issue from a different perspective when considering the question of remedy.  The conclusion that I come to below is that if new information, being “information which is relevant for the decision” in terms of EIA Directive 2011/92/EU, art. 6(3)(c), is to be taken into consideration, the new material must be processed by notification, publication and consultation so as to become “environmental information”.

 

Freedom of environmental information
[51]      Access to environmental information of all sorts is guaranteed for the public at large by the Environmental Information (Scotland) Regulations 2004 (as amended) which implement the Environmental Information Directive 2003/4/EC.  There is a wide-ranging definition of “environmental information”, much broader than the special Electricity Works EIA Regulations meaning. Environmental information requests should be complied with in 20 days.  While the environmental information measures undoubtedly satisfy some of the Aarhus aspirations, there is an issue as to whether they are an effective substitute for the sort of informational participation in decision-making which the RSPB claims as an entitlement under the EIA Directive 2011/92/EU and the Electricity Works EIA Regulations.

[52]      The RSPB requested information from the ministers relating to the impact of east coast wind farm projects on bird populations on 14 February 2014. Following an exchange of correspondence over several months, the RSPB applied to the Scottish Information Commissioner.  On 6 August 2014 the Commissioner ruled that the ministers had failed to comply with the statutory timescale.  Meanwhile the ministers asserted that the request was formulated in too general a manner and was excepted from disclosure under regulation 10(4)(c). On 1 September 2014 the RSPB again applied to the Commissioner.  By decision dated 18 December 2014 the Commissioner ruled in favour of the RSPB.  Having reviewed the request further the ministers claimed that the request was manifestly unreasonable and was excepted from disclosure under regulation 10(4)(b).  The RSPB made a further application to the Commissioner.  By decision dated 6 August 2015 the Commissioner ruled in favour of the ministers’ contention that public interest in information about bird impact assessment methodologies in relation to the authorisation of wind farms was outweighed by the public interest in ensuring the efficient and effective use of public resources by not incurring excessive costs when complying with information requests. Whether matters rest there I do not know.

[53]      In the meantime the ministers had complied with three restricted requests for information made by the RSPB by supplying information on 19 December 2014 (the day after the Commissioner’s second decision notice), 16 January 2015 and 17 February 2015 [Petition, §16; Answers  for the ministers, § 16].  The RSPB have also obtained environmental information by making freedom of information requests to SNH: information was provided on 22 September 2014 and 4 February 2015.

 

Consultation at common law

[54]      Apart from the issues around informational participation in terms of the legislation, there is an issue as to whether the RSPB has a right to be consulted at common law. There are circumstances in which the law insists that, if there is consultation by a public authority, consultation must in fairness be effective, conducted in such a manner as to afford the opportunity for informed and considered responses [R v Secretary of State for Health ex parte United States Tobacco International Inc [1992] 1 QB 353; R (on the application of Edwards) v Environment Agency [2007] Env LR 9; Eisai Ltd v National Institute for Health and Clinical Excellence (NICE) [2008] EWCA Civ 438; R (on the application of Edwards) v Environment Agency (No.2) [2008] 1 WLR 1587; R (on the application of Moseley) v Haringey LBC [2014] 1 WLR 3947 at §§ 23—25 per Lord Wilson, at § 36 per Lord Reed].

[55]      The RSPB cites the Scottish terrestrial planning regime as a model of “effective opportunities” for informational participation in environmental matters [Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2011 regs. 23 and 24; Scottish Planning Policy (Scottish Government, 2014), §§ 4, 6, 35, 135--214; Scottish Planning Series, Planning Policy 3/2011 (Scottish Government, 2011), §§ 126—130].  However, this begs a number of questions; and I suspect that the discussion has to come back to the terms of the regulations applicable in this case.

 

Ground A: submissions for the RSPB

[56]      The contention of the RSPB is that the Electricity Act 1989 section 36 consent is substantially based on unshared environmental information consisting of (a) “substantive information” provided by the applicants and the SNCBs which should have been treated as “additional information” or possibly processed as “further information” and made available for comment but was not, and (b) “substantive information” generated or commissioned in-house that wrongfully by-passed the informational participation requirements, express and implied, of the Electricity Works EIA Regulations and should have been processed as “further information” and made available for comment but was not.  Much of the unshared information is represented by “methodologies”, including choices of software packages, for assessing risks to individuals and population-scale effects.  I take these “methodologies” to be “methods of assessment” or “forecasting methods to assess the effects” within the meaning of the legislation, which, if available, are to be part of the prescribed content of environmental statements [Electricity Works EIA Regulations, arts. 4(1)(b), 7(7) and sched. 4, part I, 5; EIA Directive 2011/92/EU, art. 5(1)(b), Annex 4.5].  (In this context it is to be noticed that the ministers contend for a narrow meaning of the word “method”, presumably to restrict the application of the legislation.)

[57]      The RSPB has produced information tables showing 150 documents containing allegedly unshared environmental information claimed by the RSPB to have entered the Electricity Act 1989 section 36 consenting process [6/36, information tables; 6/36/1—150, documents].  The information tables gather the documents under three heads: table 1, documents 1–15 “information supplied by applicants”; table 2, documents 16—95, “information submitted by SNCBs and MSS”; and table 3, documents 96—150, “methodologies developed for environmental assessment”.  The vast majority of the documents—I calculate 145 documents—were not subject to publication, notification or consultation and were not otherwise shared with the RSPB until after the consultation deadline, or until after the consenting process was practically complete, or until after the Electricity Act 1989 s. 36 decision was issued: in summary, the documents were not shared until it was too late for the RSPB to input “environmental information”.  The RSPB has knowledge of the non-disclosed documents largely through freedom of information requests made in terms of the Environmental Information (Scotland) Regulations 2004.  As stated above, requests were made to SNH as well as the ministers. Documents were supplied on 22 September 2014 (six months after the consultation deadline and less than three weeks before the section 36 consent was issued), 19 December 2014, 16 January 2015, 4 February 2015 and 17 February 2015.

[58]      The RSPB has produced revised information tables showing a selection of the information table documents [6/38]. The revised information tables list 81 of the documents, 33 documents said to be “substantive documents” and 48 documents said to be “secondarily substantive documents”.  Seventeen of the “secondarily substantive documents” are “workings”, spreadsheets showing risk modelling outputs using different methods with various combinations of inputs.  The revised information tables identify 24 documents specifically referred to in the “appropriate assessment”.  There is a supporting affidavit by Charles Nathan, RSPB marine conservation planner, which gives detailed evidence about the claimed non-disclosure of key information to the RSPB in three example areas with reference to the information tables [6/37].  The three example areas are CRM [collision risk modelling]; ABC [acceptable biological change]; and the extended interpolation or “scalar” method.  I understand from the RSPB submissions that changes to pre-existing methods of CRM and its applications took place throughout the consenting process; that MSS first mooted ABC on 26 August 2013 and that ruABC [reduced uncertainty acceptable biological change] was proposed by the SNCBs specifically for these decision-making processes; that the “scalar” method of interpolation was also developed by MSS specifically for these processes and has not been peer reviewed.

[59]      The RSPB criticises the CRM applications and the use of threshold-setting methods, specifically PBR [potential biological removal], ABC, ruABC and “scalar”.  I was referred to the paper Misleading use of science in the assessment of probable effects of offshore wind projects on populations of seabirds in Scotland [6/17; also 6/19].  The author is Professor Rhys Green who holds the chair of Conservation Science in the University of Cambridge.  Professor Green is the RSPB’s principal research biologist.  The RSPB sent a copy of the paper to the director of MS on 14 August 2014.  The Rhys Green paper was discussed by MSS with the MSSAB at a teleconference on 29 September 2014.  

[60]      In oral submissions the RSPB offered analysis of ten examples of unshared material, focusing on the subject-matter, categorised in terms of the source as (1) supplied by the developers, (2) supplied by the SCNBs and (3) supplied by MS or MSS or consultants for MS. All the material was said to be material that should have been in the environmental statements for the projects (or in supplementary environmental statements).  The subjects are (1) creation of a “common currency” for all four projects (explained below) [6/36/22, 6/36/28, 6/36/29, 6/36/34, 6/36/37], categories 1, 2 and 3; (2) MacArthur Green PVA [population viability analysis] of Bass Rock gannets [6/36/56], category 3;  MacArthur Green PVA [population viability analysis] of Forth Islands puffins [6/36/61], category 3;  assessment of environmental impacts on seabird interests [6/6, 6/8], category 2; (5) Centre for Ecology and Hydrology [CEH], Population Dynamics of Forth & Tay Breeding Seabirds [6/36/51], category 3; (6) CEH, Population Consequences of Displacement [6/36/52], category 3; (7) MSS development of displacement and collision modelling [6/36/66, 6/36/67], categories 1 and 3;  (8) SNCBs development of ABC [acceptable biological change] [6/36/140], category 2;  (9) JNCC development of ruABC [reduced uncertainty acceptable biological change] [6/36/141], category 2; (10) MSS development of puffin PVA [6/36/147], category 3.  

[61]      The RSPB submit that the ministers were in any event obliged at common law to consult with the RSPB on the unshared information.  In this context the oral submissions also offered a perspective which focuses on documents, described as “important documents not received”, which are said to be essential for meaningful consultation.  The submissions incorporated part of the affidavit of Charles Nathan [6/37, §§ 17—36, 41—51 (CRM), 52—57 (ABC and ruABC), 58—69 (“scalar”)].  Some of the “important documents” are actually suites of documents.  The documents or suites of documents are (1) MacArthur Green—external consultants commissioned by MS—Forth Islands SPA puffin PVA [population viability analysis] report, 9 May 2014 [6/36/61]; (2) SNCBs’ Key Advice on SPA Seabird Interests, 6 June 2014 [6/36/64]; (3) MSS advice on displacement rates, 12 June 2014 [6/36/66]; (4) CRM [collision risk modelling] outputs received from MSS (missing some data), 14 August 2014, received from SNH (data complete), 20 August 2014, received from MSS (clarification of missing data), 21 August 2014 [6/36/73, 6/36/70, 6/36/78]; (5) ABC [acceptable biological change] methodology, eighteen documents or groups of documents including seven key items from various sources received in response to FOI requests, 19 December 2014—4 February 2015 [6/36/5 and 6/36/6; 6/36/16 and 6/36/17; 6/36/18; 6/36/21; 6/36/23; 6/36/25; 6/36/26 and 6/36/27; 6/36/32; 6/36/79 and 6/36/80; 6/36/85—6/36/91; 6/36/95; 6/36/106; 6/36/107; 6/36/109; 6/36/112; 6/36/117; 6/36/119; 6/36/146]; (6) development of interpolation methodology for comparing ABC and ruABC [acceptable biological change and reduced uncertainty acceptable biological change] thresholds with PVA [population viability analysis] outputs, MSS draft advice, 14 April 2014, received from MSS 28 April 2014, email from MSS to SNCBs with attachment, 23 April 2014, SNCB advice to MS-LOT on interpolation methodology updating consultation response of 7 March 2014, 6 June 2014, all except the first item received by RSPB in response to FOI requests, 22 September 2014 [6/36/59, 6/36/142 and attachment 6/36/60, 6/36/64, 6/36/69]; (7) description of “scalar” interpolation method, email from MS-LOT to developers, 24 June 2014, received by RSPB in response to FOI requests, 22 September 2014 [6/36/69]:  it is said that the method “has the advantage of matching the level of reduced productivity in the threshold calculation to that estimated, and also of providing an adult survival threshold that can be used as the focus of mitigation and assessment...”

[62]      Mr Nathan’s affidavit describes the “common currency” developed during the decision-making process as a standardisation across all four projects of CRM [collision risk modelling] inputs including bird length, wingspan, flight speed, flight type, proportion of nocturnal activity and so on [6/37, § 72].  The CRM common currency also includes turbine-related parameters such as hub elevations (above tide levels), blade configurations, rotation speeds and rotor swept areas.  The “common currency” expressly referred to in the “appropriate assessment” relates to standardised assessment generally, including standardised collision risk models, and to standardised displacement rates.  The standardisation of displacement rates does appear to have a connection with mitigation measures, namely reduction in turbine numbers and consequential reduction in turbine density or increase in turbine spacing: but the RSPB contend in oral submissions that the “common currency” is something more than, or other than a refinement or mitigation of the supposed worst-case-scenario design envelopes presented in the respective environmental statements; that in any event, unlike in the Rochdale case, the design envelopes were unacceptable [R v Rochdale Metropolitan Borough Council ex parte Milne [2001] Env LR 22 at §§ 108—110];  and that the “common currency” supersedes the environmental statements in a radical way and should have been the subject of publication, notification and consultation. 

[63]      In oral submissions senior counsel for the RSPB referred to the unshared information as “dual use” and “dual function”, meaning that it is used for both the Habitats Regulations “appropriate assessment” and for the Electricity Works EIA Regulations environmental impact assessment: therefore, it is submitted, the information cannot be excepted from the informational participation provisions of the Electricity Works EIA Regulations on the ground that it is employed for the “appropriate assessment”.  Reference is made in this connection to the Neart na Gaoithe pre-application “scoping opinion” issued by the ministers in terms of the Electricity Works EIA Regulations reg. 7.  This requires information about impacts on SPAs to be included in the Neart na Gaoithe environmental statement [13/28, at 27, 32—35].  The “non-technical summary” of the the Neart na Gaoithe environmental statement, at § 1.8.2, states: “Thirteen species of seabird were considered to be key species... on account of the high numbers present at certain times of the year, the likely high connectivity to Special Protection Areas (SPAs) (nine species), and their sensitivity to potential impacts.”  The 51-page ornithology chapter of the environmental statement attempts to identify the impacts.  The supplementary environmental statement includes an ornithology technical report which largely replaces the original chapter.  Section 2.4 states in terms that impacts on SPAs should be considered “as part of the EIA regulations”.  .

[64]      The issue of impacts on the SPAs, which is the focus of the “appropriate assessment”, is necessarily part of the general environmental impact assessment, according to the RSPB submissions.  It is submitted that the Inch Cape environmental impact assessment for the purpose of the Electricity Act 1989 section 36 decision gives consideration to the question of impacts on the SPAs on the basis of the information in the “appropriate assessment” [6/1, 8—10 with reference to “ANNEX E”, 22, 26—27 with reference to “ANNEX E”, 29—30:  there is actually no “ANNEX E” in the copy produced and this possibly suggests that the original plan, subsequently departed from, was to incorporate the “appropriate assessment” as the fifth annex to the section 36 decision. “ANNEX E”, a copy of the “appropriate assessment”, was the fifth of eight annexes A—H attached to the submission to ministers dated 7 October 2014].

[65]      The RSPB responds to the “no prejudice” submissions (see below) by citing Berkeley [Berkeley v Secretary of State for the Environment, Transport and the Regions (No.1) [2001] 2 AC 603 at 613E—618B per Lord Hoffmann].  It is accepted that whether to set unlawful administrative decisions aside is a matter for the Court’s discretion. According to the RSPB the onus is on the parties who contend that the Court’s discretion should not be exercised.  It is for those parties to show that a regular consultation procedure would have made no difference to the outcome.           

 

Ground A: submissions for the ministers

[66]      The leading submission for the ministers is that the information used to support the “appropriate assessment” does not, and cannot come within the statutory definition of “the environmental information” in terms of the Electricity Works EIA Regulations and is therefore not subject to the informational participation processes for the environmental impact assessment.  The information tables are inspecific and generally fail to recognise that the information relates to “work” for the “appropriate assessment” in terms of the Habitats Regulations and not to the environmental impact assessment in terms of the Electricity Works EIA Regulations.

[67]      The ministers have provided a tabular response [13/47] to the RSPB’s information table [6/5 and 6/36].  The ministers’ table has comments on the nature and use made of the allegedly unshared documentation.  Inch Cape has annotated the ministers’ response table to allocate the documents to the categories used in Inch Cape’s Answers and Note of Argument as follows [7/15]:

 

“1.       It relates specifically to the Appropriate Assessment under the Conservation (Natural Habitats, &c.) Regulations 1994 and the Conservation of Habitats and Species Regulations 2010, not to the environmental impact assessment under the Electricity Works Regulations.

 

2.         It is not ‘substantive information’... in terms of the definition of additional information... under the Electricity Works Regulations.

 

3.         It is a representation duly made by a consultative body or other person... in terms of... regulation 2 of the Electricity Works Regulations.

 

4.         It is an internal communication or advice from [the ministers’] internal advisers... and consultants.”

 

 

The numerical categorisation represents the ministers’ position too; and Inch Cape’s annotated table was founded on in the oral submissions for the ministers. Ninety-one of the 150 documents are categorised as “relates specifically to the Appropriate Assessment”.  Of the 48 information table documents specifically referred to in the RSPB’s oral submissions, 34 are categorised by Inch Cape as “relates specifically to the Appropriate Assessment”.

[68]      All the documents founded on by the RSPB in its ten point analysis of unshared information, except one, are categorised as “relates specifically to the Appropriate Assessment”.  The following is representative of the ministers’ tabulated comments [7/15, document 61]:

 

“This email provides SNCBs with the MacArthur Green puffin PVA report. MS-LOT consider that this was not “additional information” as it was to inform the appropriate assessment and therefore should be considered under the Habitats Regulations for which there is no requirement for the information to be made public.”

 

 

The ministers’ oral submissions responded item by item to the RSPB’s ten points. The response described the points as “only for the ‘appropriate assessment’”, “very specifically relates to the ‘appropriate assessment’”, “part of the ‘appropriate assessment’”, “for the purpose of assessing the effects on individual SPAs” and so on.  I have checked the ten points against the “appropriate assessment” and can confirm that the material is relied on for the “appropriate assessment”.  I give three examples: the “common currency”, represented by documents 6/36/22, 6/36/28, 6/36/29, 6/36/34 and 6/36/37, is expressly referred to in the “appropriate assessment” at pages 16, 17, Table 1, pages 18, 19, 20, 23, 29, 33, 37, 38, 39, 40, 70, App 4, App 6 and App 7;  the MacArthur Green report, PVA [population viability analysis] of Bass Rock gannets, document 6/36/56, is expressly referred to in the “appropriate assessment” at Table 1, pages 26, 28, 29, 34, App 1 and App 3; and material on the development and application of ABC, ruABC [acceptable biological change and reduced uncertainty acceptable biological change] and interpolation or “scalar” methodologies, represented by documents 6/36/140 and 6/36/146, is expressly referred to in the “appropriate assessment” at Table 1, pages 24, 25, 26, 27, 31, 33, 38, 41, 45, 69, 70, 75, 81, 82, App 3 and App 5.

[69]      The ministers contend that it is for the ministers as the competent authority to decide whether “further information” is required and whether or not particular information is, or is not, “additional information”: their decisions on such matters are planning judgements subject to review only on Wednesbury grounds.  If there were an obligation to publicise literally any “environmental information”, whether or not “additional information” or “further information” in the judgement of the competent authority, “there would be an endless stream of documents” requiring to be processed.  In this case there was full compliance with the publication, notification and consultation requirements of the Electricity Works EIA Regulations reg. 14A.

[70]      The ministers submit that in any event the allegedly unshared information was, in legal terms, sufficiently accessible through the Environmental Information (Scotland) Regulations 2004 which, giving effect to Environmental Information Directive 2003/4/EC, require Scottish public authorities to make “environmental information” available on request.  The RSPB contributed to the environmental impact assessment and the “appropriate assessment” in various ways: by frequent informal contact between MS personnel and RSPB officers by email, telephone and correspondence and by participation in MS research project steering groups [13/38, Summary Table of Information provided to the RSPB]; by engaging directly with Inch Cape and other applicants [13/39, Details of Engagement between the Developers and the RSPB]; and by ministerial level contact [13/40, Ministerial Level Correspondence between the RSPB and the ministers].  As regards information from internal advisers and information commissioned from external consultants, the ministers submit that it cannot be a breach of the Electricity Works EIA Regulations for the ministers to fail to require Inch Cape to do something (in the way of processing material as “further information”) which the regulations themselves do not require.

[71]      According to the ministers there is no breach of any common law duty to consult. In relation to the “important documents not received”, a general point made by the ministers is that the RSPB consistently refused to engage with the idea of acceptable thresholds of population change expressed as annual percentage reductions.  The RSPB’s preferred metric is the so-called “counterfactual” approach, expressing overall population changes, with and without impacts, after 25 years, the lifetime of the projects.  If the RSPB does not engage, say the ministers, it is difficult to understand that the provision of further detail for the assessment of thresholds will make a difference [6/21, email to MS, 23 September 2014].

[72]      The matters about which the RSPB now complains, say the ministers, were matters of which the RSPB was aware from an early date.  The reduction in turbine numbers—in the case of Inch Cape a reduction from 213 to 110—was shared with the RSPB by email dated 17 April 2014 [6/7].  There was a meeting between Seagreen and the RSPB on 29 May 2014 at which Seagreen made a presentation.  The presentation included discussion of greater turbine spacing, raised hub heights and reduced displacement rates, the use of ABC [acceptable biological change], ruABC [reduced uncertainty acceptable biological change] and PBR [potential biological removal] for setting thresholds, and the use of the “extended Band model” to assess collision risk.The RSPB complaint that MS-LOT stopped taking RSPB representations on board after early 2014 is not well-founded:  MS was willing to meet with the RSPB and did so at the end of July 2014.  The receptiveness of MS is illustrated by the fact that Appendix 7, showing “counterfactuals”, has been added to the draft “appropriate assessment”.  Under reference to answer 24 for the ministers, it is submitted that the RSPB’s challenge cannot succeed without demonstrating prejudice; and that there is an absence of cogent material to show prejudice.  This goes to the question of fairness.

[73]      As to the “important documents”, document (1), the MacArthur Green Forth Islands SPA puffin PVA [population viability analysis] report, 9 May 2014 [6/36/61], has no relevance to the RSPB’s preferred “counterfactual” metric.  The puffin population is increasing.  It is not clear that knowing about the report would have made any difference to the RSPB.  The RSPB was a member of Avoidance Rate Review Project Steering Group [PSG] along with the SNCBs and the applicants’ ecological advisers.  If the RSPB were unaware of the terms of document (2), the SNCBs’ Key Advice on SPA Seabird Interests, 6 June 2014 [6/36/64], the document would have been provided on request. The MSS advice on displacement rates, 12 June 2014, contained in document (3) [6/36/66, also 6/36/67], was about a refinement of the worst case scenario with higher hub heights and reduced turbine densities to offer a more precautionary approach without adjusting modelled displacement rates [see “appropriate assessment”, 16 and 17].  An example of material that would not have made a difference is document (4), CRM [collision risk modelling] outputs [6/36/73, 6/36/70, 6/36/78].  The same is true of the documents (5), relating to ABC [acceptable biological change] methodology [6/36/5 and 6/36/6; 6/36/16 and 6/36/17; 6/36/18; 6/36/21; 6/36/23; 6/36/25; 6/36/26 and 6/36/27; 6/36/32; 6/36/79 and 6/36/80; 6/36/85—6/36/91; 6/36/95; 6/36/106; 6/36/107; 6/36/109; 6/36/112; 6/36/117; 6/36/119; 6/36/146].  In substance, it is submitted, the interpolation documents, (6) [6/36/59, 6/36/142 and attachment 6/36/60, 6/36/64, 6/36/69], are simply about variations in the relative contributions of adult mortality and reduced productivity to thresholds: the variations do not change the thresholds; and the basic interpolation methodology is well-evidenced in the paper “MSS interim ornithology advice to MS-LOT” attached to the email of 28 April 2014.  The RSPB was copied in [13/64, document 21].  As for document (7), description of “scalar” interpolation method [6/36/69], it is to be inferred that the RSPB was aware of this when it wrote to the cabinet secretary on 12 May 2014 complaining about “the use of unsubstantiated methods” [6/15].

[74]      The ministers plead that the RSPB took part in the decision-making process as a “non-statutory consultee” [answer 24].  If there were any failure or delay in making information available, which is denied, (i) the RSPB has not been substantially prejudiced and (ii) reducing the decisions would be disproportionate having regard to the public interest, the interests of the applicants and the steps taken to involve and engage with the RSPB.  The ministers submit that no analysis now offered by the RSPB would have altered the conclusion of the “appropriate assessment”.  Reduction remains a discretionary remedy even where there is breach of a European Law obligation [Walton v Scottish Ministers 2013 SC (UKSC) 67 at § 139 per Lord Carnwath].

 

Ground A: submissions for Inch Cape and the other interested parties

[75]      Inch Cape and the other interested parties adopt the oral submissions of the ministers and add points of their own.

 

Inch Cape

[76]      The essential argument for Inch Cape in relation to Ground A is that the RSPB makes the mistake of conflating the environmental impact process with the “appropriate assessment” process; and that there are no mandatory public participation requirements in relation to information specifically relevant to the “appropriate assessment”. The “appropriate assessment” can be carried out behind closed doors subject only to the statutory requirement for consultation with the SNCBs.  The argument was supported in oral submissions with a careful analysis of the legislation, for which I am grateful.

[77]      If there has been procedural irregularity or unfairness, which is denied, the RSPB has failed to demonstrate how this causes prejudice to the RSPB. In any event the remedy of reduction is disproportionate. Technical advances are being made all the time.  By letter dated 27 October 2014 Inch Cape informed MS that the total rotor swept area for the project could be reduced from 230,000 m² to 165,000 m², the former figure being the figure on which collision risk modelling for the “appropriate assessment” had been based [7/23].

 

Seagreen

[78]      Seagreen emphasises its engagement with the RSPB with reference to the note of the discussion, and the power point presentation slides shown on 29 May 2014 [13/54].  Seagreen questions the motivation of the RSPB. It is submitted that the expressions used in the RSPB’s letter to the cabinet secretary of 18 April 2013 are emotional rather than objective, for example “preventing mass mortality of birds” [13/40, letter 1].  Seagreen invites the Court to infer that the RSPB has been engaging with government and lobbying at the highest level in order to impede offshore wind developments until the RSPB can satisfy itself that the science supports an assessment of impacts without the recourse to thresholds and until marine SPAs are classified in Scottish waters as part of the Natura network [13/40, letter 3, to cabinet secretary, 26 November 2013, re Beatrice and Moray projects and marine SPAs].  The RSPB’s current challenge, it is said, threatens to involve the Court in a political issue: “...the Commission stated in its communication on the precautionary principle that judging what is an “acceptable” level of risk for society is an eminently political responsibility”; and the Court must not be drawn into a detailed re-assessment [Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en Visserij (Waddenzee) (C-127/02) [2004] ECR I-07405, [2005] 2 CMLR 31 at §§ AG100, AG109].  Senior counsel cites Kennedy in support of the proposition that the ministers’ decisions are “political judgements” subject only to “low intensity review”, like the decisions of specialist tribunals which depend on a proper understanding of the relevant science [Kennedy v Information Commissioner [2015] AC 455 at §§ 51—55 per Lord Mance JSC].

[79]      Seagreen also submits in relation to Ground A that the RSPB erroneously conflates the environmental impact assessment process with the “appropriate assessment” process. The Commission guidance illustrates the typical environmental impact assessment procedure and contrasts it with the “appropriate assessment” procedure.  Decision-makers have to carry out their own work for the “appropriate assessment”; their internal communications do not form part of the environmental impact assessment; and the guidance flow chart shows no consultation after an early point, the scoping phase, in the “appropriate assessment” process [EU Commission Guidance Document, Wind Energy Developments and Natura 2000 (Luxembourg, 2011), §§ 2.5, 5.4, 71—80 including fig. 12 at 72]. On a proper analysis there is no room for the RSPB’s “duality of function” argument: it is a misconception to think that any and all information produced for the “appropriate assessment” falls to be treated as “environmental information” under the Electricity Works EIA Regulations.

[80]      The RSPB’s information tables, according to Seagreen, do not provide adequate specification and fair notice of the RSPB’s “procedural” complaints.  The information tables represent a “scattergun” approach; and it is not appropriate for the Court to “examine every pellet in detail” [R (on the application of Richardson) v North Yorkshire CC [2004] 1 WLR 1920 at § 80 per Simon Brown LJ; Smyth v Secretary of State for Communities and Local Government [2016] Env LR 7 at § 8 per Sales LJ].  The ten examples offered in oral submissions by the RSPB do not explain why or how the other 140 documents support the claim that the material should have been treated by the ministers and the developers as “additional information”.  An environmental statement is meant to be “a single and accessible compilation”, not a “paper chase” [Berkeley v Secretary of State for the Environment, Transport and the Regions (No.1) [2001] 2 AC 603 at 617D—F per Lord Hoffmann];  and there is no question of the “appropriate assessment” constituting a replacement of the addenda to the environmental statements.  The obligation on decision-makers in terms of the Electricity Works EIA Regulations reg. 4(1)(b) is to make the environmental impact assessment on the “environmental information” available.

[81]      Seagreen’s oral submissions continue to the effect that there is no requirement in the legislation or at common law for an objector like the RSPB to be afforded the time that is necessary for consultation from the objector’s point of view.  Investigation was ongoing in two areas: there was general research to enhance knowledge of the interactions between birds and wind turbines at sea; and there was specific research to support the assessment of the four Forth and Tay applications.  The function confided to the ministers was to make their determination at the point when they judged that the material enabled them to be satisfied to the requisite standard: their role was not to wait until the RSPB had resolved the RSPB’s issues [Smyth v Secretary of State for Communities and Local Government [2016] Env LR 7 at §§ 78—81 per Sales LJ].  The science has continued to develop.  Many detailed points have emerged since the processes were completed [eg 13/18, 13/40, 13/98].

[82]      In the event that there has been a failure to consult, Seagreen submits that no substantial prejudice has been suffered by the RSPB and that the Court should exercise its discretion to withhold the remedy of reduction [R v Panel on Take-overs and Mergers  ex parte Guinness Plc [1990] 1 QB 146 at 192B per Lloyd LJ;  R v Liverpool Magistrates Court  ex parte Ansen [1998] 1 All ER 692 at 699D; R (on the application of Garg) v Criminal Injuries Compensation Authority [2007] EWCA Civ 797 at § 44 per Smith LJ with whom the other members of the Court agreed].  This approach is also reflected in cases about compliance with EIA procedures [Walton v Scottish Ministers 2013 SC (UKSC) 67 at § 139 per Lord Carnwath;  McGinty v Scottish Ministers 2014 SC 81 at § 55 per Lord Brodie giving the Opinion of the Court].

 

Neart na Gaoithe

[83]      The Neart na Gaoithe submissions in relation to Ground A highlight the amount of work carried out by the applicants, much of it, it is said, with the involvement of the RSPB, to address the environmental issues in general and the ornithological issues in particular. The Neart na Gaoithe Note of Argument presents the most developed submission on the fall-back position, namely that even if the ministers’ decisions are unlawful the Court should decline to set the ministers’ decisions aside.  The propositions derived by Neart na Gaoithe from the case law are that judicial review remedies are always discretionary; that in exercising its discretion the Court should take into account the public interest in, and the needs of sound public administration, notwithstanding some illegality or prejudice to particular parties; that the Court should make its decision in the light of all circumstances existing at the time of the hearing; that the Court is entitled to have regard to the nature and significance of the flaw, the conduct of the claimant, whether the claimant has suffered substantial prejudice and the utility of granting the relief sought; and that a breach of European Law does not require the quashing of flawed administrative decisions regardless of the consequences for wider public interests [R v Panel on Takeovers and Mergers ex parte Datafin Plc [1987] QB 815 at 840 per Sir John Donaldson; R v Gateshead MBC ex parte Nichol (1988) 87 LGR 435 per Taylor LJ; R v Secretary of State for Foreign and Commonwealth Affairs ex parte Everett [1989] 811 at 818H per O’Connor LJ; Credit Suisse v Allerdale BC [1997] QB 306 at 355D per Hobhouse LJ; R v Islington LBC ex parte Degnan (1998) 30 HLR 723 at 730 per Auld LJ; R (on the application of Laporte) v Newham LBC [2004] EWHC 227 (Admin) at § 29; Bahamas Hotel Maintenance and Allied Workers Union v Bahamas Hotel Catering and Allied Workers Union [2011] UKPC 4 at § 40 per Lord Walker citing O'Reilly v Mackman [1983] 2 AC 237 at 280—281 per Lord Diplock and R v Dairy Produce Quota Tribunal for England and Wales ex parte Caswell [1990] 2 AC 738 at 749 per Lord Goff of Chieveley; Walton v Scottish Ministers 2013 SC (UKSC) 67 at §§ 138—140 per Lord Carnwath].       

[84]      According to Neart na Gaoithe the circumstances in the present case argue against setting the decisions aside. The RSPB was consulted on the environmental statements and addenda and provided detailed responses.  The RSPB was represented on project steering groups for the report commissioned from CEH on population dynamics and on displacement (see above), the report commissioned from MacArthur Green on collision risks, and the report commissioned from the British Trust for Ornithology [“BTO”] on “avoidance rates”.  The RSPB participated in many meetings and discussions with MSS, the SNCBs and the developers about the development of impact assessment methodologies [see answer 23 for the ministers].

[85]      As Neart na Gaoithe understands it, the RSPB’s complaint is about exclusion from the “appropriate assessment” process (rather than from the environmental impact assessment process).  But, it is said, the RSPB fails to show any prejudice: the RSPB’s preferred “counterfactual” methodology is considered in the “appropriate assessment”;  and the reservations expressed by the SNCBs about the methodology adopted are subject to reasoned evaluation.  The RSPB does not state what further input would have resulted from more consultation or what difference further input would have made.  Neart na Gaoithe has spent three years gathering site survey seabird data.  Neart na Gaoithe has reduced the number of turbines and increased hub heights to mitigate impacts.  It is submitted that no purpose would be served by re-running the process.  Money and time would be wasted in re-visiting matters already analysed and consulted on.  Many parties would be put to further expense with no different result.  There would be considerable prejudice to Neart na Gaoithe as a substantial economic endeavour would be substantially delayed. 

  

Ground A: decision on the merits and reasons

[86]      My decision is that Ground A of the challenge is made out.  With some qualifications and reservations I accept the RSPB submissions and reject the submissions of the ministers and of Inch Cape and the other interested parties.  The question of the remedy, if any, will be considered separately.

[87]      As I see it the determining issues raised by the submissions are (1) whether the information was unshared, (2) whether the information was “substantive”, (3) whether the information was used for the “appropriate assessment” and (4) whether the “appropriate assessment” or the data it contained fed into the environmental impact assessment.  All of these issues have to be answered in the affirmative.  The RSPB may have received, or accessed the information at some stage: but the information was not part of the environmental statements or flagged as “additional” or “further” information; and the RSPB did not get the information in time for the consultation deadline of 26 March 2014, or in time for a considered response before that deadline.  The ministers correctly told the RSPB on 1 August 2014 that it was too late to consider “any additional or new information” from the RSPB.  The applicants would have had cause for complaint if the ministers had treated representations made by the RSPB after the consultation deadline as “additional information” because, as indicated above, this is not authorised by the Electricity Works EIA Regulations. Insofar as the information was used for the “appropriate assessment” it can properly be called “substantive” without further analysis; and the ministers themselves insist, in relation to the majority of documents, that the information was “to inform the ‘appropriate assessment’”.  The “appropriate assessment” or the information it contained was used as, or as if, “environmental information” for the purpose of the Electricity Works EIA Regulations environmental impact assessment which is integral to the Electricity Act 1989 section 36 decision.

 

The terms of the Electricity Act 1989 section 36 decision

[88]      On this last point, given the terms of their section 36 decision, the ministers’ contrary position is untenable.  Whatever the ministers now say, the ministers made their evaluation taking into consideration the “appropriate assessment” as part of, or as if part of, “the environmental information” in terms of the Electricity Works EIA Regulations.  This is set out in black and white in the section 36 consent letter [6/1, 26, key words in bold below; cf. Note of Argument for the ministers, no. 17 of process, §§ 4.2.4 and 8]:

 

“THE SCOTTISH MINISTERS’ CONSIDERATION OF THE ENVIRONMENTAL INFORMATION

 

The Scottish Ministers are satisfied that an ES [Environmental Statement] has been produced in accordance with the 2000 Regulations and the 2007 Regulations and the applicable procedures regarding publicity and consultation laid down in the 2000 and 2007 Regulations have been followed.

 

The Scottish Ministers have taken into consideration the environmental information, including the ES [environmental statement], the AA [appropriate assessment] and the representations received from the consultative bodies, including SNH, the JNCC, SEPA, and from Angus Council, Dundee City Council, East Lothian Council, Fife Council and Scottish Borders Council...

 

... The Scottish Ministers have also, as per regulation 4(2) of the 2000 Regulations, and regulation 22 of the 2007 Regulations taken into account all of the environmental information and are satisfied the Company has complied with their obligations under regulation 4(1) of those Regulations and regulation 12 of the 2007 Regulations.”

 

 

 

The expression “the environmental information” in this passage of the consent letter, so far as relating to “the 2000 Regulations”, should be read as having the meaning assigned for the purpose of the “the 2000 Regulations” ie the Electricity Works EIA Regulations. The reasons for saying this may be obvious: but let me spell them out.  First, the expression “the environmental information” used in the heading and in the text of the section is the expression used in regulation 4 of the Electricity Works EIA Regulations, which expression is given “a particular statutory meaning”, as it is put in the ministers’ own submissions. Secondly, in the absence of a different definition in the seven-page glossary of terms at annex 3 of the decision letter, the expression “environmental information” should, context permitting, have its statutory meaning.  The context here actually invokes the particular statutory meaning, which leads to the third point, namely that this section of the decision letter is about, and is the obligatory certification of, compliance with the Electricity Works EIA Regulations.  Crucially for present purposes the section is about compliance with regulation 4(2) which provides that “the Scottish Ministers shall not grant the required consent unless... (b) they have taken into consideration the environmental information... and state in their decision in relation to that consent that they have done so”.  Last, this section is followed by a section with the contrasting heading “THE SCOTTISH MINISTERS’ CONSIDERATION OF THE POSSIBLE EFFECTS ON A EUROPEAN SITE” which separately introduces the findings of the “appropriate assessment” in terms of the Habitats Regulations.

[89]      There is one difficulty. It arises from the other set of regulations referred to in the quoted passage, namely “the 2007 Regulations”.  The glossary of terms annexed defines the expression “the 2007 Regulations” as “the Offshore Marine Conservation (Natural Habitats &c) Regulations 2007 (as amended)”, which is one of the two sets of Habitats Regulations. This is a mistake. Alternatively, there is a mistake in the text which applies the expression “the 2007 Regulations” to both “the Marine Works (Environmental Impact Assessment) Regulations 2007 (as amended)” and “the Offshore Marine Conservation (Natural Habitats &c) Regulations 2007 (as amended)”.  All the indications are that in the passage quoted the expression “the 2007 Regulations” means “the Marine Works (Environmental Impact Assessment) Regulations 2007 (as amended)”—referred to in this Opinion as the “Marine Works EIA Regulations”—which, at regulations 12 and 22, contain provisions which are substantially in point [6/1, 6, 8, 26 and 64].  I say “substantially” because “environmental information” is not a defined term for the purpose of the Marine Works EIA Regulations; and, although the term “environmental information” is not used, regulations 12 and 22 refer to items, including the environmental statement “containing the information specified in schedule 3”, which is properly described as “environmental information” in a non-defined sense.  As all parties agree, decision documents should not be subjected to detailed textual analysis [South Buckinghamshire District Council v Porter (No. 2) [2004] 1 WLR 1953 at § 36 per Lord Brown of Eaton-under-Heywood; Moray Council v Scottish Ministers 2006 SC 691 at §§ 28—32 per Lord Justice-Clerk with whom the other members of the Court concurred].

[90]      I accept the RSPB submission that the “appropriate assessment” is part and parcel of the Marine Works EIA Regulations environmental impact assessment as it is of the Electricity Works EIA Regulations environmental impact assessment.  This will be further explained below. Just to be clear, I do not accept that every reference to the “appropriate assessment” in the Electricity Act 1989 s. 36 decision means that the “appropriate assessment” was fed into the Electricity Works EIA Regulations environmental impact assessment.  After all, a positive “appropriate assessment” is a pre-condition of the Electricity Act 1989 section 36 consent and references to the “appropriate assessment” in this connection are to be expected: but the quoted passage at page 26 of the section 36 decision is in my view unequivocal.

 

Environment and habitats: scope of the regulations and relationship between them

[91]      Standing back from the terms of the decision and surveying the regulatory landscape, it has to be a mistake, anyway, to think that the “environmental impact assessment” could ever be separated from the “appropriate assessment”.  The blame lies to some extent with the obscurity of the language.  The expression “appropriate assessment” belongs with “indistinctly applicable measures” in the shorter primer of opaque Euro-speak. An assessment is “appropriate” where it is documented, reasoned and serves the purpose of assessing, to the requisite standard, the implications of a plan or project for a protected site having regard to the site’s conservation objectives [EU Commission Guidance Document, Wind Energy Developments and Natura 2000 (Luxembourg, 2011), § 5.4 “Purpose of Appropriate Assessment”; R (on the application of Champion) v North Norfolk DC [2015] 1 WLR 3710 at § 41 per Lord Carnwath with whom the other members of the Supreme Court agreed]. Whether the Inch Cape “appropriate assessment” can truly claim to be “appropriate” is of course a contentious issue in these proceedings.  In the present context, which concerns protected species habitats sites, a better descriptive term, which at one and the same time links and contrasts the two kinds of assessment without importing a possibly debatable qualitative meaning, is “habitats impacts assessment”.  Where both kinds of assessment have to be made, consideration of the “environmental impact”, as the RSPB submits, necessarily includes the more focused and more stringent “habitats impacts assessment” as a kind of “sub-set”.  (More is said about the “appropriateness” of assessments below.)

 

Subject matter: impacts and effects on individual birds and on species populations

[92]      I say this as a matter of principle.  Even if this is not accepted as a matter of principle, it must be so in this particular case because of the overlap or identity of subject matter as between the “habitats impacts assessment” relating to the Forth Islands and Fowlsheugh SPAs and the ornithological component of the environmental impact assessment.  The ornithological component is immediately concerned with direct impacts on individual birds, many belonging to protected populations, due to collision, displacement and barrier effects and also with the knock-on effects on the qualifying species populations of the SPAs;  and the “habitats impacts assessment” is concerned with impacts on the populations of the SPAs due to collision, displacement and barrier effects on individuals of the qualifying species.  As the ministers’ witness Finlay Bennet puts it [affidavit of F Bennet, 13/93, § 5]:

 

“Much of the focus of the Appropriate Assessment is with respect to the potential effects on seabirds (collision, displacement and barrier effect). A crucial additional element is the consideration of the overall impact, and the acceptability of that impact on the populations.”

 

 

I reject the submission which I noted at the hearing that the “main effects on the environment” do not include the “adverse impacts on the SPAs”.

[93]      In terms of the EIA Directive 2011/92/EU in force when the decision-making started in 2013, the environmental impact assessment in this sort of case has to address “likely significant effects of the development on the environment, which should cover the direct effects and any indirect, secondary, cumulative, short, medium and long-term, … effects” [EIA Directive 2011/92/EU art. 3, unamended; Electricity Works EIA Regulations sched. 4 part I (3);  section 36 consent decision, “impact on birds”, 29—31, “cumulative impact of the developments”, 35].  As stated above the criteria for judging significant effects include “paying particular attention to… special protection areas designated by EEA States pursuant to Directives 79/409/EEC [the Birds Directive] and 92/43/EEC [the Habitats Directive]”.  In a mirror image, the “habitats impacts assessment” for each of the protected sites has to “target developments situated outside the site but likely to have a significant effect on it" [Habitats Directive 92/43/EEC art. 6(3);  Habitats Regulations 1994 reg. 24; Managing Natura 2000 Sites: the provisions of Article 6 of the ‘Habitats’ Directive 92/43/EEC (European Communities, Luxembourg, 2000, revised), § 4.2].

 

The ministers’ handling of the applications
[94]      Quite apart from the terms of the section 36 decision, the terms of the legislation, the terms of the guidance and the identity of subject-matter, there is practical proof in the handling of these applications that the environmental impact assessments do actually include what I call the “habitats impacts assessment”, or to revert to the statutory language, the “appropriate assessment”, at least up to a certain stage.  This is the documented view of the ministers as appears from the Neart na Gaoithe “scoping opinion”.  In terms of the Electricity Works EIA Regulations reg. 2, a “scoping opinion” means “a written statement of opinion of the Scottish Ministers as to the information to be provided in an environmental statement”. Scoping opinions are furnished in terms of regulation 7.  They are issued to applicants in advance of their applications.  The ministers’ scoping opinion for the Neart na Gaoithe environmental statement, dated 12 June 2012, includes the following [13/18, 29--30, 35]:

 

“The Habitats Directive builds on the Birds Directive by protecting natural habitats and other species of wild plants and animals. Together with the Birds Directive, it underpins a European network of protected areas known as Natura 2000. This network includes SPAs classified under the Birds Directive and Special Areas of

Conservation (SACs) designated under the Habitats Directive… Where a plan or project could affect a Natura site, the Habitats Regulations require the competent authority – the authority who has the power to undertake or grant consent, permission or other authorisation for the plan or project in question – to undertake a Habitats Regulations Appraisal (HRA). HRA applies to any plan or project which has the potential to affect a Natura site, no matter how far away from that site. HRA refers to the whole process set out in regulation 48 of the Habitats Regulations, including appropriate assessment, if required. Appropriate assessment is required when a plan or project affecting a Natura site:

 

• Is not connected with management of the site for nature conservation, and
• Is likely to have a significant effect on the site (either alone or in combination with other plans or projects).

   

  The competent authority, with advice from Scottish Natural Heritage (SNH), decides whether appropriate assessment is necessary and carries it out if so. Appropriate assessment focuses exclusively on the qualifying interests of the Natura site affected and must consider any impacts on the conservation objectives of the site. The applicant is usually required to provide the information to inform the assessment. A plan or project can only be consented if it can be ascertained that it will not adversely affect the integrity of a Natura site (subject to regulation 49 considerations)… The Environmental Statement should capture data which will inform appropriate assessments of impacts on the integrity of a number of seabird SPAs. Information will be required which will allow the seabird use of the windfarm site to be assessed in the context of the overall distribution and foraging behaviour of species from the scoped SPAs.”

   

   

  The Neart na Gaoithe scoping opinion is the only one referred to in any detail in submissions. (The Seagreen scoping opinion, 13/31, was mentioned in passing.)  The other scoping opinions are available online and, although in different terms, are to similar effect [online links at 6/4, 13].

  [95]      Consistently with the foregoing, the environmental statements submitted by Inch Cape and the other applicants, supplemented by addenda from Neart na Gaoithe and Seagreen, contain appraisals of the implications for the Forth Islands and Fowlsheugh SPAs in view of the SPAs’ conservation objectives in particular the long term maintenance of the qualifying species populations.  The Neart na Gaoithe Addendum of Supplementary Information (June 2013) states [13/89 on pen drive, “Addendum Ornithology Appendix 1 - Technical Report”, § 2.4]:

   

  “Although impacts on designated sites (including SPAs) should be considered as part of the EIA Regulations, this can be subsumed under the 'higher authority' of the Habitat Regulations for SPAs. Therefore, the assessment of predicted impacts arising from the development on SPAs is deferred to Chapter 11 (Nature Conservation) and dealt with within the information presented for Habitat Regulations Assessment.”

   

   

  The Seagreen addendum has a non-technical summary with the following explanation of “The Need for the Addendum” [13/86 on pen drive]:

   

  “The Seagreen Project is subject to an EIA, as required under the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2000 and the Marine Works (Environmental Impact Assessment) Regulations 2007, as amended by the Marine Works (Environmental Impact Assessment) (Amendment) Regulations 2011. Following submission of the consent applications in October 2012, Seagreen supplied Marine Scotland with an HRA [habitats regulations appraisal] Report under the Habitats Directive on 18^th April 2013. Marine Scotland subsequently confirmed in a letter dated 22^nd April 2013 that they consider the information as constituting additional information under the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2000 and the Marine Works (Environmental Impact Assessment) Regulations 2007, and they require Seagreen to advertise the HRA Report under addendum procedures. Seagreen sought clarifications with Marine Scotland, Scottish Natural Heritage (SNH) and the Joint Nature Conservation Committee (JNCC) on the content of the addendum before updating the HRA report and addendum as detailed below.”

   

   

  The Seagreen addendum although supplied as “an HRA [habitats regulations appraisal] Report under the Habitats Directive” was, as stated above, and as with the Neart na Gaoithe addendum, processed as “further information”, in other words as information which, in the judgement of the ministers, required to be provided “for the purpose of the environmental statement” and therefore, in each case, constituted information falling within the statutory definition of “environmental information”, all in terms of the Electricity Works EIA Regulations.  The addenda were not supplied as information “reasonably required” for the purpose of the Habitats Regulations “appropriate assessment” [eg The Conservation (Natural Habitats, &c.) Regulations 1994 reg. 48(2)]. The RSPB tells me that the addenda supply the information contained in the Inch Cape environmental statement, chapter 15 and its annexes (see above), so far as not already included in the environmental statements.

  [96]      This is not contested. In short, in the view of the ministers, the environmental statements required to contain appraisals of the implications for the Forth Islands and Fowlsheugh SPAs in view of the sites’ conservation objectives—and quite correctly, if I may say so. The reason given by the ministers for not consulting on the “appropriate assessment” is that: “… the general public have already had the opportunity to respond to the applications through the Environmental Impact Assessment (“EIA”) process where information regarding the potential impacts on European protected sites was available in the Environmental Statements…” [6/4, Introduction, 2—3].  I judge the ministers’ position, so expressed, to be self-contradictory and illogical, given their submission that the environmental impact assessment and the “appropriate assessment” are separate processes and that there is no need to consult on the “appropriate assessment”.

  [97]      It is also fair to point out, as the RSPB does, that the decision-making time-line is consistent with the “appropriate assessment” being one of the building blocks of the environmental impact assessments.  The “appropriate assessment” was substantially finalised by mid-July 2014; and the Electricity Act 1989 section 36 decision was issued on 10 October 2014.

   

  Integrating assessments: legislative proposals and EU policy

  [98]      During the course of the decision-making, following the amendment to the EIA Directive 2011/92/EU effective on 16 May 2014, the EIA Directive 2011/92/EU now provides for mandatory joining up of the processes for environmental impact assessments with development consent processes generally and with the processes for special types of environmental assessments (birds, habitats, water, industrial emissions, etc) with express mention of “appropriate assessments” for protected avian species habitats.  The amended EIA Directive 2011/92/EU provides that all environmental impact assessments “shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on… (b) biodiversity, with particular attention to species and habitats protected under [the Habitat] Directive 92/43/EEC and [the Birds] Directive 2009/147/EC …”;  and member states are required to issue guidance [EIA Directive 2011/92/EU, arts. 2 and 3; Directive 2014/52/EU recital 37, art. 1(2) and (3)].  The amending Directive 2014/52/EU was adopted on 14 April 2014, was published on 25 April 2014 [OJ L124], came into force on 16 May 2014, and has a transposition deadline of 16 May 2017.  Guidance and transposing regulations for Scotland are awaited.  Although the EIA Directive 2011/92/EU “as amended on 25 April 2014 by Directive 2014/52/EU” is on the parties’ joint list of relevant legislation, no party makes submissions about the effect of the amendment.

  [99]      I treat the amending legislation simply as evidence of the direction of travel; and as confirmation that there is nothing inherently “inappropriate” about bringing the respective assessment processes together, quite the contrary [for transitional arrangements for projects already “in the pipeline” see Directive 2014/52/EU, recital 39, regs. 2 and 3].  The existing European Commission guidance already recognises that an “appropriate assessment” can be integrated into the environmental impact assessment process provided only that there is a distinct record or separate report of the “appropriate assessment”, as there is in this case. Integrating the processes necessarily involves informational participation: “[w]here an assessment for the purposes of Article 6(3) takes the form of an assessment under Directive 85/337/EEC, this will provide obvious assurances in terms of records and transparency” [EU Commission Guidance Document, Assessments of Plans and Projects significantly affecting Natura 2000 Sites (Luxembourg, 2001), §§ 2.3, 2.4, 3.1.1 and 3.2.6; EU Commission Guidance Document, Managing Natura 2000 Sites: The provisions of Article 6 of the ‘Habitats’ Directive 92/43/EEC (Luxembourg, 2000, updated 2007), §§ 4.5.1, 4.6.2].

  [100]    As it happens there is an example in the Sweetman case, cited by the ministers, of certain legislation in the Republic of Ireland which requires that an “environmental impact assessment... shall be an appropriate assessment...” [Sweetman v An Bord Pleanála (C-258/11) ECLI:EU:C:2013:220, [2014] PTSR 1092 at § 10; European Communities (Natural Habitats) Regulations 1997 (as amended) reg. 30(2)].

  [101]    I wonder whether there is a transposition error in the United Kingdom legislation which distorts the intention of article 6(3) of the Habitats Directive 92/43/EEC and makes for difficulties in applying the European jurisprudence.  This point is explained below in connection with Ground B.1.  The point has a bearing on the questions raised in relation to Ground A about the role of consultation, about the place for evaluative judgements and the precautionary principle in article 6(3) decision-making, and about the scope and intensity of judicial review.  There is an argument that, in any event, an article 6(3) assessment can hardly be “appropriate” in a case like this one unless it engages fully with the views of the RSPB.  These things are not part of the RSPB case; parties have not made submissions about them; and they have not influenced my decision.

   

  Conclusions to be drawn in relation to Ground A

  [102]    So, my finding is that the ministers have considered the “appropriate assessment” as part of “the environmental information” for the purpose of the Electricity Works EIA Regulations and the Electricity (Scotland) Act section 36 decision.  Since the “appropriate assessment” does not, in terms, come within the statutory definition of “the environmental information” which the ministers are obliged to consider, there is a problem.  It might be said that the ministers have had regard to, legally speaking, irrelevant material: but no one makes this argument; and in “real world” terms the material is clearly germane, not to say essential.  The better view, as contended for by the RSPB, is that the substantive information supporting the conclusion of the “appropriate assessment”, not otherwise shared, should, in one way or another, have been processed in terms of the Electricity Works EIA Regulations. In other words there has been irregularity, whether merely procedural or substantive is to be decided.

  [103]    The analysis can be taken further. If the “appropriate assessment” data were to have been properly processed through another consultation round, there would also be further representations to add to the environmental information.  I say this because I accept that the RSPB would have made representations.  The RSPB pleads: “By failing to provide the [RSPB] with… the full environmental information including SNCB advice, assessment methods and data used for the formal decision making process, the respondents prevented the [RSPB] from providing an intelligent response and erred thereby” [Petition, art. 24].  The steps taken to recover undisclosed information imply that the RSPB was intent on making fully-informed responses.  There is explicit evidence, which I accept [6/37, affidavit of C Nathan, §§ 57, 63, 66].  So it can also be said that the ministers, contrary to the terms of their Electricity Works EIA Regulations reg. 4(2) certificate, have failed to take into consideration “all of the environmental information” because they have failed to take into consideration the hypothetical further representations.  I do not mean to labour this hypothesis: but I ask the reader to factor it in to the discussion about the lawfulness of the ministers’ decision-making below [cf. Wilson v Secretary of State for the Environment [1973] 1 WLR 1083 at 1096D—1097B].

  [104]    Since this is the view I take, there is no need to decide the RSPB’s common-law consultation claim.  I agree with the Neart na Gaoithe submission that there is limited scope for common-law consultation where there is a reasonably detailed statutory consultation scheme, as with the Electricity Works EIA Regulations.  Although the matter has been overtaken, I have to note that at times it was unclear and remains unclear whether the common-law consultation argument is about the Electricity Works EIA Regulations process or the Habitats Regulations “appropriate assessment” process.

  [105]    In relation to consultation for the “appropriate assessment”, it is correct, as the ministers submit, that whether or not to sound out the opinion of the general public and how to consult are matters confided to the discretion of the ministers in terms of the domestic legislation [Conservation (Natural Habitats etc) Regulations 1994 reg. 48(4); Offshore Marine Conservation (Natural Habitats etc) Regulations 2007 reg. 25(3)(f)]: but it is difficult to see that the ministers can lawfully decide not to consult at all if the “appropriate assessment”, as in this case, is to be fed into the Electricity Works EIA Regulations environmental impact assessment as “environmental information”.  However, an argument along these precise lines was not put.  Were common-law consultation to be a live issue then, paradoxically, the more the ministers attempt to rebut the charge by insisting that the RSPB has been involved in extra-statutory discussions, the stronger the argument might become for a right to be fully consulted in the meaningful sense referred to above.  Questions about the effect of the EIA Directive 2011/92/EU as regards consultation and about the interplay between the EIA Directive 2011/92/EU and the United Kingdom regulations are also superseded.

   

  Ground A: the remedy

  [106]    If the ministers see fit to take the “appropriate assessment” into consideration as, or as if, “environmental information” for the purpose of the Electricity Act 1989 section 36 consent decision—which they do—then the information must be processed to become “environmental information” properly so-called in terms of the Electricity Works EIA Regulations.  Should the new information be processed as “additional information” or as “further information”?

   

  Processing the new information

  [107]    I am not satisfied that the new information is capable of constituting “additional information” within the meaning of the Electricity Works EIA Regulations.  This is primarily for the reason that it does not fit the legal definition: it is neither provided voluntarily by Inch Cape for the purpose of the environmental impact assessment nor offered by the SNCBs as late consultation responses to the environmental statements (see above).  So, on this point I reject the submissions of the RSPB and accept the ministers’ submissions. Additionally the question whether ministerial judgements were flawed in failing to treat particular pieces of new information as “additional information” is not squarely addressed by the RSPB or not addressed at all in relation to most of the documents.  The ministers question the practicalities of processing “an endless stream of documents” as “additional information”, of which more below.

  [108]    Much of the new information was provided by MSS or by outside experts commissioned by MS. The Inch Cape Marine Works EIA Regulations reg. 22 decision states: “MSS have provided significant input into the AA” [6/2, pages un-numbered, section headed “Non-Statutory Consultees”]. Not all of this information was consulted on externally. The RSPB witness Charles Nathan describes the process as “unusual” [6/37, affidavit of C Nathan, §§ 71—73].  In his affidavit the RSPB witness Dr Alan McCluskie PhD depones that the ministers’ assessments “give the appearance of being policy or outcome led” [6/63, affidavit of A McCluskie § 51].  This raises the question whether the ministers have driven the process in pursuit of the policy objective set out in the section 36 consent document [6/1, 13]: “The Scottish Ministers remain fully committed to realising Scotland’s offshore wind potential and to capture [sic] the biggest sustainable economic growth opportunity for a generation”.  Or as the letter of 10 October 2014 from the cabinet secretary for sustainable growth to the RSPB puts it [6/22]: “[D]ue to the lack of previously established methodologies there was a clear need for MSS to meet emerging policy needs”.

  [109]    While the Electricity Works EIA Regulations envisage an arm’s length relationship between applicants and decision-makers, the European guidance does point to an “appropriate assessment” process which involves information inputs from a variety of sources including research undertaken or commissioned by “the competent authority”, in this case the ministers [EU Commission Guidance Document, Assessments of Plans and Projects significantly affecting Natura 2000 Sites (Luxembourg, 2001), § 3.2.1]:

   

  “As with the EIA process, the appropriate assessment will usually involve the submission of information by the project or plan proponent for consideration by the competent authority. The authority may use that information as the basis of consultation with internal and external experts and other stakeholders. The competent authority may also need to commission its own reports to ensure that the final assessment is as comprehensive and objective as possible... Where there are gaps in information, it will normally be necessary to supplement existing data with further survey fieldwork. In order to assist the nonspecialist in understanding the fieldwork that may be necessary, a guide to ecological baseline studies and impact prediction and to the assessment of significance is provided in Annex 1 to this guidance.”

   

  There is no reason to doubt the ministers’ submission that interactions between birds and wind turbines at sea constitute a developing area of knowledge; and that the ministers, the United Kingdom government, state agencies, energy companies and industry bodies, non-governmental organisations, academic institutions and commercial consultants are involved in ongoing research.  As the ministers submit, the decision-making is necessarily an “iterative” process: the science is new and developing and the assessment must be based, as a matter of law, on the best available scientific means [Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en Visserij (Waddenzee) (C-127/02) [2004] ECR I-07405, [2005] 2 CMLR 31 at § AG100].

  [110]    On this understanding I doubt that it would be practicable with a complex project like this one for the ministers to identify and process many individual pieces of new information as “additional information” in accordance with the Electricity Works EIA Regulations scheme.  In this I agree with the ministers.  Even now the Information Commissioner has ruled that it is “manifestly unreasonable” for the ministers to provide all relevant information in response to the RSPB’s freedom of information request.  On the other hand it is not fair to criticise the RSPB for adopting a “scattergun” approach when it is the ministers who have created the “paper chase” [cf. R (on the application of Richardson) v North Yorkshire CC [2004] 1 WLR 1920 at § 80 per Simon Brown LJ; Berkeley v Secretary of State for the Environment, Transport and the Regions (No.1) [2001] 2 AC 603 at 617D—F per Lord Hoffmann with whom the other members of the appellate committee concurred].

  [111]    A potential solution lies in the course recommended by the European Commission, namely to publish an “appropriate assessment report” for dual purpose consultation before making the final decision in terms of the Habitats Directive 92/43/EEC art. 6(3) [EU Commission Guidance Document, Assessments of Plans and Projects significantly affecting Natura 2000 Sites (Luxembourg, 2001), § 1.1 “Nature of the document; flow chart, Stage Two: Appropriate assessment”, 24; § 3.2.6 “Outcomes”, and fig 4].  In this case, if the decisions are to be re-made, the ministers might be advised to require the “appropriate assessment”—suitably edited for ease of reading and clarification and supplemented with details of the methodologies proposed to be used, where not already given and so far as necessary for understanding—to be processed as “further information” in terms of the Electricity Works EIA Regulations.

  [112]    The idea of seeking representations on an “appropriate assessment” in draft is not new to the ministers. Before committing to a “regional appropriate assessment” for all Forth and Tay projects, MS-LOT sent a draft of the at-that-time proposed, stand-alone Neart na Gaoithe “appropriate assessment” to SNH for comment. Returning to the present situation, a draft “appropriate assessment” can be consulted on by being processed as “further information” within the Electricity Works EIA Regulations process, as the Neart na Gaoithe supplementary environmental statement was.  I accept the evidence of Charles Nathan and Dr Alan McCluskie, for the RSPB—evidence addressed to the practical issue, not the legal issue—which points to a comprehensive further supplementary environmental statement (followed by another consultation round) as the way forward [6/37, affidavit of C Nathan, §§ 44, 51, 69, 71, 85; 6/63, affidavit of A McCluskie, 33 § 65].

  [113]    (In parenthesis I note that the draft Neart na Gaoithe “appropriate assessment” which was sent to SNH for comment contained the passage:

   

  “The Supplementary Environmental Information Statement (“SEIS”) submitted by NnG [Neart na Gaoithe] was also made available and consulted on. No public representations were received regarding the potential impacts on SPAs and SACs in relation to this development, therefore it is not deemed appropriate to consult the general public further.”

   

   

  On 30 May 2014 SNH commented:  “It seems odd and probably risky to disregard the representations from RSPB and WDCS [Whale and Dolphin Conservation Society] [6/36/143, email and attachment].”)

  [114]    Before there can be another consultation round on “further information” the existing section 36 decision has to be set aside by decree of reduction.  This is the remedy sought by the RSPB. The objection raised by the ministers and the interested parties is that, if it be the case that the ministers have omitted to provide any information (which is denied), the RSPB fails to demonstrate substantial prejudice; in any event the remedy is one that is within the discretion of the Court to grant or to withhold;  and that in the absence of substantial prejudice to the RSPB the remedy sought is disproportionate and the decisions should be allowed to stand.

   

  Ultra vires, procedural irregularity, prejudice and discretion in environmental cases

  [115]    The case law on decision-making in environmental cases is not easy.  The most recent authority cited to me (by email on 22 March 2016) is R (on the application of Champion) v North Norfolk DC [2015] 1 WLR 3710.  At paragraph 54 Lord Carnwath of Notting Hill JSC, with whom the other justices of the Supreme Court agreed, stated:

   

  “Following the decision of this court in Walton v Scottish Ministers [2013] PTSR 51, it is clear that, even where a breach of the EIA Regulations is established, the court retains a discretion to refuse relief if the applicant has been able in practice to enjoy the rights conferred by European legislation, and there has been no substantial prejudice: para 139 per Lord Carnwath JSC, para 155 per Lord Hope of

  Craighead DPSC.”

   

   

  Walton, in the Supreme Court, is not about a breach of the EIA Regulations [in Walton, the Environmental Impact Assessment (Scotland) Regulations 1999].  Mr Walton claimed to be “a person aggrieved”, in terms of the Roads (Scotland) Act 1984 (as amended) sched. 2, paras. 2 and 3.  His challenge was directed at certain draft schemes and orders for proposed public highways, the Aberdeen Western Peripheral Route [AWPR] with the Stonehaven Fastlink.  The challenge was directed at the Fastlink component in particular.  In the Supreme Court there was “no longer any complaint that the [environmental impact assessment] failed to meet the requirements of the EIA Directive [then 85/337/EEC]”.  The complaint was that the ministers had failed to comply with the requirements of the Strategic Environmental Assessment Directive 2001/42/EC [SEA Directive 2001/42/EC].  The Supreme Court held that the Stonehaven Fastlink was not a matter to which the SEA Directive 2001/42/EC applies; and, further, that there is no requirement in the Roads (Scotland) Act 1984 to undertake a strategic environmental assessment (as opposed to an environmental impact assessment) [Walton v Scottish Ministers 2013 SC (UKSC) 67 at §§ 43, 56, 59, 67—69, 79 per Lord Reed JSC with whom the other justices of the Supreme Court concurred].

  [116]    Lord Carnwath, with whom at least two of the other justices agreed on this point, expressed the view that even if a breach of the SEA Directive 2001/42/EC were a basis for challenge under the Roads (Scotland) Act 1984 sched. 2 procedure, the Court might well retain a discretion to refuse relief on grounds similar to those available in domestic law [§§ 133, 138--140].  I say “might well” because the argument was limited, senior counsel for the ministers having conceded that, if a breach of EU law were involved, any act of the ministers based on the breach required to be nullified by operation of the EU law principle of “effectiveness” [§ 115].  The ministers are, not unreasonably, cautious about these matters given that the Scotland Act 1998 section 57(2) disables members of the Scottish Government from doing any act which is incompatible with EU law.  One issue as I understand it is whether, even if otherwise excusable in domestic law, an act by the ministers which does not comply with a requirement of environmental regulations giving effect to EU law, substantive or procedural, would be ultra vires and liable to be set aside, subject to the relieving provisions of the Scotland Act 1998.  Lord Reed identified a number of questions that would arise “in an appropriate case” [§§ 80—81].

  [117]    Lord Carnwath took the opportunity, he said, “to dispel what seem to me misconceptions as to the effect of some of the authorities, in the hope of clearing the way to fuller argument in another case” [§ 115; cf. Bown v Secretary of State for Transport, Local Government and the Regions [2004] Env LR 26 at § 47 per Carnwath LJ with whom the other members of the Court of Appeal agreed].  His lordship noted that domestic legislation relating to approval of public projects and development control of private projects tends to provide for challenges under two heads, namely (1) that the decision “is not within the powers of” the legislation, ie is ultra vires; and (2) that “the interests of the applicant have been substantially prejudiced by failure to comply with any requirement” of the legislation in question. (The legislature uses varieties of language to achieve the same intendment—compare, for example, sections 287 and 288 of the Town and Country Planning Act 1990.)[2] Such provisions give effect to the distinction between substantive and procedural grounds recognised in the common law.  Where a substantive defect is established, “the court’s discretion to refuse a remedy will be much more limited” [§§ 108—112].

  [118]    His lordship considered the effect of the decision in Berkeley.  Berkeley is about a statutory application to the court by Dido Berkeley, Lady Berkeley, a “person aggrieved” by the planning permission granted for development on Fulham Football Club’s Craven Cottage site.  The proposal encroached on the Middlesex bank of the river Thames risking damage, it was claimed, to the habitats of plants, invertebrates, fish and birds.  Lady Berkeley’s application was made under the Town and Country Planning Act 1990 section 288.  Section 288 empowers the court to quash a planning permission if the permission “is not within the powers of this Act” or if “the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it…” Regulation 25 of the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 categorises grants of planning permission in contravention of regulation 4 as ultra vires acts for the purposes of Section 288 of the principal Act.  Regulation 4(2) prohibits granting planning permission for schedule 1 and 2 environmental impact assessment [EIA] developments without “having first taken the environmental information into consideration”.  The planning permission granted to the football club was granted for a schedule 2 EIA development without a prior environmental assessment contrary to the regulation 4(2) prohibition.  In Berkeley, therefore, there was a contravention of the prohibition, which contravention is statutorily classed as ultra vires.  The planning permission was quashed by the House of Lords on appeal [Berkeley v Secretary of State for the Environment, Transport and the Regions (No.1) [2001] 2 AC 603].

  [119]    In Walton Lord Carnwath observed that the Roads (Scotland) Act 1984 sched. 2 has the same sort of two-headed provision for quashing decisions [§§ 108, 109, 118, 119].  Section 20A of the same Act, inserted by the Environmental Impact Assessment (Scotland) Regulations 1999, requires the ministers to undertake an environmental impact assessment procedure for their new road projects falling within Annex I or Annex II.  The ministers must prepare, and publish notice of, an environmental statement.  The ministers are bound not to make a decision whether to proceed with a project without taking into consideration responses from members of the public, etcetera.  As Lord Carnwath noticed, there is no provision in the Scottish roads legislation for treating as ultra vires non-compliance with the requirements of section 20A [§ 120].  In Lord Carnwath’s view any failure to comply with section 20A therefore opens only the second statutory head or ground of challenge [§ 132]:

   

  “…under the 1984 Act, even in respect of EIA, a breach of the Regulations does not, as under the planning Acts, render the subsequent decision outside the powers of the Act. It is a breach of the requirements laid down by sec 20A, and as such is within the second ground of challenge, but is thus also subject to the need to show ‘substantial prejudice’.”

   

   

  This is subject to any overriding principles emerging from the European authorities [§ 133]. In Champion the Supreme Court had the benefit of an exposition of European principles in the recently decided case, Gemeinde Altrip and Ors v Land Rheinland-Pfalz (Vertreter des Bundesinteresses beim Bundesverwaltungsgericht intervening) (C-72/12) ECLI:EU:C:2013:422, [2014] PTSR 311.

  [120]    Returning then to Champion, that case is about the erection of two barley silos with a lorry park, wash bay and ancillary facilities at Ryburgh, Norfolk, close to the river Wensum. The river is designated a special conservation area [SCA] as a habitat of protected species, most importantly native freshwater crayfish.  The SCA was at potential risk of pollution by surface water run-off from the development.  The complaint of Matthew Champion, on behalf of the Ryburgh Village Action Group, was that North Norfolk District Council as planning authority had granted permission for the development without carrying out an environmental impact assessment [EIA] or an “appropriate assessment” [R (on the application of Champion) v North Norfolk DC [2015] 1 WLR 3710 at 3711C—D, 3714B].  This was said to be contrary to Town and Country Planning (Environmental Impact Assessment) Regulations 2011 [the EIA Regulations 2011] and contrary to the Conservation of Habitats and Species Regulations 2010.

  [121]    These claims were brought together by way of judicial review. At the risk of showing my ignorance of English law, my own understanding is that both claims could, perhaps should, have been brought under section 288 of the Town and Country Planning Act 1990. None of the judgments from the first instance onwards gives an explanation as to why the application was for judicial review [in the High Court, [2013] Env LR 859; in the Court of Appeal, [2014] Env LR 625].  Maybe it was because the focus was on mistakes at the screening stage rather than at the decision stage [3714C—E].  Maybe it was because an “appropriate assessment” claim was bundled with the EIA claim: but wasn’t the “appropriate assessment” claim, as well, amenable to the section 288 jurisdiction?  If, as contended, an “appropriate assessment” were required, then the council had no power in terms of the 1990 Act, read together with the Conservation of Habitats and Species Regulations 2010 reg. 61(5), to grant planning permission without a positive “appropriate assessment”.

  [122]    In its juristic essentials Mr Champion’s EIA claim was the same as Lady Berkeley’s: because of flaws at the screening stage, or what should have been the screening stage in Berkeley, the planning authority had mistakenly failed to treat the proposal as a schedule 2 EIA development. If Mr Champion had presented his EIA claim as a statutory application under section 288 of the Town and Country Planning Act 1990, he could have pleaded, as Lady Berkeley did under a previous version of the regulations, that the grant of planning permission without consideration of “the environmental information” was ultra vires [Berkeley v Secretary of State for the Environment, Transport and the Regions (No.1) [2001] 2 AC 603 at 607F—H per Lord Bingham of Cornhill, at 608H—609A and 616E—F per Lord Hoffmann; explained in  R (on the application of Edwards) v Environment Agency (No.2) [2008] 1 WLR 1587 at §§ 62—65 per Lord Hoffmann; Town and Country Planning (Environmental Impact Assessment) Regulations 2011 regs. 3 and 59].

  [123]    Mr Champion’s “appropriate assessment” claim failed altogether.  His EIA claim was upheld on the merits on the basis that the council’s mistake in not treating the proposal as a schedule 2 EIA development was “a procedural irregularity which was not cured by the final decision”:  but, in the exercise of its discretion, the Supreme Court declined to grant relief for the reason that: “there is no reason to think that a different process would have resulted in a different decision, and Mr Champion’s interests have not been prejudiced” [R (on the application of Champion) v North Norfolk DC [2015] 1 WLR 3710 at §§ 42, 53, 54—62 per Lord Carnwath with whom the other justices of the Supreme Court agreed].

  [124]    If, as I perceive it, the subject matter of the EIA claims in Berkeley and Champion is identical, it is odd that the classification of the decision-making defects—whether ultra vires or “procedural irregularity”—should depend on the form of action.  This is to treat regulations 25 and 59 of the 1988 and 2011 EIA Regulations respectively as deeming provisions of the narrowest kind.  There are alternative readings.  Where there is a prohibition on approving projects without prior assessment of environmental effects it is hard to see that non-compliance can be anything other than ultra vires, whether or not there is express provision to that effect.  I say this with the greatest respect to suggestions in the Supreme Court judgments to the contrary.

  [125]    Where did Walton leave the law on challenges to environmental decision-making and how has our understanding been advanced by Champion?  I treat what was said in Walton, mostly by Lord Carnwath, as determinative, even if strictly-speaking obiter, for the reason that it was endorsed by Lord Carnwath (with whom the other justices agreed) in Champion. Walton supports three propositions: (1) that in domestic law there is no remedy for a breach of common law procedural principles or for non-compliance with a statutory procedural requirement of the kind under examination unless the claimant shows that his or her own interests have been substantially prejudiced [§§ 110—113, 132;]; (2) that the courts’ powers to quash defective administrative decisions, on substantive or procedural grounds, generally involve a discretion, more or less narrow, not to grant relief, typically exercised by having regard to the nature of the flaw and weighing the balance of prejudice [§§ 125—129, 131; at § 156 per Lord Hope];  and (3) that the fact that the procedural requirement has a European source does not require a different approach [§§ 133, 138—140, 151; at § 156 per Lord Hope]. In the light of Gemeinde Altrip, Champion qualifies Walton by adding two further propositions: (4) that, where the source is EU law, the burden lies on parties supporting procedurally defective decisions to satisfy the court that there is no prejudice, in particular that the outcome would not conceivably have been different; and (5) that, depending on the seriousness of the procedural defect and whether in particular it deprives the public of an EU law guarantee of participation, it may not be open to withhold relief even where the outcome would have been the same [Gemeinde Altrip and Ors v Land Rheinland-Pfalz (Vertreter des Bundesinteresses beim Bundesverwaltungsgericht intervening) (C-72/12) ECLI:EU:C:2013:422, [2014] PTSR 311 at §§ AG70—AG71, AG73, AG76—AG77, AG97, AG106, AG107 and CJEU ECLI:EU:C:2013:712, [2014] PTSR 311 at  §§ 37, 47, 48, 51—54, 57; R (on the application of Champion) v North Norfolk DC [2015] 1 WLR 3710 at §§ 54—59 per Lord Carnwath with whom the other justices of the Supreme Court agreed].  Since procedural guarantees are a large part of the substance of the European measures, I would understand Gemeinde Altrip to teach that procedural irregularities in environmental decision-making can readily aspire to be quasi-substantive defects.  Of course, nothing in Champion addresses the questions raised by Lord Reed in Walton about the Scotland Act 1998 dimension.

  [126]    The EIA Directive 2011/92/EU art. 11 requires member states to ensure the availability of, to put it shortly, judicial processes to challenge “the substantive or procedural legality” of environmental decisions.  Gemeinde Altrip is about a challenge to alleged procedural irregularities in an EIA process for flood containment works that threatened two properties, a market garden and a campsite, on the left bank of the Rhine. The German court made a reference to Luxembourg because the domestic Environmental Appeals Act, Umwelt–Rechtsbehelfsgesetz [UmwRG], § 4(1) bears or bore to authorise annulment only for complete failure to carry out an EIA.  The case also raised a question about the applicability to environmental cases of certain general rules for judicial review of administrative decisions.  Gemeinde Altrip has now been affirmed and amplified by the infringement case European Commission v Germany (C‑137/14) ECLI:EU:C:2015:683. The latter judgment declares UmwRG § 4(1) to be incompatible with the EIA Directive 2011/92/EU art. 11.  The judgment also holds that the Law on Administrative Procedure, Verwaltungsverfahrensgesetz [VwVfG], § 46 (setting aside for procedural irregularity not amounting to “a particularly serious defect”), infringes EIA Directive 2011/92/EU art. 11 as regards the burden of proof.

  [127]    On the latter point the Court of Justice stated:   

   

   “55      The Court has previously held… that it was not the intention of the EU legislature to make the possibility of invoking a procedural defect conditional upon that defect’s having an effect on the purport of the contested final decision. Moreover, given that one of the objectives of [the EIA] Directive 2011/92 is, in particular, to put in place procedural guarantees to ensure the public is better informed of, and more able to participate in, environmental impact assessments relating to public and private projects likely to have a significant effect on the environment, it is particularly important to ascertain whether the procedural rules governing that area have been complied with. Therefore, as a matter of principle, in accordance with the aim of giving the public concerned wide access to justice, that public must be able to invoke any procedural defect in support of an action challenging the legality of decisions covered by that directive (see, to that effect, judgment in Gemeinde Altrip and Others, C‑72/12, EU:C:2013:712, paragraphs 47 and 48).

   

  […]

   

  57      To refuse annulment of an administrative decision adopted in breach of a procedural rule on the sole ground that the applicant is unable to establish the effect that defect has on the merits of that decision renders that provision of EU law totally ineffective.

   

  […]

   

  60        It follows therefrom that the impairment of a right, for the purposes of Article 11 of [the EIA] Directive 2011/92 cannot be excluded unless the court of law or body covered by that article is in a position to take the view, without in any way making the burden of proof of causality fall on the applicant, but by relying, where appropriate, on the evidence provided by the developer or the competent authorities and, more generally, on the case-file documents submitted to that court or body, that the contested decision would not have been different without the procedural defect invoked by that applicant (see, to that effect, judgment in Gemeinde Altrip and Others, C‑72/12, EU:C:2013:712, paragraph 53).

   

  61        Although it is true that those considerations relate to just one of the conditions for admissibility of legal proceedings, they remain relevant to any condition laid down by the national legislature which has the effect of restricting the review of the courts of the substance of the case.

   

  62        It follows from the foregoing considerations that the requirement laid down in Paragraph 46 of the VwVfG, in so far as that provision places the burden of proof on the applicant ‘member of the public concerned’ that there is a causal link between the procedural defect which he alleges and the outcome of the administrative decision, constitutes an infringement of Article 11 of Directive 2011/92…”

   

   

  In terms of the Administrative Court Rules, Verwaltungsgerichtsordnung [VwGO], § 113 relating to the scope of review on the merits, “impairment of right”, otherwise prejudice, is a condition for annulling procedurally defective administrative decisions.  The Court of Justice held that, aside from the burden of proof issue, this is not incompatible with article 11 of the EIA Directive 2011/92.  In Jedwell the Court of Appeal of England & Wales expressed the opinion that Commission v Germany (C‑137/14) does no more than apply Gemeinde Altrip [R (on the application of Jedwell) v Denbighshire CC [2016] Env LR 17 at § 45 per Lewison LJ with whom the other members of the court agreed].

  [128]    Drawing some threads together, “prejudice” can enter the decision-making at three levels. First, it is necessarily a threshold issue in systems where standing depends on “impairment of right” as opposed to “interest”; and it may of course be relevant to “interest” [EIA Directive 2011/92/EU art. 11]. Secondly, prejudice, that is “substantial prejudice” to the claimant, can also operate at the level of merits decisions, for example in the United Kingdom jurisdictions, as a condition of setting aside for procedural irregularity: in the case of serious flaws, amounting to a system breakdown or denial of EU law guarantees, prejudice appears to be presumed for legal policy reasons.  I take “substantial prejudice” to mean prejudice which is not negligible.  Thirdly, where there is scope for exercising the Court’s residual discretion to withhold the remedy, the balance of prejudice, including prejudice to other interested parties and to public interests, is relevant.  Again, depending on the context, prejudice may be presumed, or assumed subject to contrary proof.  As with unfettered discretionary decision-making in general, all relevant circumstances have to be considered including, it may be, the conduct of parties, the utility of setting aside the decision, the proportionality of the remedy and the availability of alternative remedies.  

   

  Ultra vires, procedural irregularity, prejudice and discretion in this case

  [129]    In my view the ministers’ Inch Cape section 36 decision is seriously flawed.  The flaw is not simply a procedural irregularity: it is substantive; and the decision is ultra vires.  If the decision is not substantively flawed and ultra vires, the procedural irregularity is of such seriousness that the decision has to be reduced in any event.  If the irregularity is not of such seriousness, I say that the decision has to be reduced because substantial prejudice cannot be ruled out, the burden being on the ministers and the interested party, Inch Cape, in this connection.  The foregoing is subject to discretionary considerations that might argue against quashing the section 36 decision by decree of reduction: but the present case is not one in which the Court, having regard to the nature of the flaw and weighing the balance of prejudice and other relevant circumstances, can properly exercise its discretion to refuse the remedy sought by the RSPB. That is my assessment.  The RSPB’s pick-and-mix, “and/or” pleas-in-law support any and all of the possible grounds for reduction.

  [130]    The section 36 decision is ultra vires on the view that the ministers have not merely omitted to consult on information which they are otherwise entitled to take into account: they have made the decision on the basis of new information which, because unconsulted-on, as I read the Electricity Works EIA Regulations reg. 4(2), the ministers are disempowered from considering.  This is not a case where it is possible to contend that there has been substantial compliance notwithstanding a procedural lapse.  The new information wrongly taken into consideration is apparently determinative.  No reason has been advanced for thinking that there would still have been a section 36 consent if the new, unconsulted-on information not been fed into the Electricity Works EIA Regulations process.

  [131]    The RSPB submits that the ministers’ section 36 decision-making also fails to comply with the EIA Directive 2011/92/EU. I agree, first, that there is non-compliance with the EIA Directive 2011/92/EU art. 8.  This is the conclusion to be drawn from a purposive interpretation in light of the legislative context including the Aarhus treaty obligations from which much of the wording for the EIA Directive 2011/92/EU is drawn [Aarhus Convention, arts. 6—8; The Aarhus Convention: an Implementation Guide (United Nations, New York, 2000), 104—110].

  [132]    The Electricity Works EIA Regulations reg. 4(2), gives effect to the EIA Directive 2011/92/EU art. 8.  Article 8 provides that: “The results of consultations and the information gathered pursuant to Articles 5, 6 and 7 shall be taken into consideration in the development consent procedure.” Article 7 is about projects that affect other EEA states, so the relevant articles in this case are 5 and 6; and “the information gathered” is the EU Directive source for “the environmental information” which must be “taken into consideration” for the purpose of consenting developments in terms of the Electricity Works EIA Regulations reg. 4(2).  The corollary is that determinative information which has not been subject to the procedures for information gathering and consultation in terms of the EIA Directive 2011/92/EU arts. 5 and 6 must not be “taken into consideration”.  This injunction is necessarily implied: otherwise there is no guarantee of the effectiveness of the measures for participation [EIA Directive 2011/92/EU recitals 16, 18—20].

  [133]    Secondly, the information gathered pursuant to article 6 includes, in terms of article 6(3)(b) “the main reports and advice issued to the competent authority or authorities...” at the time of the initial public consultation round and (c) “information... which is relevant for the decision... and which only becomes available after” the initial public consultation round.  The quoted wording, “main reports and advice”, is lifted from the Aarhus Convention, article 6.  The terminology is explained in The Aarhus Convention: an Implementation Guide (United Nations, New York, 2000).  The expression “main reports or advice” covers a broad range of inputs to the decision-making [Aarhus Implementation Guide, 107]:

  “whether coming from consultants, the proponent, co-authorities, expert bodies, or members of the public. Such reports and advice may include, inter alia, studies of alternatives, cost/benefit analyses, technical or scientific reports, and social or health impact assessments.”

   

   

  According to the guidance, the obligation to make relevant information available in terms of the Aarhus Convention, article 6(2), is a continuing obligation, and [107]:

  “… the issuance of new reports and advice to the public authority should trigger an additional obligation to notify the public concerned. The obligation to update information is also found in the lead to this subparagraph, which requires the public authorities to give all relevant information to the public concerned ‘as soon as it becomes available’.”

   

   

  The equivalent wording in the EIA Directive 2011/92/EU article 6(2) is “and, at the latest, as soon as information can reasonably be provided”.  The verbs “to give” and “to provide” imply positive action.  Accordingly I take the view that the ministers’ section 36 decision-making also fails to comply with the EIA Directive 2011/92/EU art. 6.

  [134]    Non-compliance with the EIA Directive 2011/92/EU is, separately, ultra vires in terms of the Scotland Act 1998 section 57(2), which disables any member of the Scottish Government from doing any act which is incompatible with EU law.  With hindsight it can be seen that the ministers’ failure to meet freedom of environmental information requests (above) has aggravated their non-compliance.  The ministers cannot plead ignorance or justifiable incomprehension since the RSPB’s concerns were put in the clearest terms [eg 6/17, letter from Stuart Housden, Director RSPB Scotland, to Linda Rosborough, Director, Marine Scotland, 14 August 2014].

  [135]    The RSPB’s “interest” for “standing” purposes is not questioned. In terms of the EIA Directive 2011/92/EU arts. 1(2)(e) and 11(3) non-governmental organisations like the RSPB are deemed to have rights capable of being impaired for the purpose of the provisions on “standing”: by logical extension this must apply to the review on the merits [Commission v Germany (C‑137/14) at §§ 28, 32].  I accept the RSPB submission that there is no requirement to demonstrate substantial prejudice to the RSPB’s interests in the traditional sense.  There are of course no private interests at stake for the RSPB. But the RSPB is no mere Topfgucker.  The RSPB is vindicating a public interest in the natural environment and in the quality of environmental decision-making [Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen eV v Bezirksregierung Arnsberg (C-115/09), ECLI:EU:C:2011:289; Walton v The Scottish Ministers 2013 SC (UKSC) 67 at §§ 152—153 per Lord Hope; Sustainable Shetland v Scottish Ministers 2015 SC (UKSC) 51 at § 31 per Lord Carnwath with whom the other members of the Supreme Court agreed; Commission v Germany (C‑137/14) ECLI:EU:C:2015:683 at §§ 33, 90--92].

  [136]    The RSPB correctly maintains that it is for the opposing parties to demonstrate that the decision would have been no different or would now be no different if re-made and, or alternatively, that the RSPB has suffered no prejudice (in relation to the RSPB’s public interest concerns), questions that are bound together.  I sense that there is a distinction between “would have been”, and “would be” no different.  Parties expressed the matter in both ways.  Possibly it is a question of emphasis, the test expressed in the hypothetical past being more about prejudice or the lack of it, and in the hypothetical future being more about proportionality and disproportionality [Berkeley v Secretary of State for the Environment (No 1) [2001] 2 AC 603 at 607H—608C per Lord Bingham of Cornhill, at 613G—H, 616A—D per Lord Hoffmann; R (on the application of Edwards) v Environment Agency (No 2) [2008] 1 WLR 1587 at §§ 64—65 per Lord Hoffmann; Walton v Scottish Ministers 2013 SC (UKSC) 67 at §§ 124—133 per Lord Carnwath; R (on the application of Champion) v North Norfolk DC [2015] 1 WLR 3710 at §§ 57--58 per Lord Carnwath].

  [137]    The problem identified above is that the “appropriate assessment” is incorporated into the environmental impact assessment as “environmental information” without publication, notification and consultation.  The practical issue raised by the affidavit evidence and submissions for the ministers and the interested parties is whether the “appropriate assessment” would be the same if the unconsulted-on inputs were now to be consulted on in a re-made decision.  If the “appropriate assessment” would be the same, then a re-made section 36 decision would presumably not be different;  and to be fair, the ministers do submit, albeit in connection with Ground B.1, that the “appropriate assessment” would have been no different if the RSPB’s concerns had been taken into account.  To be clear, my primary conclusion is that the decision is so badly flawed that it can properly be set aside without further consideration: in case I am wrong about that and for completeness I have to address the question whether the “appropriate assessment” might, not inconceivably, be different if re-made.  The matter is more conveniently dealt with in connection with Ground B.1 below.

  [138]    Separately I also take the view that the ministers’ Inch Cape section 36 consent decision is flawed because the “appropriate assessment” is flawed, as will be explained in relation to ground B.1 below, and for the reason that it omits to address the question of effects on the Forth & Tay marine dSPA, as will be explained in relation to Ground B.2 below.

   

  Ground A: Marine Works EIA Regulations reg. 22 consent decision

  [139]    My view, which is explained in what follows, is that the Marine Works EIA Regulations reg. 22 consent decision is also flawed and has to be quashed.  There is advantage in comparing this consent with the Electricity Act 1989 section 36 consent which has been the subject of discussion so far.

  [140]    The section 36 consent in terms of the Electricity Act 1989 necessarily involves some reference to the environmental impact assessment in terms of the Electricity Works EIA Regulations and also to the “appropriate assessment” in terms of the Habitats Regulations. This is because the ministers cannot grant the section 36 consent unless they have “taken into consideration the environmental information” in terms of the Electricity Works EIA Regulations and “state in their decision in relation to that consent that they have done so” [Electricity Works EIA Regulations reg. 4(2)(b)]; and because the ministers can agree to the project under section 36 “only after having ascertained that it will not adversely affect the integrity of” the SPAs [Conservation (Natural Habitats etc) Regulations 1994 (as amended) reg. 48; Offshore Marine Conservation (Natural Habitats etc) Regulations 2007 reg. 25].

  [141]    As previously stated the environmental impact assessment in terms of Marine Works EIA Regulations the Electricity Works EIA Regulations is different. Something more than “taking into consideration” is required.  In terms of the Marine Works EIA Regulations the ministers as “the regulator” may not grant “regulatory approval“—in this case the two marine licences in terms of the Marine (Scotland) Act 2010 ss. 21 and 29—unless the ministers as “the appropriate authority” have first granted “EIA consent” in terms of the Marine Works EIA Regulations [Marine Works EIA Regulations regs. 4, 22].  Likewise, the ministers can grant the marine licences for the works “only after having ascertained that [the works] will not adversely affect the integrity of” the SPAs [Conservation (Natural Habitats etc) Regulations 1994 (as amended) reg. 48; Offshore Marine Conservation (Natural Habitats etc) Regulations 2007 reg. 25].  As it is put in the oral submissions for the ministers, the “appropriate assessment” is a “jurisdictional prerequisite” for the Electricity Act 1989 section 36 consent and for the Marine (Scotland) Act 2010 section 29 licences.  This understanding is reflected in the heading of the regional “appropriate assessment” [6/4]:

  “APPLICATION FOR CONSENT UNDER SECTION 36 OF THE ELECTRICITY ACT 1989 AND APPLICATIONS FOR MARINE LICENCES UNDER THE MARINE (SCOTLAND) ACT 2010 FOR THE CONSTRUCTION AND OPERATION OF THE INCH CAPE OFFSHORE WINDFARM.”

   

   

  The important point is this: the “appropriate assessment” is not a prerequisite of the Marine Works EIA Regulations reg. 22 consent decision and does not require to be referred to in that decision.  In the absence of contrary explanation, I take it that the references to the “appropriate assessment” in the regulation 22 consent decision are intended to be references to material taken into account in the making of that decision.

  [142]    The Marine Works EIA Regulations contemplate, theoretically at least, a division of functions between “the regulator” and “the appropriate authority”.  The regulator is the entity which has responsibility for considering applications for regulatory approval meaning, in this case, for the granting of marine licences in terms of the Marine (Scotland) Act 2010, part 4, section 29. The “appropriate authority” is the entity which has responsibility for making the environmental impact assessment and granting or refusing the Marine Works EIA Regulations reg. 22 consent.  In Scotland (including the Scottish inshore region) and in the Scottish offshore region the ministers are both the regulator and the appropriate authority [Marine Works EIA Regulations reg. 2, “Interpretation”].  The ministers have confused, possibly conflated, these roles.  Section 6 of the Marine Works EIA reg. 22 consent decision is headed “Regulatory Evaluation”.  It appears from what is written (quoted below) that Marine Scotland [MS] has made the environmental impact assessment and granted the Marine Works EIA Regulations reg. 22 consent decision “as the regulator” rather than as, or as representing “the appropriate authority”.

  [143]    Regulation 22(a) of the Electricity Works EIA Regulations requires the ministers to reach their EIA consent decision on the basis of: “(i) the application; (ii) the environmental statement; (iii) any further information provided by the applicant pursuant to a notification under regulation 14(1); (iv) the outcome of the process set out in Schedule 5 in relation to any representations [from members of the public] received pursuant to the statement referred to in regulation 16(2)(g); (v) any representations in response to consultation made by the consultation bodies pursuant to the letter referred to in regulation 17(1)(a)(iv).”  In this case one and the same “environmental statement” or “ES” supports the environmental impact assessments in relation to both the Electricity Act 1989 application and the Marine (Scotland) Act 2010 applications; and there was combined publication by press advertisement and by making material available for inspection in local planning departments and public libraries.

  [144]    “Further information” is information which the appropriate authority reasonably considers that the authority requires “properly to consider the likely environmental effects of the project” and which “the applicant is (or should be) able to provide”.  Like the “environmental statement”, “further information” has to be publicised and consulted on. Schedule 5 sets out a process for handling representations from members of the public. “Consultation bodies” is a defined term which includes, in addition to statutory consultees such as local planning authorities and the SNCBs, “such other bodies as the appropriate authority considers likely to have an interest in the regulated activity (whether by virtue of their having specific environmental responsibilities under an enactment or otherwise)” [Marine Works EIA Regulations regs. 2, 12, 16 and 22].  The ministers seem to have treated the RSPB as a “consultation body”, otherwise “non-statutory consultee”, for the purpose of the Marine Works EIA Regulations assessment.

  [145]    The Marine Works EIA Regulations assessment states, under the heading “Consultees” [6/2, Marine Works EIA Regulations reg. 22 consent decision, § 4.2]:

   

  “... Marine Scotland conducted a consultation with advisory and regulatory bodies for comment on the validity of the ES [environmental statement] document and the conclusions of environmental impact drawn. The consultation on the ES opened on 24th July 2013 and closed on the 5th September 2013 with Local Authorities permitted additional time in accordance with The Electricity (Applications for Consent) Regulations 1990 (as amended). Extensions to provide comments were permitted to consultees if required.”

   

   

  Fifty consultees are listed. The following appear to be “statutory” consultees: the seaboard local planning authorities ex adverso, namely Angus Council, Dundee City Council, East Lothian Council, Fife Council, Scottish Borders Council; the statutory nature conservation bodies [SNCBs], namely Scottish Natural Heritage [SNH] and the Joint Nature Conservation Committee [JNCC]; and the Scottish Environment Protection Agency [SEPA].  The rest come under the heading “Non-Statutory Consultees” [6/2, § 4.2.1]. Marine Scotland Science [MSS] is listed as one of the non-statutory consultees. In fact MSS is not a “body” in the sense of being a legal entity with an independent existence which might come within the regulation 2 definition of a “consultation body”: it is simply the scientific division of MS, a “directorate” of the Scottish Government.  The existence of MS has some statutory recognition but MS is not constituted by statute [eg the Shetland Islands Regulated Fishery (Scotland) Order 2009, reg. 2; the Regulation of Investigatory Powers (Prescription of Offices, Ranks and Positions) (Scotland) Amendment Order 2009, reg. 2].  As I understand it, the Regulation 22 EIA application was analysed and recommended for consent by a “reviewer” employed at the MSS laboratory, Victoria Road, Aberdeen, and the recommendation was approved and consent was granted on the ministers’ behalf by an individual in the MS licensing operations team [MS-LOT] [6/2, §§ 1 and 6.2].

  [146]    The Inch Cape Marine Works EIA Regulations reg. 22 consent decision states [§ 4.2.2, “Marine Scotland Science (“MSS”)”, “The Royal Society for the Protection of Birds Scotland (“RSPB Scotland”)”; § 6.1]:

   

  “Marine Scotland Science (“MSS”) did not object to the Development, however requested [sic] further clarification of assessments carried out in the ES for certain receptors [SPAs and SACs] in order to allow a sufficient assessment of the potential impacts that may arise from the Development on each receptor. Discussion between ICOL [Inch Cape Offshore Limited] and MSS allowed advice to be given as detailed:

   

  Ornithology

  MSS have provided significant input into the AA. MSS have worked with SNH, the JNCC, the Company [Inch Cape Offshore Limited], ICOL [Inch Cape Offshore Limited], SAWEL [Seagreen Alpha Wind Energy Limited], SBWEL [Seagreen Bravo Wind Energy Limited] to allow a robust cumulative assessment for the Forth and Tay region. Details are provided in the appropriate assessment...”

   

  [...]

   

  “Information which has come forward to inform the AA including modelling work commissioned by Marine Scotland and information provided by the Company does not require consultation under the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2000 (as amended) or the MWR [Marine Works EIA Regulations]. Under the Habitats Regulations “a person applying for consent shall provide such information as the competent authority may reasonably require for the purposes of the assessment”; there is no statutory consultation period and the public do not need to be consulted. This information has, however, been shared with the RSPB Scotland. The AA completed for the Development has shown that effects from the development alone and in combination with the other Forth and Tay developments are within acceptable limits and has concluded that the integrity of the SPAs of concern would not be adversely affected. MS-LOT consider that the assessment process has used the best available evidence. The assessment has also been highly precautionary as detailed in the Appropriate Assessment. MS-LOT do not consider that further assessment would add value to the decision making process.

   

  [...]

   

  “In considering the application, in particular the ES and the relevant provisions of the Marine (Scotland) Act 2010, a full and detailed assessment has been made of the potential direct and indirect effects of the proposal on human beings, fauna and flora, soils, water, air climate, the landscape, material assets, the cultural heritage and the interaction between any two or more of these factors.

   

  Marine Scotland, as the regulator, consider that, having taken account of the information provided by the Company, the responses of the consultative bodies and members of the public, there are no outstanding concerns with regards to the effects on the environment which would require a marine licence to be withheld.”

   

   

  Going by the glossary appended to the Inch Cape Electricity Act 1989 section 36 consent decision, the first paragraph quoted above refers to “Inch Cape” twice, once as “the Company” and once as “ICOL”.  This looks like a copy-and-paste error from the Neart na Gaoithe Marine Works EIA Regulations reg. 22 consent decision where the same sentence occurs and makes sense.

  [147]    Readers may recollect that the Inch Cape Electricity Act 1989 section 36 decision states, referring to both the Electricity Works EIA Regulations [“the 2000 Regulations”] and the Marine Works EIA Regulations [“the 2007 Regulations”]:

  “The Scottish Ministers are satisfied that an ES [Environmental Statement] has been produced in accordance with the 2000 Regulations and the 2007 Regulations and the applicable procedures regarding publicity and consultation laid down in the 2000 and 2007 Regulations have been followed.

   

  “The Scottish Ministers have taken into consideration the environmental information, including the ES [environmental statement], the AA [appropriate assessment] and the representations received from the consultative bodies, including SNH, the JNCC, SEPA, and from Angus Council, Dundee City Council, East Lothian Council, Fife Council and Scottish Borders Council...

   

  “... The Scottish Ministers have also, as per regulation 4(2) of the 2000 Regulations, and regulation 22 of the 2007 Regulations taken into account all of the environmental information and are satisfied the Company has complied with their obligations under regulation 4(1) of those Regulations and regulation 12 of the 2007 Regulations.”

   

   

  In terms of regulation 22 of the Marine Works EIA Regulations the ministers are obliged to make their EIA consent decision on the basis of the material specified (above) and also having regard to the relevant legislation and taking into account “the direct and indirect effects of the project on human beings, fauna and flora”, etc. “Fauna” includes birds.

  [148]    Although the applicant’s environmental statement is bound to contain an account of “the main effects that the project and the regulated activity are likely to have on the environment”, it is clear that the environmental impact assessment which is the basis of the Marine Works EIA Regulations reg. 22 consent decision is an assessment which has to be made by the ministers as the “appropriate authority” [Marine Works EIA Regulations reg. 2 “EIA consent”, “EIA consent decision” reg. 13(3)(a), reg. 14(1)(a), sched. 3, para. 4, sched. 5, Explanatory Note].  The Marine Works EIA Regulations reg. 22 consent decision is a free-standing environmental impact assessment and does not require to make any reference to the “appropriate assessment” in a situation where the two assessments are separate exercises.  This Marine Works EIA Regulations reg. 22 consent decision contains extensive references to the “appropriate assessment”.  Conversely, and apart from the references to the “appropriate assessment”, there is no indication that the Marine Works EIA Regulations reg. 22 consent decision addresses the impacts on birds and SPAs.  Under the heading “Environmental sensitivities” on page 2 [unnumbered] of the decision it is recorded that: “SNH and the JNCC advised that the Development would impact on the qualifying interests of various Special Protection Areas (“SPAs”)... ”

  [149]    As indicated above the issue of the Marine Works EIA Regulations reg. 22 consent decision was scarcely debated: but the inference is unavoidable, from the terms of the decision itself and from the quoted references to the decision in the Electricity Act 1989 section 36 consent decision, that the Marine Works EIA Regulations reg. 22 consent decision is based on the unconsulted-on information constituting, or constituting a large part of the “appropriate assessment” and is based therefore on information with does not fall within the regulation 22 definition of materials which the ministers are bound to take into account when making the Marine Works EIA Regulations reg. 22 consent decision.

  [150]    It might be argued that the MSS “advice” comes within the regulation 22(a)(v) definition: “representations in response to consultation made by the consultation bodies pursuant to the letter referred to in regulation 17(1)(a)(iv).”  I would not accept this argument because I do not agree that MSS is a “consultation body” within the meaning of the regulations.  There is also an issue around the statement that MSS “requested further clarification of assessments carried out in the ES for certain receptors in order to allow a sufficient assessment of the potential impacts on each receptor”, “receptors” being sites and their species populations liable to be impacted.  Without explanation, there must be concern that the request ought to have been made as a requirement for “further information” in terms of regulation 14(1), which “further information”, if provided, should then have been consulted on.  It would also be a concern if MSS were to have been dressed up as a “consultation body” in order to legitimise its “inputs” into the EIA process or processes. (Regulation 17(1)(a)(iv) requires the ministers as “the appropriate authority” to supply a letter to consultation bodies giving details of how to make consultation responses and specifying the statutory response deadline or agreed extended response deadline: it would be interesting to see a copy of the letter to MSS.)

  [151]    It is not immediately obvious from the terms of the Marine Works EIA Regulations reg. 22 consent decision how the works for which licences are required, which include seabed works, might impact on the SPAs and their species populations.  It is possible to envisage that maritime activity and engineering operations during the construction phase will disturb sea birds in their foraging, moulting and staging areas.  This is something that might be relevant to an assessment of effects on the Forth & Tay marine dSPA (see below): but however big or small the impacts and however long their duration, I am satisfied that the Marine Works EIA Regulations reg. 22 consent decision, like the Electricity Act 1989 section 36 consent decision, is irregular, and broadly for the same reasons.

  [152]    Separately I also take the view that regulation 22 consent decision is flawed for the reason that it omits to address the question of effects on the Forth & Tay marine dSPA, as will be explained in relation to Ground B.2 below.  The existing decision has to be re-made and will be set aside by decree of reduction to enable that to be done.

   

  Ground B.1: the “appropriate assessment”

  [153]    Ground B.1 is directed against the “appropriate assessment”.  The RSPB’s approach is to attack the “appropriate assessment” as another way of challenging the Electricity Act 1989 section 36 consent decision (and also, I suppose, the Marine Works EIA Regulations reg. 22 consent decision).  This is on the view—which is a correct view—that a sound “appropriate assessment” is a pre-condition for a lawful Electricity Act 1989 section 36 consent decision.  However, the RSPB does not seek to have the “appropriate assessment” itself set aside. 

  [154]    Before going further I have to say that the task for the ministers is not an enviable one.  As I understand it, there is broad support for the ministers’ policy on sustainable energy generation. The environmental determinations that have to be made are very difficult ones.  If the ministers were to yield to the representations of the RSPB, or indeed of the SNCBs, the ministers might find themselves faced with even more complex decisions about having to pick and choose as between or among applications.  It can be envisaged that any negative decision or decisions would be challenged. That having been said, unnecessary difficulties are created.  Two of the three Aarhus “pillars” are about “access”, namely “access to environmental information” and “access to justice in environmental matters”.  The Aarhus ideals cannot be realised unless environmental determinations are “accessible”.  The determinations on the Forth and Tay applications, if I may respectfully say so, are not accessible in a colloquial sense, certainly not readily accessible.  As a very minimum consistent formatting, paragraph and page numbering would help.    Determinations of this sort should not be addressed just to the applicants, interested third parties and the experts: they should be written in a way that is accessible to informed members of the public and having in view that the text may have to be described, analysed and explained by lay judges.  An assessment in terms of the first sentence of article 6(3) of the Habitats Directive 92/43/EEC is arguably “inappropriate” if its inaccessibility forecloses the possibility of consulting public opinion at the stage of final evaluation in terms of the second sentence of article 6(3).  The discussion about sufficiency of reasons, in my respectful opinion, has moved beyond the criterion laid down only twelve years ago [South Buckinghamshire District Council & Anor v Porter (No. 2) [2004] 1 WLR 1953 at § 36 per Lord Brown of Eaton-under-Heywood].  This observation is not a reason for my decision.

  [155]    I know that the Aarhus Convention does not expressly underpin the Habitats Directive 92/43/EEC in the same way as it underpins the EIA Directive 2011/92/EU.  The only reference in the guidance is in the context of “public consultation”: “Public consultation should be considered in the light of the provisions of [the EIA] Directive 85/337/EEC and the Aarhus Convention” [Managing Natura 2000 Sites: The provisions of Article 6 of the ‘Habitats’ Directive 92/43/EEC, § 4.6.2, “When is it appropriate to obtain the opinion of the general public?”].  However, there is a general access to justice issue; and in this particular case there is an Aarhus access to justice issue by virtue of the fact that the “appropriate assessment” is part of the EIA assessments.  

  [156]    Ground B.1 is to the effect that the Forth and Tay regional “appropriate assessment” is flawed in that it takes into account immaterial considerations, leaves out of account material considerations, applies the wrong test and reaches a perverse conclusion. The submissions are directed at most stages of the “appropriate assessment”.  Four stages, broadly speaking, of data presentation and analysis support the conclusion of the ornithological aspect of the “appropriate assessment”.  The four stages are (1) modelling of wind farm impacts on focal species—collision risks, displacement and barrier effects, (2) population viability analysis, (3) setting of thresholds of “acceptable change” derived from population viability analysis outputs and (4) comparison of population outcomes not subject to wind farm impacts with population outcomes subject to wind farm impacts to ascertain whether the with-impacts outcomes fall within the bounds of “acceptable change” for the species populations of the SPAs.  Stages (1) and (3) are highly contested by the RSPB at a technical level. Twelve separate criticisms are made.  Stage (4) is also contested on technical grounds. I shall not deal with the technical points separately.  They can be gathered under a small number of heads for legal analysis.  There are three fundamental questions, namely whether there can be, legally-speaking, such a thing as “acceptable change” caused by significant development impacts; if there can be, whether the ministers’ conclusions about the absence of adverse effects satisfy the legal test for “appropriate assessment”; and whether overall the ministers have a sound basis for project authorisation in terms of the Habitats Directive 92/43/EEC art. 6(3) and the domestic Habitats Regulations. These are the questions which this section addresses, starting with the definition of the legal tests.  The submissions of the parties sufficiently appear in what follows.

   

  Ground B1: legal tests for “appropriate assessment” and project authorisation

  [157]    There are issues about the interpretation of the legislation providing for and governing “appropriate assessment” and project authorisation.  The source legislation is the Habitats Directive 92/43/EEC.

   

  “Appropriate assessment” and project authorisation: legal criteria

  [158]    The Habitats Directive 92/43/EEC art. 6(3) provides:

   

  “Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.”

   

  The Conservation (Natural Habitats etc) Regulations 1994 (as amended) reg. 48(5) transposes article 6(3) to the effect that the competent authority, in this case the ministers, “shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the European site”.  Equivalent provision is made for the offshore area beyond the limits of the territorial sea by the Offshore Marine Conservation (Natural Habitats etc) Regulations 2007 reg. 25.  The meaning of “only after having ascertained that it will not adversely affect the integrity of the site” has been explained judicially. Waddenzee, Sweetman and Smyth are cited to me by all parties as the leading cases [Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en Visserij (Waddenzee) (C-127/02) [2004] ECR I-07405, [2005] 2 CMLR 31; Sweetman v An Bord Pleanála (C-258/11) ECLI:EU:C:2013:220, [2014] PTSR 1092; Smyth v Secretary of State for Communities and Local Government [2016] Env LR 7].

  [159]    Waddenzee is about the effects of shell-fish trawling, which had been carried out for a long time before the Waddenzee SPA was classified for over-wintering eider duck and oyster-catchers [Waddenzee at §§ AG9—AG10].  The annual cockle-fishing licensing rounds took place without any “appropriate assessment”.  The issue was whether there should be an “appropriate assessment”.  In addressing the issue Advocate General Kokott took the view that the “appropriate assessment” referred to in the first sentence of article 6(3) and the development authorisation by the authorities referred to in the second sentence are separate, sequential exercises.  She had a clear example in the Wörschach golf course case.  In that case the “appropriate assessment” consisted of an independent expert report by Dr Gepp of the Graz Institute for the Protection of Nature and Ecology on the effects of extending the Wörschach golf course by adding two new holes in a site classified for corncrake.  When the application came to be decided, the Styrian provincial authorities effectively overrode the findings of the assessment without having “cogent factual arguments” for doing so, and without resorting to a public interest justification in terms of article 6(4) [Commission of the European Communities v Austria (Wörschach golf course) (C-209/02), [2004] ECR I-01211; Waddenzee at §§ AG99—AG109].

  [160]    Earlier I called the complete habitats regulations appraisal in terms of the Habitats Directive 92/43/EEC arts. 6(3) and 6(4) and the domestic regulations a five-stage process.  The important stages for present purposes are the screening stage, which determines whether there is a “likelihood” of significant effects such as to require an “appropriate assessment” to be undertaken, the “appropriate assessment” stage, and the development authorisation stage, all in terms of article 6(3).  In Waddenzee the precautionary principle is said to be integral to the screening decision stage, and to the development authorisation stage, both stages at which evaluative judgements have to be made: precaution is not said to play a part in the intermediate, “appropriate assessment”, stage.  The analysis offered in Waddenzee is, if I may respectfully say so, correct [Waddenzee at §§ AG88, AG91, AG95--AG111 and at §§ 10, 44, 58; Sweetman at § AG51 and at § 41].

  [161]    In the present case there is no clear demarcation between the “appropriate assessment” and the authorisation stages; or there is confusion of the roles of MSS, acting as an assessor, and of MS-LOT, acting as a decision-maker in place of the ministers, or about the role of MS-LOT, acting as both assessor and decision-maker, on the advice of MSS.  The assessors, for the purpose of the “appropriate assessment” in terms of the first sentence of article 6(3), are stated to be “MS-LOT and MSS on behalf of the Scottish Ministers”; and the overall conclusion of the “appropriate assessment” bears to be a decision by MS-LOT in terms of the second sentence. MS-LOT takes the view that the “precautionary principle requires to be applied… in preparing an AA [appropriate assessment]”.  “Precaution” is referred to at 22 places in the “appropriate assessment” [6/4, 1, 2, 18, 21 (four times), 23 (four times), 24, 28, 29, 32, 34, 38, 40, 69, 71, 82 (twice)].  Arguably—the point is not argued by the RSPB—this approach deprives the “appropriate assessment” of the intended quality of scientific objectivity, usurps the function of the decision-maker on project authorisation and confines the article 6(3) decision-making as a whole to the consideration of data which purports to give categorical, quantitative answers without any surrounding uncertainty.  The jurisprudence envisages that authorisation involves making a decision in light of an assessment which identifies both the scientific certainties and the scientific uncertainties.  As the Netherlands government submitted in Waddenzee [at § AG93; also § AG 107]: “Within the scope of the second sentence of Art.6(3) authorisation must be possible where there is no absolute certainty, but only a high degree of certainty that adverse effects can be ruled out.” This is correct in my view, as it is correct that there might still be scope in such a situation for reasonable doubt.

  [162]    As is submitted by Seagreen, within the margin of discretion which is permitted to decision-makers, the judgement whether to authorise projects in terms of the second sentence of article 6(3) can be described as “political” [Waddenzee at  §§ AG99—AG102].  On this view it is possible to read the reference to obtaining “the opinion of the general public” in the second sentence as a reference to testing opinion by advisory polling or similar means rather than as a reference to affording an opportunity to participate by making representations during the technical evaluation or “appropriate assessment” stage.  This might explain why different language about public involvement is used in the Habitats Directive 92/43/EEC and in the EIA Directive 2011/92/EU.  All this could imply that, in the case of EIA developments and projects which also affect protected sites, the article 6(3) process has to piggy-back on the environmental impacts assessment process with its mandatory provisions for publication, notification and processing representations.  Whatever “obtaining the opinion” means, in the European legislation it clearly does belong in the development authorisation stage and not in the “appropriate assessment” stage.  This reading of article 6(3) is contrary to the shared understanding of the parties in this case, perhaps because the domestic legislation inserts the public opinion provision into the “appropriate assessment” stage [eg Conservation (Natural Habitats etc) Regulations 1994 (as amended) reg. 48(4)].  However, it is important to bear in mind that, whatever else, article 6(3) provides for a staged process.

  [163]    The following propositions are derived from Waddenzee and the other cases: (1) all aspects of the plan or project, including in-combination effects, which may have implications for the protected site must be identified by an “appropriate assessment” using “the best scientific knowledge in the field”; (2) where all scientific means are exhausted, it is permissible to work with probabilities and estimates which are reasoned and identified; (3) unless the “appropriate assessment” is complete with precise and definitive findings and conclusions “capable of removing all reasonable doubt”, development approval cannot be considered; (4) the absence of adverse effects is “ascertained” where “no reasonable scientific doubt remains about adverse effects on the integrity of the site”, applying “the best scientific knowledge in the field”; (5) there is no such thing as absolute certainty and the conclusion is necessarily subjective to that extent; (6) the precautionary principle is an integral part of the article 6(3) test for development authorisation and is to be applied proportionately; (7) decisions can be contested where the competent authority has exceeded “the margin of discretion" confided to it in terms of the second sentence of article 6(3) [Waddenzee at §§ AG95—AG110 and at §§ 58—61; Sweetman at §§ 40--59; Smyth at § 78 per Sales LJ with whom the other members of the Court of Appeal agreed].

  [164]    Excluding future harms by proof “beyond reasonable scientific doubt” is a paradoxical undertaking.  Proving a negative, if this is what is involved, is always challenging.  The law tends not to apply the standard of proof “beyond reasonable doubt” to anything other than past events.  Conventionally, proof “beyond reasonable doubt” is opposed to the higher standard of “scientific certainty”.  “Scientific certainty” conveys the idea of a demonstrable cause and effect relationship which definitely excludes other possibilities. “Beyond reasonable doubt” signifies a conclusion arrived at with a degree of moral conviction in the mind of the decision-maker, rejecting without necessarily eliminating alternative possibilities.

  [165]    A “precautionary approach”, by definition, entails making judgements in the absence of conclusive, quantitative data; and it is to be expected that judgements may reasonably differ as to what constitutes “sufficient precaution”.  The reference to a “margin of discretion” in the Waddenzee test also clearly implies that article 6(3) development authorisations do involve, or may involve discretionary judgements.  On the other hand, whatever the Waddenzee test means in practice, I think it incontestable that too much purely discretionary decision-making would constitute imperfect protection for the environment and would be liable to impede the kind of access to environmental justice that Aarhus principles, when they apply, seem to envisage.  There are obvious dangers where the decision-maker, whether for commercial or other reasons, is predisposed to favour a no-adverse-effects outcome and confuses the roles of assessor and decision-maker [R (on the application of Akester) v Department for the Environment, Food and Rural Affairs [2010] Env LR 33].

  [166]    The high water mark of the subjective approach may be, depending on interpretation, Evans at paragraph 27, cited by the ministers:

   

  “... As to the Waddenzee case, that was concerned with the Habitats Directive. The reference to a reasonable doubt is to a reasonable doubt in the mind of the primary decision-maker. There is no support in that case for the view that, where somebody else has taken a different view to the primary decision-maker, it is not possible to demonstrate that there is no reasonable doubt. It is not suggested in this case that the Secretary of State or his officer had any such doubt.”

   

  The triple negative is challenging: but in its context, the passage could be taken to mean that the claimant cannot succeed without demonstrating reasonable doubt in the mind of the decision-maker, a very high hurdle which practically bars the door against judicial oversight.  The dictum is however obiter. Evans was an application for judicial review of a screening direction by the Secretary of State in terms of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 reg. 6.  It was not about an article 6(3) process [R (on the application of Evans) v Secretary of State for Communities and Local Government [2013] EWCA Civ 114 at §§ 25 and 27 per Beatson LJ with whom the other members of the Court of Appeal agreed: cf. Abbotskerswell Parish Council v Teignbridge DC [2015] Env LR 20].

  [167]    There is another perspective, which looks at the question as one of the “intensity” of review or the standard of scrutiny.  This is how the RSPB focuses the issue.  I respectfully agree with Sales LJ in Smyth that where evaluative judgements are to be made, a Wednesbury standard of review applies [Smyth at § 78 per Sales LJ; cf. Aarhus Compliance Committee ACCC/C/2008/33 United Kingdom (Port of Tyne) §§ 126--137]: but this leaves open the question of the extent to which evaluative judgements do have to be made at the “appropriate assessment” stage and at the development authorisation stage respectively of the article 6(3) process—it is perhaps not crystal clear that Sales LJ in Smyth says more than that “evaluative judgements” have to be made at the screening stage (“the first limb”), that is before the “appropriate assessment”, and at the development authorisation stage (“the second limb”), that is after the “appropriate assessment”, which would be consistent with his lordship’s reference to Waddenzee at paragraph AG107, in its context, recognising an element of potential confusion in the English-language version [Smyth v Secretary of State for Communities and Local Government  [2016] Env LR 7  at §§ 78 and 101] [3].  Accepting that Wednesbury applies does not authorise development approvals based on “appropriate assessment” findings which are not “capable of removing all reasonable doubt”[Sweetman at § 44; Commission v Italy (C-304/05), ECR I-7495 at §§ 58—71; European Commission v Spain (Alto Sil) (C-404/09) ECLI:EU:C:2011:768 at §§ 99—108; see also the observations on “intensity” of review in Kennedy v Information Commissioner [2015] AC 455 at §§ 51—55 per Lord Mance, at §§ 245—247 per Lord Carnwath, referred to by Seagreen and the RSPB].

  [168]    As stated above, in this case there is no clear-cut demarcation between the “appropriate assessment” stage and the authorisation stage.  The ministerial brief dated 19 August 2014 has the following description of the approach to the “appropriate assessment” stage [6/69, Summary of approaches, 4]:

  “Whilst there is considerable uncertainty over the estimation of wind farm effects, this has been undertaken in a precautionary manner at every stage of the process, and the estimated effects are at the upper end of the range. The application of precaution at each step is the result of the absence of any mechanism for capturing the uncertainty surrounding the estimation of wind farm effects in a meaningful quantitative manner. It is therefore the MSS view that the uncertainty has been considered appropriately by the precautionary approach taken.”

   

   

  The position of the SNCBs is summed up in both the Electricity Act 1989 section 36 consent decision and the Marine Works EIA Regulations reg. 22 consent decision, in the ministers’ words, as follows [eg 6/4, 30]:

   

  “SNH stated that the level of precaution which is appropriate is not a matter which can be determined precisely and that judgements have to be made. They went on to say that this is a new and fast developing area of scientific study and that approaches are continually developing and being tested. Many of the methods underpinning assessment (such as collision risk modelling) are based on assumptions for which it may take a long time to get field data to provide verification. So again, judgments had to be made where empirical analysis is unable to provide certainty.”

   

   

  The RSPB position is, first, that science cannot be described as “the best in the field” when it has not been validated by peer review; and, secondly, that where there are competing scientific views the article 6(3) test cannot be satisfied simply by choosing one of a number of competing views.  The RSPB is critical of choices within the “appropriate assessment” which are described simply as “appropriate” or “most appropriate”.  This sort of apparently subjective decision-making in the “appropriate assessment” is described as “a major blunder” [petitioner’s Speaking Note in Reply, § 5; 6/4: 16, “most appropriate displacement rates” (for kittiwake and puffin); 33, “most appropriate” collision risk model for kittiwake; 36, “most appropriate” collision risk model for gannet; 37, “most appropriate” parameters for puffin; 41, “most appropriate” method for setting thresholds for razorbill].

  [169]    I would not endorse the first point without qualification in a field where advances in knowledge are happening from year to year.  The RSPB itself favours a novel metric of project-lifetime effects called “CPS” (see below). The second point is perhaps not entirely straightforward either, in a situation where certain assumptions and methodologies contested by the RSPB have the expert support of the SNCBs, the statutory nature conservation consultees.  It depends on the precise issue and its context. But this is not immediately relevant to the questions which this section is deciding, namely whether there can be, legally-speaking, such a thing as “acceptable change” involving population reductions due to development impacts; and, if there can be such population reductions in principle, whether the conclusions of the “appropriate assessment” as expressed satisfy the legal test of being capable of removing all reasonable doubt about adverse impacts on site integrity.

   

  “Appropriate assessment”: conservation objectives
  [170]    The legal test for “appropriate assessment” combines the purely legal criteria set by the legislation as judicially interpreted with the “conservation objectives” of the SPA or SPAs in question, which the legislation requires to be part of the test [eg RSPB v Secretary of State for Environment, Food and Rural Affairs (Ribble Estuary) [2015] Env LR 24].  The “appropriate assessment” must assess the implications of the project for the site “in view of the site's conservation objectives”.  The full conservation objectives in this case are:

   

  “To avoid deterioration of the habitats of the qualifying species (listed below) or significant disturbance to the qualifying species, thus ensuring that the integrity of the site is maintained; and

   

  To ensure for the qualifying species that the following are maintained in the long term:

   

• Population of the species as a viable component of the site
• Distribution of the species within site
• Distribution and extent of habitats supporting the species
• Structure, function and supporting processes of habitats supporting the species
• No significant disturbance to the species.”

   

  The same objectives apply to both Forth Islands and Fowlsheugh SPAs. The first and last bullet points are particularly relied on by parties.

  [171]    On the advice, it is said, of the SNCBs, the “appropriate assessment” emphasises bullet point one, long term maintenance of species populations as “a viable component of the site” [6/4, 7; 13/56, SNCBs’ advice dated 7 March 2014]:

   

  “1c. Conservation objectives for qualifying interests:

   

  In their scoping advice the SNCBs advised that it is important to recognise that the conservation objectives primarily offer site-based protection and that some of the objectives will not directly apply to species when they are not present within the boundaries of the SPA or SAC in question.

   

  The SNCBs advice (dated 7th March 2014) to MS-LOT in relation to the Forth and Tay Developments is that for the SPAs the relevant conservation objective for this appropriate assessment is to ensure the long-term maintenance of the population as a viable component of each SPA under consideration...”

   

  The “appropriate assessment” continues [6/4, 8]: “As the potential effects of the proposed development, as identified, occur outside the SPA itself, any disturbance to the qualifying interests is only considered to be significant in terms of the relevant conservation objective if it could undermine the conservation objectives relating to population viability.”

  [172]    This is amplified as follows [6/4, 18]:

   

  “As detailed in section 1c, as the potential effects identified occur outside of the SPAs themselves, the relevant conservation objective for each qualifying interest is to ‘ensure the population of the species as a viable component of the site’ is maintained in the long term. In order to assess the potential effects of the Forth and Tay Developments, alone and in combination, on the achievement of the conservation objective the assessments for relevant species involved:

   

  1. )estimation of the level of predicted effect; and

      

     2.) setting a precautionary level of acceptable change to the population given the statutory requirements. Where it can be shown that the populations of all qualifying interests of concern can be maintained within the thresholds of change it can be concluded that the proposed developments will not adversely affect site integrity.”

      

      

     At the conclusion of the ornithological section, the “appropriate assessment” states:

      

     “In the assessments above MS-LOT have considered the conservation objective of ‘maintaining the population of the species as a viable component of the site’ on the individual qualifying features of the SPAs. As the effects of the Forth and Tay Developments on the populations were found to be within acceptable thresholds for all the species being considered in this assessment MS-LOT concluded that the Forth and Tay Developments will not adversely affect the integrity of the SPAs with respect to the individual qualifying features.”

      

      

     It seems to me that, in principle, this statement is entirely reasonable, so far as it goes, and provided that it is a correct expression of the conservation objectives.  Whether “thresholds” can be the sole measure of effects on site integrity is possibly a different question.  The RSPB maintains that even on the ministers’ own figures there is an adverse effect on the integrity of the SPAs.

      

     Pleadings and submissions about the conservation objectives

     [173]    The RSPB’s pleadings and submissions hardly engage with the ministers’ interpretation of the conservation objectives.  The only relevant averments occur towards the end of the Petition where the focus is on the last, “disturbance”, conservation objective [§§ 29(a), 29(b)]:

      

     “... Further, regulation 48(1) requires an assessment of the implications for a site in view of all the site’s conservation objectives, not just particular ones... When carrying out the Appropriate Assessment disturbance was only considered to be of significance if it could undermine the conservation objectives relating to population viability and thus was not assessed in its own right, as page 8 of the Appropriate Assessment makes clear. Articles 4(1) and 4(2) of the Birds Directive provide for broad protection. The failure to have regard to the disturbance conservation objective despite a displacement assessment having been carried out, means the Appropriate Assessment has not been completed adequately and it is unclear whether the SPA’s functions in the light of those conservation objectives will continue to be fulfilled despite these proposals...”

      

     The ministers’ Answers state among other things [§§ 29(a), 29(b)]: “All conservation objectives of the SPAs included in the AA were considered and SNCB advice was that ‘viable component of the site’ was the key consideration.”

     [174]    There is nothing in the main text of the RSPB’s Note of Argument about the issue around the “viable component” conservation objective. The appendices A and B contain some potentially relevant references to the European and United Kingdom legislation and to the EU Commission Guidance, but that is all [Commission Note on setting Conservation Objectives for Natura 2000 Sites, Doc Hab 12-04/06, November 2012].  The position taken by the RSPB in its Final Speaking Note in Reply is that thresholds of population change are ruled out as an “appropriate assessment” tool because of scientific uncertainties, not because they reflect an incorrect interpretation of the conservation objectives [§ 7(e)].

     [175]    The ministers’ Note of Argument states [§§ 47, 48]: 

      

     “... All conservation objectives of the SPAs included in the AA were considered and the SNCB advice was that ‘viable component of the site’ was the key consideration. This conservation objective also addressed the risks that disturbance and habitat loss could result in unacceptable population consequences... The SNCB’s [sic] advice in relation to the Forth and Tay Developments was that for the SPAs the relevant conservation objective for the AA was to ensure the long-term maintenance of the population as a viable component of each SPA under consideration. The SNCB advice was followed... “

      

      

     The ministers’ Note in Response to Final Submissions states [§ 8]:

      

     “The petitioners have offered no analysis to explain why in the context of the applicable conservation objectives any effect by a long-lasting project (such as a 25 year wind farm) must ipso facto be regarded as having an adverse impact on the integrity of the site... The petitioners have not engaged with the wording of the conservation objectives in the present case.”

      

      

     The final assertion is not contested in the RSPB’s Reply to Note for the Respondents in Response to Final Submissions.

      

      “Population of the species as a viable component of the site”
     [176]    “Conservation objectives” is obviously a term used in the habitats legislation: but it is not a term used in the wild birds legislation; it is nowhere defined; and there is no clear indication of what the content of conservation objectives might be.  It is implied that conservation objectives must relate in some way to the “qualifying conservation interests” or “features” of protected sites, whether habitats of bird species classified as SPAs, habitats of fauna and flora species designated as SACs or natural habitats (eg geological formations) also classified as SACs [cf. Waddenzee [2005] 2 CMLR 31 at §§ AG9, AG27, AG58, AG84, AG97 and at § 54].  Scottish Natural Heritage is responsible for proposing site-specific conservation objectives in Scotland.  From the many examples that have been exhibited it appears that SNH has used standard term conservation objectives for all, “biotic” habitats, at least for SPAs and habitats of fauna species SACs [eg, 6/4, § 1c “Conservation objectives for qualifying interests”, 7—9: but compare the more elaborate conservation objectives now suggested for the Forth & Tay marine dSPA (below)].  The conservation objectives for the Glen Etive and Glen Fyne SPA considered in the Bagmoor case are the same as for the Forth Islands and Fowlsheugh SPAs: in particular the conservation objectives for that SPA include the “population as a viable component” bullet point [Bagmoor Wind Ltd v Scottish Ministers [2012] CSIH 93 at § 10].

     [177]    In the Bagmoor case it was accepted that the displacement of one out of nineteen pairs of golden eagles from the SPA could properly be described as “an adverse effect on the integrity of the site”; and the Second Division concluded that, on the material put before the reporter, the reporter was entitled to recommend refusal of planning permission for the wind farm on the basis that it was doubtful that the risk of this adverse effect could be excluded.  The RSPB contends that Bagmoor illustrates that an approximately five per cent population reduction has to be treated as an “adverse effect” on site integrity.  However, I must observe that Bagmoor apparently proceeded on the basis of a partial concession; that although the same conservation objectives were in play, the question of population “viability” was not put in issue; and that, anyway, golden eagle (aquila chrysaetos) is an Annex I protected species [Birds Directive 79/409/EEC, now Directive 2009/147/EC, art. 13, Annex I].

     [178]    Nonetheless, my reaction, in the absence of submissions about the matter, is that the conservation objectives for SPAs have to be read subject to, and interpreted in terms of the overarching objectives of the Birds Directive 79/409/EEC, now Directive 2009/147/EC, and, where applicable, the Habitats Directive 92/43/EEC; and that the conservation objectives of  the legislation do not necessarily authorise member states to consent non-conservation interventions which have more than negligible population reduction impacts, unless for “imperative reasons of overriding public interest” in terms of article 6(4) of the Habitats Directive 92/43/EEC.  It is implied that conservation interventions for the purpose of population control are authorised [Birds Directive 79/409/EEC, now Directive 2009/147/EC, preamble, recital (7); cf. Habitats Directive 92/43/EEC, art. 1(1)].

     [179]    There is scope for debate as to whether the “viable component” SPA objective, properly construed in light of the applicable legislation, has in contemplation positive “conservation measures” for the purpose of maintaining and restoring viable populations, as opposed to the licensing of non-conservation population reductions to the limits of viability or, as the “appropriate assessment” calls them, “thresholds”.  The standard conservation objective about maintaining populations “as a viable component of the site” in the long term is applied equally by SNH to Annex I protected species SPAs, as in the Bagmoor case, and to Annex IV strict-protection species SACs [6/4, 8, eg “Moray Firth SAC - Bottlenose dolphin”; Habitats Directive 92/43/EEC, Annex IV, “cetacea, all species”].  The “viable component” concept is actually lifted from the Habitats Directive 92/43/EEC where it is linked with the idea of “favourable conservation status”.  Is it plausible that the “viable component” objective authorises reductions of populations which do not have “favourable conservation status”, applying that idea as defined by the Habitats Directive 92/43/EEC?  The conservation status of Forth Islands and Fowlsheugh kittiwake is assessed by SNH to be “unfavourable declining” and the “appropriate assessment” does not contest this [“Benign neglect is not an option”, Sweetman v An Bord Pleanála (C-258/11) ECLI:EU:C:2013:220, [2014] PTSR 1092 at § AG44; Birds Directive 79/409/EEC, now Directive 2009/147/EC, preamble, recitals 2, 3, 4, 6, 7, 8 and 11; arts. 1, 3 and 4; Habitats Directive 92/43/EEC preamble, recital 6, arts. 1(a), (e), (i), (k) and (l), 2(2), 3(1), 4(4), 6(2) and (3), 14(1), 16(1), 22(a); cf. the Environmental Liability Directive 2004/35/CE and the respective implementing regulations for Northern Ireland, Wales and England 2009/252, 2009/995 and 2015/810; 13/92, affidavit of J Wilson, § 76].

     [180]    All that having been said, the “viable component” interpretation point cannot be a ground of decision, the reason being that it is not a ground argued by the RSPB. Accordingly, I shall simply assume, without deciding, that legally-speaking, there can be such a thing as “thresholds” of “acceptable change” involving population reductions due to development impacts and, specifically, I shall assume that this is in accordance with the conservation objectives in this case.  There remains to be addressed the question whether the conclusions of the “appropriate assessment” satisfy the legal test, the legal test being that the conclusions of the “appropriate assessment” are capable of removing all reasonable doubt as to adverse effects on the integrity of the Forth and Tay SPAs.

      

     “No significant disturbance of the qualifying species”

     [181]    The conservation objective which is particularly relied on by the RSPB is the last bullet point, “No significant disturbance of the qualifying species”.  In this context it is worth illustrating the thinking of the SNCBs as to the meaning of the short form of conservation objectives for the Forth Islands and Fowlsheugh SPAs by considering the more elaborate version now suggested by SNH for the Forth & Tay marine dSPA [6/67, 4—5]. I deduce that the grouped paragraphs are to be read together:

      

     “To avoid deterioration of the habitats of the qualifying species or significant disturbance to the qualifying species, thus ensuring the integrity of the site is maintained and the site make an appropriate contribution to achieving the aims of the Birds Directive for each of the qualifying species; and

      

     To ensure for the qualifying species that, subject to natural change the following attributes of each qualifying species are maintained in the long term (10 year timeframe):

      

1. Population of the species as a viable component of the site
2. Distribution of the species within the site

   For each qualifying species there should be no substantive reduction (20%) in the baseline population or distribution within the site. Gannet, kittiwake, Manx shearwater, guillemot, razorbill and puffin are excluded from this numerical target because the basis of their population estimates (ESAS database) will be hard to replicate in future. The distribution of species within the site at baseline is set out in maps in the Departmental Brief.

    

3. Distribution and extent of habitats supporting the species
4. Structure, function and supporting processes of habitats supporting the species

   Existing extensive benthic beds of bivalves & crustaceans should be retained. The ability of the SPA to support healthy concentrations of a range of fish speces as prey for fish-eating birds should be retained. The total extent of foraging habitat accessible to the species within the site should be maintained.

    

5. No significant disturbance of the species

   Significant disturbance is disturbance which alters behaviour of the individuals to the extent that the energetics are effected and ultimately local survival and/or productivity is affected (potential for population decline in the long term), or disturbance which results in death of a non-negligible number of individuals of the qualifying feature (potential for population decline in the long term).

    

   For the purposes of Habitats Regulations Appraisal objectives 2-5 would normally apply to plans or projects within the site or having an effect on qualifying interests within the site. Objective 1, in respect of mobile species, may have a bearing outwith the site if adverse effects apply to species clearly connected with the site.”

    

    

   In the present case all parties accept that wind farm effects on breeding adults while foraging outside the boundaries of their breeding-colony SPAs constitute “disturbance”.

   [182]    Only impacts on breeding adults and productivity are modelled in the population viability analyses for the “appropriate assessment”, discussed below. There is disagreement about the treatment of effects on juveniles and non-breeding adults and about the treatment of non-breeding-season effects.  My understanding is that breeding adults of the migratory species with which the “appropriate assessment” is primarily concerned, namely kittiwake, gannet and puffin, tend to disperse widely after the breeding season.  I have the impression that juveniles tend to disperse widely before returning to breed several years later. In this connection the “appropriate assessment” appears to presuppose a high degree of nesting-site fidelity. The draft citation for the Forth & Tay marine dSPA does not cite wintering populations of kittiwake, gannet and puffin as qualifying interests [13/66, 34—35].  The SNCBs Departmental Brief for the Forth & Tay marine dSPA quantifies non-breeding season, I think resident, numbers of some species: 3,385 kittiwake; at least 25,355 guillemots; at least 5,329 razorbills.

   [183]    On the other hand presence during the non-breeding months and over-wintering are not necessarily synonymous. A recent report referred to by MSS in these proceedings describes pre-breeding migration of kittiwake, January—April, and post-breeding migration, August—December [13/80, Response to the Technical Component, § 123].  The Neart na Gaoithe Addendum of Supplementary Information shows kittiwake numbers in the Neart na Gaoithe project site peaking during the months July—November [13/85, Ornithology Appendix 1, 194, Figure 4.71]. Marine Scotland Science presents comparisons of gannet and kittiwake population estimates for “breeding season” and “non-breeding season”.  The gannet population estimates for the Forth and Tay region are respectively 116,538 (breeding season adults) and 200,000 (non-breeding season).  These are individual birds rather than pairs.  The kittiwake population estimates in the Forth and Tay region on the same basis are respectively 159,594 and 400,000. It is said that “populations during the non-breeding season are significantly greater due to movement of birds to and through the North Sea, leading to ‘dilution’ of population level effects” [6/70, “Summary of approaches”, 11, Table B].  “Dilution” means a reduction in the proportion of total mortalities referable to SPA-connected birds, not an absolute reduction in SPA-connected mortality.  About 35% of kittiwake in the Forth and Tay region breed outside the SPAs [6/70, 11].  It is not explained what proportion of the 400,000 non-breeding season population might be accounted for by first-year juveniles.  Paradoxically most monitoring of displacement and barrier effects takes place outside breeding seasons, maybe because the impact of turbines is easier to assess in the windier weather [6/4, 21].

   [184]    Outside the breeding season there is difficulty in connecting birds which are present in the area with protected colony populations.  The RSPB counters that in terms of the Birds Directive 79/409/EEC, now Directive 2009/147/EC, there is a separate, continuing obligation to avoid disturbances affecting all wild birds.  It is correct, as the RSPB submits, that articles 1 and 2 of the Birds Directive 79/409/EEC, now Directive 2009/147/EC, impose a duty to take the requisite measures to maintain the population of all species of wild birds: but the duty is a general one, is qualified, and does not have obvious application in the present situation.  Article 4(4) provides specifically (my emphasis): “In respect of the protection areas referred to in paragraphs 1 and 2, Member States shall take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting the birds, in so far as these would be significant having regard to the objectives of this Article.”  These words suggest that connectivity with SPAs is a prerequisite.  In any event I do not agree that the existence of separate obligations in terms of the Birds Directive 79/409/EEC, now Directive 2009/147/EC, adds anything to the tests in terms of the Habitats Directive 92/43/EEC, art. 6(3).  Ground B.1 is about quashing development authorisations for alleged unlawfulness in terms of the Habitats Directive 92/43/EEC, not about quashing the authorisations for non-compliance with the Birds Directive 79/409/EEC, now Directive 2009/147/EC.

   [185]    This is not to say that the consequences for population forecasts of leaving non-breeding impacts out of account are immaterial. An overestimate of the proportion of non-breeders means a reduction in estimated population scale effects; and estimated effects are also reduced if the breeding season is too narrowly defined or if there are significant effects outside the breeding season, however defined.  In relation to the first point the “appropriate assessment” records a divergence of views between the SNCBs and MSS about the proportion of puffin immatures and non-breeders.  The SNCBs advised 17% while MSS advised 50%. The difference was apparently resolved by adopting a middling figure of 0.35  or 35% [6/71, Minute of Forth and Tay Escalation Meeting, 27 June 2014, “Actions” and b) Displacement effects, puffin; 6/4, 37, Appendix 4, 69].

   [186]    There is no resolution of the divergence between the SNCBs and MSS about non-breeding effects.  The different views bear on the question whether a margin of safety should be allowed between estimated effects and thresholds [6/71, Minute of Forth and Tay Escalation Meeting, 27 June 2014, Views on whether it is appropriate to reach a threshold]. The only relevant statement in the “appropriate assessment” is about the uncertainty that would be involved in apportioning non-breeding season effects to breeding colonies [6/4, Appendix 1, 69].  In these proceedings MSS offers a number of reasons for not assessing non-breeding impacts, namely (1) that the approach in the “appropriate assessment” is based on SNCB advice and is supported by the SNCBs, (2) that appropriate non-breeding season quantitative tools were not available at the time of the “appropriate assessment”, (3) that the inclusion of non-breeding season effects increases the complexity and uncertainty of any “appropriate assessment”, (4) that it is not clear that such an assessment is required under the Habitats Regulations, (5) that the most important drivers of population viability are breeding adult survival rates and productivity, (6) that there is no agreed method of assigning connectivity with SPAs in the non-breeding season, (7) that quantification of effects has the potential to be almost endlessly extended to incorporate additional factors, and so on [13/80, Response to the Technical Component, §§ 121--131].

   [187]    Marine Scotland Science states [13/80, Response to the Technical Component, § 127]:

    

   “In principle, effects on individuals from the breeding colony can take place outwith the breeding season, which can then impact the conservation objectives for that breeding colony. However it is not clear that the most appropriate statutory mechanism for assessing that issue is through the assessment of those effects on the breeding colonies. It may be more appropriate to assess them with respect to favourable conservation status (i.e. at the larger BDMPS [biologically defined minimum population scale] scale.”

    

   Marine Scotland Science goes on to state [13/80, Response to the Technical Component, § 136]:

   “It is wholly appropriate [sic] to base an assessment of integrity with respect to effects that are occurring at a location geographically remote from the SPA on the long-term viability of the population. Whether or not x number of birds are displaced/disturbed is not the issue. It is the consequences of those effects for designated SPA populations that are of concern.”

    

    

   I think “appropriate” is meant to be “inappropriate”.

   [188]    The advice of the SNCBs is misunderstood or miscommunicated by MSS [6/6, SNH & JNCC Advice on Cumulative Impacts, 7 March 2014, covering letter “Key Advice”, Appendix A1, 1—3, Appendix A8, 33—34; 6/71, Minute of Forth and Tay Escalation Meeting, 27 June 2014].  The position of the SNCBs, as I read it, and of the RSPB in these proceedings, is that, while a quantitative assessment of non-breeding impacts may be difficult, even impracticable, non-breeding impacts are a material consideration and should be taken into account if need be in a qualitative way, or at least identified as a material uncertainty, when assessing wind farm effects on the protected populations of interest at Forth Islands and Fowlsheugh.  This is correct in my opinion. It is a correct application of the legislation.

   [189]    I say this on the understanding that the non-breeding impacts cannot be dismissed as negligible. The ministers do not suggest that they are negligible.  Indeed, the MSS estimates presented in the ministerial brief of 19 August 2014 show non-breeding season collision mortality of kittiwake to be greater than breeding season collision mortality: there is no explanation of connectivity or otherwise but I assume, because of the discussion of “dilution”, that there is an apportionment to SPAs [6/69, 3, Table 2; 6/70, 11, Table B].  (The figures do not include displacement/barrier effects.) I reject the reasons given by MSS for leaving non-breeding impacts out of account.  Except insofar as Dr McCluskie’s affidavit evidence might possibly suggest that the SNCBs favour leaving non-breeding season impacts out of account altogether, I accept the evidence offered by Dr McCluskie [6/63, affidavit of A McCluskie, 33, §§ 121—131].  On the other hand, agreeing with MSS, I do not say that the “appropriate assessment” is bound to assess, quantitatively or qualitatively, impacts at a strategic, or United Kingdom level.

    

    

   Ground B1: the “appropriate assessment” and thresholds of “acceptable change”

   [190]    The premise of the “appropriate assessment” is that there is such a thing as “acceptable” change.  This premise is not ill-founded, or at least not wholly ill-founded, noting that species population numbers are subject to changes without identifiable anthropogenic impacts.  These changes are spoken of as “natural fluctuations” or “natural variations”.  The Birds Directive recognises the existence of “trends and variations in population levels” and the Habitats Directive refers to “population dynamics” [Birds Directive 79/409/EEC, now Directive 2009/147/EC, art. 4(1); Habitats Directive 92/43/EEC, art. 1(i)].

    

   Population viability analysis [PVA]

   [191]    There are examples of wide natural variations. The “appropriate assessment” presents data showing the St Abb’s Head to Fast Castle SPA kittiwake population at about 6,000—it is not clear whether these are individuals or breeding pairs, but I think pairs—in 1970, peaking at about 19,000 in 1990 then reducing to about 6,000 again in 2006, and continuing to decline [6/4, 31, Figure 2].  To take two other examples, Charles Nathan’s affidavit states that the Bass Rock gannet population, based on apparently occupied nests, was recorded at 21,591 pairs in 1985, 48,065 pairs in 2004 and 55,482 pairs at the latest census in 2009.  And again, the affidavit gives the Isle of May puffin population, based on apparently occupied nests, as 12,000 pairs in 1984, 20,106 pairs in 1992, 69,300 pairs in 2003 and 44,971 pairs in 2009 [6/37, §§ 23--27].  Population trends, under what are taken to be natural conditions, represent so-called “baselines”.

   [192]    The “appropriate assessment” assumes that “the greatest material considerations are the natural variability of the species as a consequence of its life history traits and the corresponding ability of the population to recover from impacts over time.” The rationale of the “appropriate assessment” is that change is acceptable if within the range of what would be expected to occur under natural or baseline conditions.  It is then reasoned that no adverse effect on site “integrity” is demonstrated from additional, wind farm impacts so long as, on average, the outcome for the affected population is within the range of outcomes representing what would be “about as likely as not” without the additional impacts [13/80, §§ 47, 62].  The meaning of “on average” is discussed below.

   [193]    The “appropriate assessment” sets out to present an account of the species populations going forward, comparing outcomes with and without wind farm effects or impacts. With adequate colony census data and natural history information, this can be done using the outputs from population viability analyses [PVAs].  Inputs include the size of the starting population, age distribution within the population, age at first breeding, fecundity rate, chick survival rate, adult survival rate, etc.  Marine Scotland commissioned PVAs from the Centre for Ecology and Hydrology [CEH] and MacArthur Green Limited, consultants.  The CEH report presents outputs for kittiwake, guillemot, razorbill, puffin and herring gull colonies. MacArthur Green reports on puffin and gannet colonies.  Modelling computer-simulates population baselines and additional impacts in a variety of future scenarios.  For example, if I understand correctly, the MacArthur Green puffin PVA ran 5,000 simulations for each of thirteen scenarios in each year of the 25-year projected lifetime of the Forth and Tay developments.

   [194]    The respective reports or groups of reports represent two main types of PVAs, stochastic and deterministic.  Stochastic models as used by CEH attempt to capture unpredictable environmental and demographic variability.  The outputs of the CEH stochastic modelling are expressed in probabilistic ranges.  Deterministic modelling as used by MacArthur Green forecasts actual population numbers or comparative change using median values.  All models can include or exclude density dependence, being the effects of population density, negative and positive, through increased or decreased competition for resources, food, mates, nesting sites.  I think all the modelling in this case is density independent: but at various points the “appropriate assessment” recognises that population density is likely to affect the real-life outcomes.

   [195]    The species of primary interest are northern gannet (morus bassanus), Atlantic puffin (fratercula arctica) and black-legged kittiwake (rissa tridactyla).  Different approaches to threshold metrics are used for each of these species.  There are indications of a strategy of retrofitting thresholds to impacts as opposed to testing impacts against thresholds previously established.  This is not necessarily to be criticised as a screening or hypothesis-testing exercise, because results may reveal that further, more complex investigation is unnecessary.  There is a correlation in the “appropriate assessment” between population growth forecasts or the quality of data inputs and the choice of metric.  The density-independent growth forecast for the Forth Islands gannet population is positive, continuing the strong upward trajectory of the past 30 years (above) over the projects’ lifetimes.  United Kingdom gannet colonies, including the Bass colony, have been well studied for many years.  The maximum allowable effect agreed with the SNCBs is based on the risk of the end population in year 25 being 5% less than the starting population.  For puffin, there are reservations about the reliability of the modelling inputs and the CEH PVA therefore does not address probabilities of end-population decline [6/36/52, CEH, Population Dynamics of Forth & Tay Breeding Seabirds, 84].  The assessment is based on the risk of the population in any single year of the 25-year lifetime of the projects being 5% less than the starting population.  The decline of the kittiwake populations at Forth Islands and Fowlsheugh is forecast to continue.  The setting of kittiwake thresholds is explained in what follows.

    

   Forth Islands and Fowlsheugh kittiwake and acceptable biological change [ABC]

   [196]    The CEH PVAs include modelling for two of the three species of primary interest, namely puffin and kittiwake.  The CEH outputs are annual colony population sizes up to and including the projected end of the project’s life in 25 years’ time.  Outputs are validated by comparing with past colony counts to check for goodness of “fit”.  Caution is advised by CEH in relation to their puffin PVA because, it seems, of a poor fit of the model with the widely fluctuating colony counts at Forth Islands SPA and “erratic” population forecasts. The “appropriate assessment” explains that the CEH puffin model is consequently not used for assessing “acceptable change”.  A PVA for the third species of primary interest, gannet, has not been produced by CEH.  The discussion that follows takes the kittiwake colony PVAs, Forth Islands and Fowlsheugh, as the paradigm and the discussion focuses initially on the kittiwake models.

   [197]    The “appropriate assessment” generally works with relative frequency or probabilities and cumulative probability to understand the likelihood or otherwise of population outcomes [6/4, 75—76; 6/17, Misleading use of science, 7; 13/80, Response to the Technical Component, § 58].  To communicate the probability of outcomes the “appropriate assessment” uses the standardised forecasting vocabulary agreed by the International Panel on Climate Change [IPCC] and superimposes the IPPC calibration, as it were, on the range. Applying the IPCC vocabulary, the “appropriate assessment” takes the middle one-third of the distribution, from the 33.3% quantile to the 66.7% quantile, to represent outcomes which are “as likely as not”.  The “allowable” or “acceptable” population reduction effects are taken by the “appropriate assessment” to lie between the 50% quantile, the 50:50 likelihood midpoint of the range, and the 33.3% quantile under baseline conditions.  The population size or percentage change at the 33.3% quantile represents the so-called “threshold” or the greatest magnitude of “acceptable biological change” [ABC].  (For illustrative purposes only, see SNCBs’ coloured population trajectory graph for Forth Islands kittiwake with additional impacts and threshold at 66/36/140, 3, Figure 1, where, for the purpose of that presentation, the limit of acceptable change is described as the 66.7% quantile, signifying a 66.7% probability of end-populations being greater than the size shown at the quantile).

   [198]    Marine Scotland Science states [13/80, Response to the Technical Component, § 47]:

    

   “By basing the assessment on a change in probability the assessment is sensitive to life history traits. This ensures that less change is allowed to populations that are less likely to be able to recover from change. ABC is an example of this general approach to interpreting population model outputs. By limiting the magnitude of the change to within the range that is “about as likely as not, ABC ensures that the scale of the perturbation is well within the range that can be expected to occur in any event as a consequence of natural variation.”

    

   A moment’s thought shows that this is impeccable where good quality data over a significant period shows numbers above and below a steady baseline and where extrinsic conditions are guaranteed to remain stable for the period of forecast, but not otherwise.  As a matter of fact, the collapse in Forth Islands kittiwake in 1998 was not followed by a recovery [6/36/52, CEH, Population Dynamics of Forth & Tay Breeding Seabirds, 12].  Yet, the “appropriate assessment” assigns proportionately the greatest allowable annual adult population reductions from wind farm impacts to Forth Islands and Fowlsheugh kittiwake, colonies declining towards projected extinction [6/4, 28—29, Table 5; Appendix 7, Table A].

    

   Reduced uncertainty acceptable biological change [ruABC]

   [199]    At one point the RSPB Petition visualises a graph and the distribution as, I think, a curve with the apex representing the median, as if population size were scaled on the horizontal x axis.  The flatter the curve and the wider the distribution, the further, in population-size terms, the 33.3% quantile threshold of acceptable change lies from the median.  The flattening of the distribution curve reflects uncertainty—paucity, variance, observer and estimation error—in the input data sets.  A criticism made of ABC is that the greater the uncertainty, the greater the population reductions that are deemed “acceptable” [Petition, 38, § 28(g); 6/63, affidavit of A McCluskie, § 46].

   [200]    This point is acknowledged.  The SNCBs propose a way of mitigating human error by pooling outputs from individual sites with results from CEH’s larger regional models. This is “reduced uncertainty acceptable biological change” [ruABC].  The ruABC tool qualifies the median population size of the specific colony of interest by applying a factor derived from a comparison of the median with the threshold and the difference between them in the regional model [6/4, 25—26].  The practical effect, at least generally speaking, is to reduce the population-size difference between the median and the threshold for the colony of interest and thus to reduce the scope for “acceptable” change attributable to additional, wind farm impacts.[4] I read the SNCBs’ figures as showing an average one third reduction in acceptable adult mortality [6/6, SNH & JNCC Advice on Cumulative Impacts, 7 March 2014, Appendix A4, 19—20; 6/36/140, Addressing uncertainty in population model outputs, 7, Table 4; 6/4, 26; 13/92, affidavit of J Wilson, § 83].

   [201]    The SNCBs advise using ruABC for the assessment of impacts based on CEH stochastic modelling of the populations of interest—puffins not included, as explained above—in all SPAs.  The advice is only partially accepted. The “appropriate assessment” uses ABC for Forth Islands kittiwake and ruABC for Fowlsheugh kittiwake, giving the explanation that good site-specific data is preferable if available, that there is good site specific data for the Forth Islands kittiwake colony and that the population counts for Fowlsheugh are sporadic or that the data are otherwise limited.  The SNCB position is that uncertainty in the model outputs is similar for sites with good and with poor data [6/71]. The implications of the divergence are not as clear as they might be for the reason that the “appropriate assessment” does not offer a straight comparison of ABC results with ruABC results.  The SNCB figures as at 6 February 2014 show the ABC allowable annual additional adult mortality threshold for Forth Islands kittiwake to be 2.7% and the ruABC figure to be 1.7%; and for Fowlsheugh kittiwake, 4.0% and 2.0% respectively [6/6, 6/36/140, Reducing uncertainty in population model outputs, 7, Table 4; cf. 6/4, 27, Table 4].

    

   Additional impacts: interpolation, extended interpolation or “scalar”

   [202]    For the purpose of assessing impacts against thresholds, the PVAs produce outputs incorporating three kinds of indicative values for “a number of impact scenarios”, presumably specified by MSS, corresponding to possible magnitudes of wind farm effects. These are: four values of reduced adult annual survival, reductions of 1%, 2%, 3% and 4%; four values of reduced annual productivity, reductions of 1%, 5%, 10% and 20%; and four composite values for reduced adult annual survival with reduced annual productivity, reductions of 1% + 1%, 2% + 5%, 3% + 10% and 4% + 20% respectively.  Interpolation between these whole number percentages or integers in each series of values allows, it is said, intermediate “thresholds” to be modelled.

   [203]    The intended meaning is, I think—in the absence of appendix 4 from my copy of the CEH report—that thresholds are expressed in annual population reduction percentages; and that where the threshold quantile lies between the population scale effects produced by the indicative values, whether for reduced annual adult survival, reduced annual productivity or reduced annual adult survival and productivity combined, interpolation derives the intermediate values that represent thresholds or maximum allowable effects. This is “standard interpolation” [6/4, 24—25, 27, 68—69 and 77—78; 13/92, affidavit of J Wilson, §§ 81—84].

   [204]    But when the “appropriate assessment” states that “MSS advised a second stage of interpolation of thresholds” I am less sure of the meaning. The whole passage reads [my emphasis, 6/4, 27]:

    

   “To accommodate an assessment that is based upon the estimated [wind farm] effects, MSS advised a second stage to the interpolation of thresholds that allows the productivity effects estimated by the CEH model to be taken into consideration in setting the threshold for adult survival. This has the advantage of matching the level of reduced productivity in the threshold calculation to that estimated, and also of providing an adult survival threshold that can be used as the focus of mitigation and assessment. Further details of this interpolation method are provided in Appendix 3.”

    

   Appendix 3 includes the following [6/4, 77]:

    

   “MSS first calculate the percentage point decrease in chick survival that brings about the same decrease in future population size as a 1% decrease in adult survival. This ratio is used to convert the difference between the chick survival threshold and the predicted reduction in chick survival to an adult survival to an adult survival rate… The interpolation is applied so that if the productivity threshold is reduced, there is a corresponding increase to the adult survival threshold.”

    

    

   This is the novel “extended interpolation” or “scalar” method used in the “appropriate assessment”.  (The “appropriate assessment” uses the word “method”.)

   [205]    Then in the current proceedings we find MSS stating [13/80, Response to the Technical Component, § 104]:

    

   “The RSPB’s description of the purpose of the interpolation undertaken is misleading. The interpolation method (referred to as the “scalar method” in the RSPB petition)... was not used to set thresholds...”

    

    

   Is it possible to reconcile this with the statement in the “appropriate assessment” quoted above that the scalar method allows productivity effects to be taken into consideration “in setting the threshold”?

   [206]    Marine Scotland Science gives a worked example of how the so-called “second stage of interpolation” or scalar works for the Forth Islands kittiwake assessment.  The modelling uses combined reduced adult survival and productivity integers of 1% + 1%, 2% + 5% and so on (above).  The threshold established by ABC for this combined series applying standard interpolation is 1.75% + 4%.  The estimated impact from the MSS collision risk and displacement/ barrier effects modelling is 1.78% + 1.18%.  (As I understand it, the collision impact contribution to the 1.78% value is 0.37%, using a 95% avoidance rate, as discussed in the next section, and the balance of between 1.41% and 1.42% is accounted for by displacement/ barrier effects, as shown in Table 6 of the “appropriate assessment”.)  The estimated effects values lie between the threshold values: the reduced annual adult survival impact of 1.78% exceeds the ABC 1.75% threshold and the reduced annual productivity impact of 1.18% falls short of the ABC 4% threshold. Some of what is called “the ‘spare’ productivity headroom from the estimated magnitude of effect on productivity”—the difference between 1.18% and 4%, being 2.82%—is converted to derive what is called “an adult survival equivalent” of 2.4% [13/80, Marine Scotland Science Response to the Technical Component of the RSPB Petition, § 104; 6/4, 32, Table 6].

   [207]    The first step involves tweaking the estimated productivity effect, 1.18%, by adding 0.37% “to build in precaution”, giving a notional productivity effect of 1.55%.  (The 0.37% figure is the Forth Islands kittiwake collision mortality value as just stated: but in the absence of an intelligible explanation there is a risk that the so-called “precautionary” addition might be understood as the result of a back-calculation to find out how much “spare” productivity effect is needed for the conversion.)  Subtracting the notional estimated productivity effect of 1.55% from the threshold productivity value of 4.0% leaves “spare productivity” of 2.45%.  A conversion factor is applied, being a factor based on the ratio of chicks hatched to birds that reach breeding age, said to be 4:1 for Forth Islands kittiwake.  A straight or linear 4:1 conversion changes the 2.45% “spare productivity” figure, dividing by four, to an “adult survival equivalent” figure of 0.61%.  The “derived” or “adjusted” reduction in adult survival threshold is arrived at by adding the “adult survival equivalent”, 0.61% in this case, to the existing estimated reduction in adult survival figure, 1.78% in this case, giving 2.39%, rounded to 2.4% for use as the annual reduction in adult survival threshold value in the “appropriate assessment”.  The regression value of the linear trendline is said by MSS to show a very good fit for the kittiwake data (from modelling outputs), which may be the case, but the statistical and biological rationale is not obvious and is not explained in a way that I can understand or that is acceptable to the SNCBs. What is obvious is that as a result of the calculation, combined reduced adult survival and reduced productivity threshold values of 2.4% + 1.55% now accommodate the combined estimated wind farm effects figures of 1.78% + 1.18% [6/4, Appendix 3, 77—78; 13/80, Marine Scotland Science Response to the Technical Component of the RSPB Petition, § 104; 13/92, affidavit of J Wilson, 19—20, §§ 81--91].

   [208]    Critics might call this “moving the goalposts”.  The RSPB refers to “manipulating” thresholds. This is a possible meaning of the words in the “appropriate assessment” itself: “This [scalar] has the advantage of matching the level of reduced productivity in the threshold calculation to that estimated [with wind farm effects]…”  The scalar-adjusted figures presented in the “appropriate assessment” are headed: “MSS threshold ABC derived adult survival decrease”, etc.  In the case of Forth Islands kittiwake the net result is to increase the allowable additional annual adult mortality from 1.5%, using ruABC without scalar as advised by the SNCBs, to 2.4% using ABC with scalar as advised by MSS.  This latter level of impacts “allows” a comparative end-population reduction of 31% on the “appropriate assessment’s” own figures [6/4, 29, Table 5].  It does seem therefore that scalar is used, if not for setting thresholds, at least for adjusting thresholds.  It is potentially misleading to describe scalar as “another stage of interpolation”, the reason being that scalar involves not simply filling in intermediate values in the same series but conversion between different kinds of values; and the impression given is that it is directed at “accommodating” estimated wind farm effects [6/4, 27 and Table 4; 6/63, affidavit of A McCluskie, 31, § 104; 6/70, ministerial briefing paper “Summary of approaches”, 8].

   [209]    On the point of intelligibility, the RSPB contents itself with saying: “The scalar method is a novel method that is poorly explained in the Appropriate Assessment and has no other supporting documentation, which makes it difficult to comprehend and critique” [cf. Petition, § 28 “Use of Scalar Method/ MMS [sic] method of interpolation”, 28(h)—(l); Answers for the ministers, § 28 “Use of Scalar Method/ MMS [sic] method of interpolation”, 28(h)—(l); 13/80, Marine Scotland Science Response to the Technical Component of the RSPB Petition, §§ 104—120].

   [210]    The conclusion reached by the SNCBs is that the combined effects of the projects exceed the ruABC thresholds for Forth Islands SPA and Fowlsheugh SPA kittiwakes; and that the projects will have an adverse impact on the integrity of the Forth Islands and Fowlsheugh SPAs [6/4, 33; 81, Appendix 6].  The combined effects would still exceed the ruABC thresholds after mitigation measures at Seagreen Alpha and Bravo and Neart na Gaoithe [6/4, 31—32].

    

   Forth Islands gannet  

   [211]    Although the bullet points at the start of the “appropriate assessment” section on methods of setting thresholds might lead the reader to expect some general discussion of gannet and puffin population modelling, there is no discussion of the gannet population model; and the discussion of the puffin model is limited to the explanation that the CEH PVA is not relied on and that PBR [potential biological removal] is “used to inform puffin thresholds” [6/4, 24—30].

   [212]    Some description of the gannet model is contained in the section “Assessment conclusion for each species and colony” under the heading “Gannet—Forth Islands SPA” [6/4, 34—36].  The assessment states that: “UK gannet populations are exhibiting significant positive growth rates, continuing a long period of expansion over the past 100 years.” Because the population increase is forecast to continue, the “metric used for establishing a threshold is the probability that the population size at the end point will be lower than the starting population”.

   [213]    The starting population is based on extrapolations from the latest census data. The “appropriate assessment” collision and displacement/ barrier modelling forecasts the annual adult breeding population reduction effect to be up to 1.05% from all Forth and Tay projects in combination.  This is within the “appropriate assessment’s” threshold value.  The threshold is set by reference to the risk with additional wind farm impacts, based on deterministic population modelling, of there being a decrease by 5% from the starting population size over the 25-year life of the projects.  The modelling shows only a 5%, “extremely unlikely” risk of this outcome if the additional annual adult mortality from wind farm effects is 1.17% or 1,300 individuals.  This is well within the 50%, “as likely as not” risk-ceiling agreed with the SNCBs.  The “appropriate assessment” sets the threshold of acceptable change at an annual reduction in the adult survival rate of 1.17% which obviously accommodates the impact-modelling figure of 1.05%.  When I say “obviously” I mean assuming that neither figure has to be qualified or further qualified for uncertainty.

   [214]    To put the matter in context the PVA shows a 50% risk of 5% end-population reduction if additional annual adult mortality increases to 2,300 [6/36/56, MacArthur Green Limited Bass Rock Gannet PVA, Table 1].  There is also an unaccounted-for risk of population reduction by virtue of density-dependence effects.  The CEH PVA states [my emphasis]: “... it is clear that the baseline population growth projected by the density independent model could not occur on the Bass Rock in terms of breeding numbers because the island is already almost completely occupied by gannets...”  This is freely translated in the “appropriate assessment” as: “Population size may ultimately be regulated by available colony space on the Bass Rock...” [6/56, 3; 6/4, 34].

   [215]    The SNCBs’ assessment, using the same threshold but with collision and displacement/ barrier effects modelling which forecasts a higher rate of attrition, is that the projects will have an adverse impact on the Forth Islands SPA gannet [6/4, 35; 81, Appendix 6].

    

   Forth Islands puffin

   [216]    Puffins as burrow nesters are difficult to count. The widely fluctuating population counts result in the CEH stochastic PVA predicting what are thought to be overestimates of population growth.  One of the “key concerns” with the CEH model is said to be uncertainty.  The “appropriate assessment” states: “[I]n reality, density dependent population regulation will slow the rate of increase at some point, eg areas suitable for burrows may become limiting.”  For puffin the flight pattern means that the dominant wind farm effects are displacement and barrier effects rather than collision impacts.  The CEH recommendation is to use proxy species—ledge-nesting guillemot and razorbill—thresholds, with caution.  The threshold for annual reduction to the adult survival rate initially obtained by MSS is 1.7% within a range of 0.8% to 2.9%.  That threshold is set using a combination of PBR and ABC thresholds for guillemot and razorbill proxies assuming age of first breeding for puffin at five years.  Marine Scotland then commissioned a PVA from MacArthur Green Limited.

   [217]    The MacArthur Green deterministic PVA predicts the annual population growth rate for Forth Islands puffin to be 6.4%, also considered to be an overestimate, with the risk of decline in any year under baseline conditions to be 5.6%, 18:1 against. The outputs produced by the impact modelling show the additional annual adult mortality from wind farm effects to be 2.01% and the additional annual reduction in productivity to be 4.02%.  With these impacts the population modelling is said to demonstrate a risk of less than 1%, 100:1 against, that the population in any year will be 5% less than the starting population.  It would have been useful to know how these results are to be reconciled with the results based on the CEH modelling. 

   [218]    The SNCBs’ threshold for reduction to the annual adult survival rate is 1.4% using a combination of PBR and ruABC thresholds for guillemot and razorbill proxies assuming age of first breeding for puffin at seven years.  The SNCB advise that the projects will have an adverse impact on the Forth Islands SPA puffin [6/4, 39; 81, Appendix 6].

    

   Non-breeding season effects

   [219]    The reference populations for the “appropriate assessment” modelling are the breeding populations of the focal species at Forth Islands and Fowlsheugh etc.  The “appropriate assessment” states [6/4, Appendix 1, 69]: “SNCB advice was that the SPA’s [sic] being considered are protected for breeding seabird colonies and that the scope of the in-combination assessments being completed for the Forth and Tay wind farms should consider the breeding season effects.”  The breeding season is not defined.  I assume it is a four- to five-month period from April to August for all species.  The only mention of non-breeding impact assessment is [6/4, Appendix 1, 69]:

    

   “Marine Scotland are also mindful of the considerable uncertainty that would be associated with apportioning out of breeding season effects to breeding colonies. As a first step, we consider that assessing non-breeding season effects against non-breeding season populations is more appropriate, given the current evidence base. As RSPB are aware, Natural England have contracted MacArthur Green to define regional non-breeding season populations, which will assist with these assessments in future.”

    

   The only insight offered within the “appropriate assessment” itself into the scale of non-breeding impacts is [6/4, 21]: “Most of this [European offshore wind farm] monitoring focuses on the non-breeding season as this is when the wind farms being monitored were considered to have the greatest impact.”

   [220]    The ministerial briefing paper of 29 August 2014 presents figures showing estimated in-combination annual mortality effects, both breeding season and non-breeding season, for gannet and kittiwake. The figures are for adult collision mortality only, individual birds [see below, paragraph 247].  [6/69, 3, Tables 2 and 3; 6/70, 11, Table B; 6/4, Appendix 7, Table B].  The position of the SNCBs as minuted at the “escalation meeting” of 27 June 2014 is [6/71]:

    

   “The SNCBs advise that because there is uncertainty in the methods of estimating effects and setting thresholds, then precaution should be taken where effects approach the threshold… The SNCBs also highlighted that the non-breeding effects have not been included in the assessment therefore again thresholds should not be reached.”

    

   The minute concludes by recording disagreement between the SNCBs and MSS as to whether it is appropriate for effects to come close to thresholds.

    

   Ground B1: adverse effect on site integrity and reasonable doubt
   [221]    I am not convinced that a sea bird “appropriate assessment”, however skillful, however conscientious, can aspire in the present state of knowledge to be more than a kind of structured haruspication [cf. 13/80, Response to the Technical Component, §§ 59--61].  Still, exercises of this type should abide by the rules including the rules they set themselves; and in at least four of the respects identified by the RSPB this “appropriate assessment” does not do so.  It does not allow for the exclusion of, or exclude, adverse in-combination effects on site integrity to the requisite degree of certainty in respect of all qualifying interests of each SPA.  It is also my opinion that the development authorisations purport to be certain about the absence of adverse effects without addressing all effects which have to be considered.

   [222]    The most obvious difficulties are with the kittiwake colony assessments for the Forth Islands and Fowlsheugh SPAs.  These kittiwake populations are in decline. In the discussion of these assessments that follows I proceed on the assumption, as stated above, without necessarily accepting, that there is such a thing as “acceptable” population reduction caused by wind farm effects.  I also assume, again without deciding, that the parties are correct in thinking that the precautionary principle has a part to play in the “appropriate assessment”.  

    

   Scalar and reasonable doubt

   [223]    The first difficulty is with so-called “scalar”.  In their advice of 6 June 2014 the SNCBs state [6/8]:

    

   “We highlight our serious reservations about the scalar method proposed by Marine Science Scotland for use in setting thresholds. We advise that it is inappropriate to use this approach without more consideration and testing of the underlying assumptions.”

    

    

   To be clear, scalar is a novel method improvised by MSS specifically for the Forth and Tay combined assessment.  It is not included in the environmental statements.  It has not been published.  It has not been peer-reviewed. It has not been consulted on, or fully consulted on. The response to such consultation as there has been, with the SNCBs, is negative. I deduce that Appendix 3 of the “appropriate assessment” gives some account of the specific concerns raised by the SNCBs in June 2014.  The disagreement was not resolved at the “escalation” meeting of 27 June 2014 [6/71; 13/93, affidavit of F Bennet, § 24].

   [224]    The impacts on Fowlsheugh kittiwake are within the threshold of acceptable change set by using ruABC with scalar, the latter method not being approved by the SNCBs.  The impacts on Forth Islands kittiwake are judged to be “acceptable” using ABC with scalar. The whole threshold-setting package for Forth Islands kittiwake is contrary to the advice of the SNCBs [6/4, Table 5; 6/71].  The conclusion of the kittiwake assessments includes the sentence: “MS-LOT also consider that MSS provide [sic] good reasons for why their method for setting the threshold is the most appropriate as detailed on pages 26—27” [my emphasis, 6/4, 26—27, 33]. Page 26 is about ruABC and ABC; page 27 is about scalar.  This sentence is challenging.  For one thing, MSS say in these proceedings that scalar is “not used for setting thresholds” (above).  For another thing, there are two kittiwake thresholds, one for Forth Islands and one for Fowlsheugh; and these thresholds are set by different methods, ABC with scalar, and ruABC with scalar.  There is a question as to whether MS-LOT’s judgement on the matter is meant to be part of the article 6(3) first-sentence exercise or part of the second-sentence exercise.  There is a question as to whether the article 6(3) test can be satisfied by choosing one of a number of competing views as a matter of “appropriateness” without a reasoned explanation including an explanation as to why other views are “inappropriate”.  Appendix 3, which is referred to at page 27, is presumably meant to provide the explanation.

   [225]    The advice of the SNCBs is not binding but it is entitled to considerable weight. This is the necessary effect of the ecologically beneficent objectives of the legislation and the mandatory consultation provisions. The RSPB having been excluded from the process, the SNCBs are the only voice speaking for the birds.  I commented above that, where certain assumptions and methodologies contested by the RSPB have the expert support of the SNCBs, it may not be easy to fault the assessment; and so, by the same token and conversely, where “appropriate assessment” methodologies are not accepted or are rejected by the SNCBs, as scalar is, the question is whether the assessment is capable of overcoming the doubts expressed by the SNCBs, giving “cogent and compelling reasons”, with “complete, precise and definitive findings” using “the best scientific means” [R (on the application of Akester) v Department for the Environment, Food and Rural Affairs [2010] Env LR 33 at §§ 112, 115; Walton v Scottish Ministers 2013 SC (UKSC) 67 at § 152 per Lord Hope of Craighead; Sweetman v An Bord Pleanála (C-258/11) ECLI:EU:C:2013:220, [2014] PTSR 1092 at § 44].  Rather than removing doubt, the passages on scalar in the “appropriate assessment” introduce doubt.

   [226]    Scalar, as I understand it, subverts the “appropriate assessment’s” own rationale for threshold-setting.  This may explain why there is dissensus between the assessors as to whether or not scalar should be described as “a method for setting the threshold”. The subsequent commentary offered by MSS in these proceedings—a commentary which is not part of the “appropriate assessment” for the purpose of judicial review—may offer some insight into the calculation of scalar thresholds: but I cannot be satisfied on the material presented that it makes the method intelligible from a statistical or biological point perspective [cf. Commission v Austria (Wörschach golf course) (C-209/02), [2004] ECR I-01211at §§ 26—27].

   [227]    Scalar, if it be a method, as it claims, rather than “an evaluative judgement”, is not “the best scientific means”.  I say this drawing as well on the general teaching of the law about the recognition of methodologies which claim to be “science” [summarised in Kennedy v Cordia Services LLP (S) 2016 SLT 209 at §§ 54—56; cf. the reference to “accepted methodology” in 13/92, affidavit of J Wilson, 13, § 42].   If scalar is not “the best science” it cannot, contrary to the claim made in the “appropriate assessment”, provide “the best evidence”.  In relying on the scalar-derived thresholds MS-LOT, as an assessor, has made a mistake which flaws the “appropriate assessment”.  Whether as an assessor or as a decision-maker MS-LOT is not entitled to conclude that the forecast biological change to the Forth Islands and Fowlsheugh kittiwake populations is acceptable using scalar-derived thresholds.  On no reasonable view is MS-LOT entitled as a decision-maker to conclude beyond reasonable scientific doubt that adverse effects on the integrity of the Forth Islands and Fowlsheugh SPAs are excluded.  This by itself is a ground for deciding the proceedings in favour of the RSPB.

    

   Deterministic effects, probabilistic thresholds and reasonable doubt

   [228]    The second point of doubt is about the quantification of population scale wind farm effects as against population projections without effects.  The “appropriate assessment” concludes that no adverse effect on site “integrity” is demonstrated “on average”.  (This way of expressing matters might be enough in itself to raise reasonable doubt, given that “on average” implies the risk of above average impacts.)  The phrase “on average” refers to deterministic outputs, single, median values, although in places the terms “mean” and “median” seem to be used interchangeably [13/37, Summary of precaution included with the Assessment, II].  Averages are compared with probabilistic, as-likely-as not population thresholds.  This could be called comparing apples and pears.  Some of the potential for uncertainty is illustrated by Table 5 in the “appropriate assessment” which gives probability distributions for 25-year, end-population outcomes without, and 25-year, end-population outcomes with “maximum allowable” additional wind farm effects. The outcomes are expressed as percentages of starting populations.  The “without impacts” and “with impacts” distributions for Forth Islands kittiwake are 45%--81% and 29%--55% respectively, and for Fowlsheugh kittiwake, 12%--22% and 9%--17% respectively. The impacts are factored in as a single figure “average” value in each case, an additional, end-population, median reduction of 27% being quoted for Fowlsheugh “with impacts”.  In other words the figures in the Fowlsheugh “with impacts” range are, or are supposed to be 27% lower than the equivalent figures in the “without impacts” range “on average” [6/4, 28—29].

   [229]    If this is the average impact, then the necessary inference is that the uncertainty about adverse effects must be magnified if impacts too were to be expressed in probabilistic terms.  The RSPB maintains that “the greatest uncertainty in the assessment is around the scale of impacts”; and there is controversy both as to the methodology for computing impacts and as to whether and how uncertainty should be accounted for [Petition, §§ 26—28(d); ministers’ Answers, §§ 26—28(d); 6/63, affidavit of A McCluskie, §§ 15—29; 13/92, affidavit of J Wilson, 4—6, §§ 15—29].  The ministers’ Answers do not address head on the specific point about matching averages to distributions [minister’s Answers, 33, § 28(f)].  In these proceedings MSS responds by saying [13/80, Response to the Technical Component, § 68]:

    

   “Whilst, in principle the rationale for an acceptable change could be reasonably based on the difference between the distributions of the un-impacted and impacted populations, the techniques to do this do not exist (as discussed above in relation to CRM [collision risk modelling] and uncertainty). Additionally, there is no current agreement on which metrics would most appropriately be used to describe (and assess) the differences identified.”

    

   The riposte by the RSPB to the ministers’ Answers is: “... admitted that scientific methods do not make it feasible to fully quantify all possible sources of uncertainty around impacts, under explanation that it is therefore impossible to conclude that there will not be significant adverse impacts” [Petition, 37, § 28(f)].  This is going too far, given that it is permissible to work with probabilities and estimates; and that a precautionary and proportionate approach to making the “appropriate assessment” is agreed by the parties to be authorised where the risks are not quantifiable but the zone of guaranteed safety is understood. 

   [230]    So, MSS claims that the “appropriate assessment” assesses impacts using “deterministic [median] values in the context of a precautionary approach” or “single [median] values... using the current precautionary evidence” [13/80, Response to the Technical Component, § 45].  The precautionary component is meant to accommodate the uncertainty residing in the unknown or unexpressed range of—if apples are to be compared with apples—as-likely-as-not outcomes, as well as other unknowns.  Within the “appropriate assessment” itself there are several identified precautionary elements relevant to the Fowlsheugh kittiwake modelling, but only one, I think, which is not also part of the SNCBs’ modelling.  This is the use of undiscounted flight density estimates—ie boat-based survey estimates possibly (or possibly not) influenced by fishing-vessel-flocking behaviour—for collision impact modelling [6/4, 21, 23; cf. 13/92, affidavit of J Wilson, 4, § 19; 13/37, Summary of precaution, § VIII].  Flight density estimates are particularly relevant to the collision risk model [CRM] for kittiwake used by MSS for the “appropriate assessment”: but the chosen CRM for kittiwake is not itself said to be precautionary.

   [231]    Beyond the question of flight density estimates the only difference between the SNCBs and the “appropriate assessment” in relation to predictions of wind farm impacts on Fowlsheugh kittiwake, as far as I can make out, is the choice of CRM—basic Band model option 2 versus extended Band model option 3.  (Mr Bill Band after whom the collision risk models are named is a collision risk expert employed by SNH.)  For completeness, both the SNCBs and the “appropriate assessment” use the same 98% collision avoidance rate; both apply the same displacement/ barrier effects rate; and both use the same turbine numbers and densities [6/4, 23, Table 4 at 27, 31, 33, 81].

   [232]    The difference between the respective CRMs is that the basic Band model option 2 as used by the SNCBs assumes a uniform distribution of birds and risks through the whole height of the turbine rotor-swept area whereas the extended Band model option 3 works to produce a single-figure output from non-uniform flight-height distributions and differential risks depending on flight height within the rotor-swept area.  The Band models were originally developed for terrestrial applications.  The assumption of the extended Band model is that sea bird flight distribution is skewed towards lower flight heights including sea-skimming flight below the rotor swept area.  In May 2014 Mr Band described the basic model as “seriously inaccurate for birds such as sea birds with a strong non-uniform flight density” [13/6, A Note on the Use of the Extended and Basic Models, ** May 2014; 6/4, 19—20].

   [233]    Collision risk model outputs are sensitive to assumptions made about “avoidance rates”.  The various Band models—basic model option 1, basic model option 2, extended model option 3 and extended model option 4—have associated recommendations as to “avoidance rates”.  Avoidance rates are specific to the risk model and species with which they are associated.  As I understand the affidavit evidence of  Dr McCluskie, who has been a member of the project steering group for the avoidance rate review commissioned by MSS from the British Trust for Ornithology [BTO], read with the evidence of Dr Jared Wilson PhD, avoidance rates aim to reflect avoidance behaviour but are also used to express the inconsistency arising from a variety of sources, including model and observer error, between predicted and actual mortalities [6/63, affidavit of A McCluskie, §§ 22, 23, 27, 28; 13/92, affidavit of J Wilson, 5, § 23; 13/17, The Avoidance Rates of Collision Between Birds and Offshore Turbine, BTO Research Report No 656 (The Scottish Government, Aberdeen, 2014)].

   [234]    The collision rate is in inverse proportion to the so-called avoidance rate. Thus, an avoidance rate of 98% means that 2 out of 100 birds at risk notionally collide, 95% means 5 out of 100 birds collide, and so on.  In the draft BTO report of 16 June 2014, current at the date when the “appropriate assessment” was in preparation, the recommendation was for a 90.27% avoidance rate—the “small gulls” rate—to be used for kittiwake with the extended Band model option 3.  I accept that this was known to MS-LOT and MSS.  (This “small gulls” avoidance rate represents almost double the mortality of the 95% avoidance rate presented as “precautionary” in the “appropriate assessment” and almost five times the 98% avoidance rate mortality.)  At the Forth and Tay Ornithology Escalation Meeting on 27 June 2014 the SNCBs registered their continuing disagreement with the use by MSS of extended Band model option 3 [6/63, affidavit of A McCluskie, §§ 29, 56—58; 6/71, Minute of Forth and Tay Escalation Meeting, 27 June 2014; 6/92, affidavit of J Wilson, 8, § 57].

   [235]    The essential problem with the extended Band model option 3 was recognised by Mr Band and explained by him in a note for the steering group dated 14 July 2014 which addressed the issue of the difference between the small gull avoidance rate for the extended model, 90.27%, and the then-proposed rate for the basic model, 99.21%, in the following terms:

    

   “Clearly with this level of disparity [between small gulls data based on site survey observations and small gulls data using generic flight height distribution, tabulated in the note], the observed flight height distribution at these [survey] sites must be very different from the generic FHD [flight height distribution]… What this means—if the observed values of [proportion of flights at collision risk height] represent valid survey records on flight height—is that the actual flight height distribution, far from being skewed towards heights below minimum rotor height, must actually peak within the range of rotor heights… This is so different from an assumption of FHD skewed towards low altitude that any analysis based on the latter must be deemed invalid.”

    

    

   Mr Band identified a similar issue to different degrees for herring gulls and large gulls [13/18, Avoidance rates report, 4 July 2014].  Extended Band model option 3 is based on the “invalid” assumption just mentioned.  All this was known to MS-LOT and MSS as the “appropriate assessment” was in preparation.  Given this context, the issue about fishing-vessel-flocking behaviour is irrelevant.

   [236]    Peer review comments on the draft BTO report were sought and then addressed.  The final draft BTO report was submitted to the project steering group on 24 September 2014.  Thereafter comments were offered by a number of stakeholders including MSS. The BTO report was published in December 2014.  According to the report, kittiwake are a species vulnerable to collision risk.  In the absence of consistent evidence the report is unable to recommend an avoidance rate for gannet and kittiwake for use with the extended Band model option 3.  This is said not imply that extended Band model option 3 will be unsuitable if avoidance rates can be derived; and it is said not to preclude using extended Band model option 3 collision estimates with or without other measures of avoidance to “inform on collision risk”[6/63, affidavit of A McCluskie, comments on Response to the Technical Component, §§ 18—25; 13/17, The Avoidance Rates of Collision Between Birds and Offshore Turbine, BTO Research Report No 656 (The Scottish Government, Aberdeen, 2014), Executive Summary, § 8, Recommendations, 5, §§  5.1.4, 7.5, 9].

   [237]    In response to the BTO review the categorical advice of the SNCBs is now that [emphasis as original]:  “It is not appropriate to use the Extended Band model in predicting collisions for northern gannet or black-legged kittiwake, at the current time.”  I deduce that Mr Band has been involved in drafting this advice.  The particular reason for the advice is that in the absence of gannet- and kittiwake-specific data the BTO review makes no recommendation regarding avoidance rates for gannet and kittiwake.  The SNCBs also have a general reservation about the sensitivity of the extended Band models to paucity, variance and error in flight distribution data.  In situations where extended Band model option 3 can be used, the SNCBs advise that comparative material should be presented with upper and lower confidence limits and the range of uncertainty [13/15, Joint Response from the Statutory Nature Conservation Bodies to the Marine Scotland Science Avoidance Rate Review, 25 November 2014, 4—5; 6/63, affidavit of A McCluskie, §§16, 17, 20, 28, 57 and comments on Response to the Technical Component, § 18; 13/80, Response to Technical Component, §§ 18, 26; 6/71, Minute of Forth and Tay Escalation Meeting, 27 June 2014; 13/92, affidavit of J Wilson, 12, § 40 and elsewhere].

   [238]    I accept the evidence presented by the RSPB that the “appropriate assessment’s” application of extended Band model option 3 is methodologically flawed.  Contrary to advice it uses generic flight height distribution data rather than site-specific data, and does so without comparing all data sets to ascertain the reason for any discrepancies.  Marine Scotland Science has wrongly claimed that comparisons cannot be done.  (The site-specific data were presented by the developers; and comparisons were made by the developers for Seagreen Alpha and Seagreen Bravo.)  The evidence now offered by the RSPB does apparently demonstrate that the flaw causes the “appropriate assessment” to be less “precautionary” for kittiwake, although I make no finding about this complex matter  [6/4, 20; 6/63, affidavit of A McCluskie, §§ 6—29, 51—63 and comments on Response to the Technical Component, §§ 1—12; 6/73, Note on Generic and Site-specific Flight Height Comparison, Table; 13/80, Response to Technical Component, §§ 3—6; 13/85 memory stick, Seagreen environmental statement, § 10.205—I have not been provided with Appendix F1; 6/36/9, addendum to Seagreen environmental statement, Part 2, § 2.89, etc; 13/92, affidavit of J Wilson, 8, §§ 53—55].

   [239]    The fundamental question is whether making use of the extended Band model option 3 as the determining method, in particular for the kittiwake assessments, in the recommended way or otherwise, is warranted.  There are several difficulties with the ministers’ position.  The first difficulty is one of inherent implausibility.  If the median values generated by extended Band model option 3 are precautionary or are used “in the context of a precautionary approach”, why is it that there is no overlap, no approximation, and that the “appropriate assessment” differs from the advice given by the SNCBs as to adverse impacts on the kittiwake SPAs? No explanation is given.  Secondly, a transparent “appropriate assessment” would present the points at which the two approaches diverge, would quantify and explain the difference and would justify any preferred approach.  The “appropriate assessment” does not do this.

   [240]    The only justification offered for using extended Band model option 3, and for using it with improvised or default avoidance rates, is: “MSS advised that Option 3 provides the most realistic evidence base for use in this AA [appropriate assessment].”  This is substantially the same as the explanation for using scalar, but without the supporting appendix.  It is an oddity that one of the assessors, MSS in the person of Finlay Bennet, who signed the assessment, should refer to advice from MSS, likely to have been provided by Mr Bennet himself, given Mr Bennet’s responsibilities, as if it came from an authoritative third party source.  Last, the substantive difficulty is that Mr Band of SNH, originator of extended Band model option 3, advised against using the model; this position was maintained by the SNCBs at the “escalation” meeting; and the advice has since been “officially” confirmed by the SNCBs for kittiwake collision modelling. Mr Band’s advice must have been known to both assessors, MS-LOT and MSS, while the “appropriate assessment” was being prepared.

   [241]    The advice since given in the BTO report is that extended Band model option 3, with or without non-recommended avoidance rates, can be used to “inform on collision risk”: but this is not how extended Band model option 3 is used in the “appropriate assessment”.  The explanations given by MSS in these proceedings—which are not part of the “appropriate assessment”—are superficially plausible but ultimately, I have to say, in places obfuscatory and overall unpersuasive. I reject them [13/80, Response to the Technical Component, §§ 1—46].

   [242]    However it is fair to note from these explanations that there has been some convergence since the “appropriate assessment” was signed off and the development consents issued.  The BTO report recommends a kittiwake avoidance rate of 99.2% for use with basic Band model option 2.  This would reduce the kittiwake collision impacts modelled by the SNCBs by more than half.  The SNCBs own recommendation is now for a kittiwake avoidance rate of 98.9% for use with basic Band model option 2.  On that basis, the total number of kittiwake collisions is, according to MSS, “2% greater than the value estimated in the Assessment assuming a 95% Avoidance Rate with the Extended version of the model”.  This is ambiguous.  I think it means that for every 100 kittiwake collisions forecast by MSS using a 95% avoidance rate the SNCBs would now forecast 102 kittiwake collisions.  (I could be wrong, but if I am right the comparison confirms that, all other things being equal, the MSS Fowlsheugh kittiwake collision mortality outputs with option 3 are several times less than with the SNCBs’ option 2 outputs.)  [13/80, Response to the Technical Component, §§ 36—37; cf. 13/92, affidavit of J Wilson, 11, §§ 29—32].

   [243]    It is troubling that the “appropriate assessment” fails to mention the evolution of thinking about extended Band model option 3; and that the “appropriate assessment” adheres to option 3 with no explanation for rejecting the advice of Mr Band and the SNCBs given before the “appropriate assessment” was finalised.  It may be true, as Dr Wilson states in his affidavit, that the published guidance of the SNCBs did not change until November 2014, but that is far from being the whole story [13/92, 5, § 24—25].  I find it especially troubling that the ministerial brief dated 19 August 2014 refers to Mr Band’s advice of May 2014 but not to his advice of June 2014 [6/70, 5—6].  This is not using “the best scientific knowledge in the field”, certainly not demonstrably using the best scientific knowledge. A relevant matter has been omitted and the factual account as presented is incomplete and unsound. The “appropriate assessment” is flawed as a basis for considering the development authorisations.  Separately, on any reasonable understanding of the limited information given in the “appropriate assessment” it is not possible to accept that the precaution claimed to be incorporated is sufficient to account for the admitted uncertainty as to the magnitude of impacts.  In my opinion MS-LOT is not entitled as a decision-maker to conclude beyond reasonable scientific doubt that adverse effects on the integrity of the Fowlsheugh SPA are excluded.  This by itself is a ground for deciding the proceedings against the ministers and the interested parties in the various proceedings.

   [244]    Although the SNCBs apparently endorse the use of thresholds for assessing development impacts, they also advise that precaution should be used where estimated effects approach thresholds.  The view of MSS is that the thresholds are definitive rather than indicative: “it is appropriate to conclude no adverse effect on site integrity as long as the threshold is not exceeded” [6/71, Minute of Forth and Tay Escalation Meeting, 27 June 2014].  The MSS position would be entirely reasonable, if thresholds could be accurately and reliably determined, if there were certainty about the magnitude of wind farm effects, and if measuring effects against thresholds were determinative of the statutory question about the impact on site integrity.  The argument for allowing a margin of precaution, as the SNCBs do, can be understood by looking again at the MSS impact modelling.

   [245]    The “appropriate assessment” uses extended Band model option 3 with a 98% avoidance rate to demonstrate that impacts do not cross the thresholds of acceptable change. The “appropriate assessment” also presents the results of impact modelling using extended Band model option 3 with a 95% avoidance rate.  This is said to add “additional precaution” to the kittiwake assessments, the reason being that the 95% avoidance rate represents 2.5 times the collision mortality of the 98% rate [6/4, 21, 32, Table 6].  As has been seen, the conclusion that “no adverse effect to the kittiwake colonies is demonstrated” applying the “precautionary” 95% avoidance rate apparently depends on using ABC rather than ruABC to derive the Forth Islands thresholds and on adjusting the thresholds derived by ABC (Forth Islands) and ruABC (Fowlsheugh) by “extended interpolation” or scalar.

    

   Non-breeding impacts and reasonable doubt

   [246]    The third area of possible doubt arises from the fact that the “appropriate assessment” leaves non-breeding impacts completely out of account.  There are no data about non-breeding impacts in the appropriate assessment.    There is no explanation as to why non-breeding impacts are left out of account.  There is no mention that the SNCBs’ view on this point diverges.  No reasons are given for rejecting the view of the SNCBs.  It is troubling that the briefing paper for the minister dated 29 August 2014 does not highlight this divergence of views.

   [247]    In Tables 1, 2 and 3 the briefing paper presents “worst case scenario” figures, which means using a 95% avoidance rate for collision modelling.  The gannet figures are as follows: estimated adult mortality during the annual breeding season from displacement and barrier effects, 37 individuals; estimated adult collision mortality during the annual breeding season, 1,132 individuals; estimated annual adult collision mortality only during the non-breeding season, 161 individuals. The total of these figures is 1,330, a figure which exceeds by 30 the given threshold of acceptable annual mortality from wind farm effects, the threshold being 1,300.  The equivalent totals for kittiwake, four SPAs including Buchan Ness and St Abbs to Fast Castle, give a total additional annual mortality of 1,301 which falls short of the threshold by 57, the threshold being 1,358.  The inclusion of the figures for the more remote and much less affected sites at Buchan Ness and St Abbs dilutes, or masks the significance of, the Forth Islands and Fowlsheugh figures to an undisclosed extent; and, it may be recalled, the kittiwake modelling, both collision impacts and thresholds, is contested [6/4, Appendix 7, Table B; 6/69, Advice to Ministers, Tables 1, 2 and 3; 6/70, Summary of approaches, Tables A, B and C].

   [248]    It is not for the Court to evaluate the figures. However I am persuaded that non-breeding effects should not be omitted from the “appropriate assessment”; and that a judgement should be made as to whether non-breeding effects, weighed with other relevant considerations, raise doubt about the absence of adverse impacts on site integrity. The omission from the “appropriate assessment” is a “lacuna” of the kind referred to in Sweetman, a material omission which justifies deciding the matter against the ministers and the interested party, Inch Cape [Sweetman v An Bord Pleanála (C-258/11) ECLI:EU:C:2013:220, [2014] PTSR 1092 at § 44].

    

   End population effects and reasonable doubt

   [249]    The “appropriate assessment” tends to express impacts in terms of annual percentage effects: but clearly reductions of 1% or 2% cumulated over the estimated project lifetimes of 25 years might give a different impression. A fourth area of possible doubt resides in the figures, some of which have been mentioned, for 25-year, end-population outcomes. 

   [250]    There is possibly a lack of clarity about the significance of long-term or cumulative effects.  This is because of the double meaning of the word “cumulative”.  The EIA Directive 2011/92/EU refers to “cumulative effects” in two senses, meaning both the combined impact of multiple effects at any given time and the incremental impact of the same effect or effects over time [Annex III, 1(b) and 3(g), Annex IV, 5(e); Annex IV, 5(g)].  The Habitats Directive 92/43/EEC does not refer to “cumulative effects”: it refers in article 6(3) to the effect of a plan or project “either individually or in combination with other plans and projects”, hence the expression “in-combination effects”.  Notwithstanding that the legislation offers this dedicated and easy-to-use terminology, the “appropriate assessment” instead uses the word “cumulative” 33 times, exclusively to refer to “combined” or “in-combination” effects.  The MSS document “Summary of precaution within the Assessment”—which is not part of the “appropriate assessment”—recognises the other meaning of “cumulative” [13/37, § VI]. The guidance is reasonably clear that the “appropriate assessment” has to assess both kinds of “cumulative” effects [EU Commission Guidance Document, Wind Energy Developments and Natura 2000 (Luxembourg, 2011), 36, “Barrier effect”; § 3.2]. This is what you would expect. The jurisprudence confirms that an “appropriate assessment” must “compare all adverse effects arising from the plan or project with the site’s conservation objectives” [my emphasis, Waddenzee at §§ AG97, AG111]. I take this to mean that the Forth & Tay “appropriate assessment” must, as a matter of legal obligation, compare cumulative, project-lifetime effects with the conservation objectives of the SPAs,

   [251]    The Inch Cape “appropriate assessment” has one clear example of the assessment of cumulative, project-lifetime effects.  The assessment in question is for bottlenose dolphin, the conclusion being: “... there should be no significant long-term effect on the population over the modelled period of 25 years” which, on the figures given, appears to be an entirely reasonable view [6/4, 49—50; 13/80, § 53].  There is no equivalent of the “no significant long-term effect” judgement in the ornithological component of the Inch Cape “appropriate assessment” for any of the SPA avian species populations, notwithstanding that assessments (and the derivations of thresholds) are said to be “based upon a 25-year period of effect” [6/4, 24--25].

   [252]    The “appropriate assessment” does however “present” figures for project-lifetime “estimated effects” on bird populations as so-called “counterfactuals” of end-population size. “Counterfactual of population size” or CPS is an expression of comparative median outcomes at a future date, the relevant date in this case being 25 years hence, arrived at by dividing “the expected population size after 25 years of operation of the wind turbines… by the expected population size at that time in the absence of turbines” [6/17, Misleading use of science, 29].  “Expected” population sizes are taken from PVA outputs and the outputs of the collision and other impact risk modelling discussed above.  The CPS values can be presented either as notional reductions in the baseline populations or as the correlative proportion of the populations remaining.

   [253]    In this case the ratios are expressed as single value decimals or percentages: for example a notional reduction of 0.25 or 25% is the equivalent of a remainder of 0.75 or 75%.  I say “notional” population reductions because CPS expresses the wind farm effects in isolation from the forecast population trajectories, trajectories which may predict stable, declining or increasing populations.  If the object is the conservation of populations it is arguable that comparative reductions on top of “natural” population decreases are of greater concern than reductions on top of population increases.  The kittiwake populations are forecast to decline “naturally”, with no indication of benefit from a recovery period after wind farm effects cease [cf. 13/37 Summary of precaution included within the Assessment, § VI].  The evidence presented by the ministers implies that it is undesirable to “allow” the same level of reduction for declining populations [13/92, affidavit of J Wilson, 7, § 92; also 13/80, Response to the Technical Component, §§ 92, 100]. It is important to understand that CPS values are not simply the product of compounding annual attrition rates over the 25-year lifetime of the projects. For example, for Forth Islands kittiwake, the “appropriate assessment” presents a maximum allowable annual additional adult mortality figure of 2.4% and an estimated annual additional mortality figure of 1.8%. The equivalent maximum allowable end population counterfactual is given as 31% and the equivalent estimated effects end population counterfactual is given as 24% [6/4, 29, Table 5 and Appendix 7, Table A]. The respective 25-year compounded figures are, 2.4% annually compounded, a notional end-population reduction of 46% and, 1.8% annually compounded, a notional end-population reduction of 27%.  

   [254]    The RSPB’s preferred metric is CPS, using a number of different collision, displacement and barrier effects models to yield a plausible range of population reductions as a basis for the Habitats Directive 92/43/EEC article 6(3) second-sentence judgement [6/17, Misleading use of science, 5].  For illustrative purposes Professor Green of the RSPB presents 25-year CPS values for kittiwake and gannet using the then-available MSS adult, breeding-season, collision mortality figures, comparing outputs for Band model options 2 and 3, both with a 98% avoidance rate, and using the SNCBs’ population figures as at March 2014.  The 25-year CPS value for Forth Islands kittiwake presents as a 19.0% reduction, using option 2, and a 3.6% reduction, using option 3; the Fowlsheugh kittiwake figures are a 36.4% reduction, using option 2, and 7.4% reduction, using option 3; and the Forth Islands gannet figures are a 20.4% reduction, using option 2, and a 23.3% reduction, using option 3. These illustrative CPS values do not include displacement and barrier effects and they do not include or allow for non-breeding impacts [6/17, Misleading use of science, 21—22 and Table C3].

   [255]    As well as presenting 25-year CPS values for estimated effects, the “appropriate assessment” expresses annual “maximum allowable reductions” or annual “maximum allowable effects” as 25-year CPS values. Taking the lead from Dr Wilson’s affidavit evidence and for ease of understanding I am going to describe these values as “CPS thresholds”, although this is not, apparently, what MSS, officially-speaking, would wish them to be called [6/4, Table 4, 28—29, Table 5; 13/92, affidavit of J Wilson, § 93].  So, if I understand the “appropriate assessment” correctly, the 25-year adult mortality CPS thresholds are: for Forth Islands kittiwake, 31%; for Fowlsheugh kittiwake, 21%; for Forth Islands gannet, 21%; for Forth Islands puffin, 25%.  These values are based on the scalar-adjusted annual thresholds [6/4, Table 4, columns five and six and * note; Table 5, columns three and six].  The 25-year estimated effects CPS values, added later as another appendix to the “appropriate assessment”, are: for Forth Islands kittiwake, 24%; for Fowlsheugh kittiwake, 19%; for Forth Islands gannet, 21%; for Forth Islands puffin, 25%.  The dominant effect on Fowlsheugh kittiwake and Forth Islands gannet is said to be collisions.  For these two populations it is stated that: “the number of collisions have [sic] been estimated in a highly precautionary manner due to the use of a low avoidance rate of 95% with the extended version of the band [sic] model.” None of the CPS values includes or allows for non-breeding impacts [6/4, 27, Table 4; 29, Table 5; cf. 35 (gannet); 39 (puffin); Appendix 7, Table A].

   [256]    While the “appropriate assessment” as issued presents the CPS values specified above (based on MSS impacts modelling), it does so with limited commentary [6/4, 70]:

    

   “MSS are aware of the ratio of the population size at the end of the wind farm to the population at the end of the same period in the absence of a wind farm (as used by the RSPB in the examination of the Hornsea 1 project). This metric adds to the range of other metrics available for potential use in setting a threshold or determining whether an estimated effect is acceptable or not. MSS note that whilst this counterfactual provides a descriptive metric, it is not of itself a method of determining whether a predicted level of effect is acceptable. MSS recognise that many metrics may have merits, however question [sic] the idea that the relative size at end of forecast period is necessarily the most useful. The metric lacks the context provided by those that use changes in probability, and there is no clear approach for the interpretation or use of counterfactual…

    

   … MSS acknowledge that allowing for a specific level of change is ultimately a societal choice that is heuristic. This is no different to many other choices that the Birds and Habitats Directives require: such as those that inform the designation of protected area boundaries. MSS note that RSPB have expressed a preference for using the ratio of end population size (counterfactuals) and these figures have been presented in this AA. MSS are not aware of a method for translating this metric into an acceptable level of effect that would avoid being arbitrary.

    

   […]

    

   A fundamental issue associated with RSPB Scotland’s recommended metric of counterfactual of end populations [in relation to Forth Islands gannet] is that there are no recommendations, from any organisation on what or how a threshold should be established using the metric. The metric has however been presented for information in this AA.”

    

    

   Neither the “appropriate assessment” nor the development authorisations offer a reasoned judgement as to whether the MSS 25-year CPS values are consistent with the maintenance of site integrity, applying the precautionary principle.

   [257]    The explanation now given by MSS wrongly assumes that the issue is whether CPS should be the sole metric [13/80, Response to the Technical Component, §§ 91—103].  I accept that CPS values should not, on the information available in this case, be the sole measure of wind farm effects.  However, I am satisfied that end-population values are a relevant measure.  That being so, consideration of CPS values should not be omitted when making the judgement which requires to be made in terms of the second sentence of the Habitats Directive 92/43/EEC article 6(3) as to whether the calculated CPS values, weighed with other relevant material on project effects, raise doubt about the absence of adverse impacts on site integrity.  In this respect the ministers have failed to have regard to a material consideration and their “appropriate assessment” or their project authorisations—wherever they mean to locate the article 6(3) second-sentence decision—is or are flawed.

   [258]    For completeness, the explanation given by MSS in these proceedings—an explanation which is not part of the “appropriate assessment—is that [13/80, Response to the Technical Component, § 99]:

    

   “The CPS values quoted are the magnitude of the estimated effects. In all cases, the estimated effects were less than the thresholds of acceptable change; otherwise the effects would not have been acceptable.”

    

    The reference to “quoted” values is a reference to the MSS CPS values quoted in the RSPB’s Petition, article 31, which values are in turn taken from Table A, Appendix 7, of the “appropriate assessment” and are the same as, or include, the values given above, namely: Forth Islands kittiwake, 24%; Fowlsheugh kittiwake, 19%; Forth Islands gannet, 21%; Forth Islands puffin, 25%.  The explanation given in the just-quoted passage is that these “are the magnitude of estimated effects” and that “estimated effects were less than the thresholds” [my emphasis].  I take this to mean that the estimated annual wind farm effects considered earlier in the “appropriate assessment” were less than the annual adult mortality thresholds so that the estimated effects over the 25-year lifetime of the projects described in Appendix 7 are therefore, by inference, less than the cumulative thresholds at the end of the 25-year lifetime of the projects.

   [259]    This may seem logical. It would be logical if the CPS values represented a 25-year compounding of the annual percentage attrition rates: but that is not how CPS values are calculated [6/17, Misleading use of science, “Method”, 21—22]; and the repeated plaint of MS and MSS is that CPS does not offer a quantitative method—and therefore does not offer any method—of assessing the “acceptability” of project-lifetime wind farm effects [eg 13/80, Response to the Technical Component, § 97; paragraph 256 above]. The CPS thresholds given in Table 5 of the “appropriate assessment” contradict the idea that the CPS values given in Table A, Appendix 7, are “acceptable”.  No alternative figures are quoted by MSS. This corroborates what is otherwise apparent, namely that while the “appropriate assessment” presents CPS values “for information”, its conclusions are arrived at, unlawfully in my opinion, quite independently of, and without having regard to these values or to any other measure of cumulative or project-lifetime effects.  It would be important to know, where development consent is granted or refused taking project-lifetime effects into consideration, and where a comparative judgement bears to be made, what level of project-lifetime effects is deemed to be acceptable, irrespective of whether the limits be matters of qualitative judgement or matters of “science”, expressed quantitatively [cf. 13/92, affidavit of J Wilson, 15, § 72].

   [260]    The case advanced by the RSPB in article 31 of the Petition is that it is “perverse” to find no adverse effect on the integrity of the SPAs in the light of the CPS values given in Appendix 7 of the “appropriate assessment” having regard to terms of the cabinet secretary’s letter of 10 October 2014.  The letter endorses CPS as a metric [6/22].  I have two reservations about this way of putting the claim.  Not invariably, perhaps, but generally, as I understand it, “perversity” refers to an internal contradiction in the reasoning of the decision whereas the cabinet secretary’s letter is not part of the “appropriate assessment” or of the development authorisations.  Secondly, a finding of “perversity” would involve making an evaluative judgement about the significance of the CPS values.  I am not convinced that the Court is in a position to do this.  However, I have no difficulty in concluding that the CPS values constitute a material factor which the ministers’ own evaluation was bound to consider.  

    

   Site integrity and reasonable doubt       

   [261]    The Marine Scotland Science Advisory Board [MSSAB] was requested to review Professor Rhys Green’s methodological critique. This is the critique presented in the paper Misleading use of science in the assessment of probable effects of offshore wind projects on populations of seabirds in Scotland, discussed below. The minute of the resultant teleconference on 29 September 2014 states: “The science used in the assessment was the best available at the time.” I take this to be a reference to a draft of the “appropriate assessment” or of a part of the “appropriate assessment” in draft, whether with or without the late-added Appendix 7 is unspecified.  However, Professor Green’s critique does not address the issue of scalar, or the issues of selective use of ruABC, the use of extended Band model option 3 for collision risk modelling, the “uncertainty gap” in the modelling of collision risks and the exclusion from consideration of non-breeding impacts.  The minute of 29 September 2014 does not demonstrate endorsement of the approach of MS-LOT and MSS in relation to those matters [cf. 6/4 at 45 where it is said only that the MSSAB “has reviewed the ABC method”]. The minute does not support the view that the science used in relation to these other matters was “the best available at the time” or, indeed, that it was “science”.  Insofar as the MSSAB endorses the absence of an assessment of cumulative, end-population effects for avian species, the MSSAB is in error. This is a matter of law. (Professor Paul Thompson, one of the three members of the advisory board, undertook some of the modelling of population scale effects in relation to bottlenose dolphin, and advised on 25-year cumulative effects, as referred to above.)

   [262]    The “appropriate assessment” appears to have set itself the task of developing a method or combination of methods capable of answering the site integrity question quantitatively and “scientifically” in a way that dispenses with the need to make judgements in terms of the second sentence of article 6(3) of the Habitats Directive 92/43/EEC.  This leads to the situation where metrics which do not provide quantitative answers to the question of “acceptability” are disregarded, as with CPS.  The refrain in the evidence and submissions presented for the ministers is that CPS cannot provide a means of determining whether an estimated effect is acceptable [eg, 13/80, Response to the Technical Component, § 91; 13/92, affidavit of J Wilson, § 50].  I take the view that an article 6(3) process which refuses to engage with, and to make an appropriately precautionary judgement on the acceptability of, end-population effects cannot claim to offer the requisite certainty as to the absence of adverse effects on the integrity of protected sites. In my opinion MS-LOT is not entitled to conclude on the basis of the “appropriate assessment” dated 7 October 2014 that the Inch Cape project in combination with the other Forth and Tay wind farm projects will not adversely affect the site integrity of the Fowlsheugh and Forth Islands SPAs with respect to kittiwake, gannet and puffins.  If the “appropriate assessment” is flawed, the development consents in terms of the Electricity Act 1989 and the Marine (Scotland) Act 2010 are also flawed.

    

   Ground B.1: re-making the “appropriate assessment”

   [263]    I have to address the question whether the “appropriate assessment” might, not inconceivably, be different if re-made. The affidavit evidence presented for the ministers contends in terms, generally and in relation to specific matters, that the points now made by the RSPB would have made no difference to the “appropriate assessment” [13/91, affidavit of J Wilson, 7, § 46, 8, § 51; 13/93, affidavit of F Bennet, §§ 7, 10—17, 20, 24].  I treat this evidence as going also to the question whether the “appropriate assessment” would be different if it were to be remade now. This bears primarily on the issue of the proportionality or otherwise of setting the development authorisations aside.

    

   CPS “would have made no difference”

   [264]    The general contentions made in the affidavits about “no difference” are, in and of themselves, simple assertions [cf. Smyth (above) at § 83].  The specific contentions are mostly directed at one issue, namely the RSPB evidence about CPS, and the RSPB pleadings and evidence about the treatment in the “appropriate assessment” of the CPS values for kittiwake, gannet, puffin, guillemot, razorbill SPA populations [6/37, affidavit of C Nathan, §§ 17—22; 23—24; 25—27; 28—32; 33—36].  In relation to kittiwake the ministers’ witness Finlay Bennet depones [§ 10]:

    

   “All the information provided in paragraphs 17 to 22 of [RSPB witness] Mr Nathan’s affidavit was already known and understood, and would have made no difference to either the content or conclusions of the Appropriate Assessment. For example CPS metrics are presented on page 29 and Appendix 7 of the Appropriate Assessment.”

    

    

   In relation to the CPS for all species Mr Bennet testifies that “the information would have made no difference to either the content or conclusions of the Appropriate Assessment” [13/93, affidavit of F Bennet, §§ 10—17].

   [265]    Mr Bennet’s evidence about the content of the “appropriate assessment” is verifiably correct to the extent that the information contained in Mr Nathan’s affidavit is taken from the “appropriate assessment”: but Mr Nathan’s affidavit also contains commentary on the use made—or perhaps the use not made—of the CPS data in the “appropriate assessment”, which, in terms of the RSPB’s submissions, is a crucial aspect.  In order to understand the issues it is helpful to go back over the history of how CPS entered the debate, how representations about CPS were received by the ministers and their advisers and how CPS is treated in the “appropriate assessment”.

    

   RSPB representations about CPS and how they were received

   [266]    My understanding of how CPS entered the debate about the applications is as follows. The RSPB’s consultation response of 26 March 2014 stated that “a combination of models, effectively with and without the proposed wind farms, is necessary to permit comparison of the resulting difference in population size or trend.” There was also reference to species population “baselines”, meaning, as I understand it, the “without effect” bases of comparison.  It was said that: “This comparison of population trajectories with and without the proposal being considered is essential for a comprehensive HRA [Habitats Regulations Appraisal]” [6/14, letter of 26 March 2014, 4, § 1.3 “Population Viability Analysis”, 6, “Potential Biological Removal”]. The RSPB sent a two-page paper to MS, dated 1 May 2014, commenting on the MacArthur Green Bass Rock Gannet PVA [population viability analysis] [6/14, RSPB comments, 1 May 2014].  The paper states one reservation—from the RSPB perspective an important reservation—about the MacArthur Green PVA, namely that the PVA does not offer a comparison of the population not subject to wind farm effects with the population subject to effects at the end of the 25-year project lifetime. This RSPB paper contains the earliest reference that I have seen to “CPS”, using that acronym, in connection with the Forth and Tay processes:

    

   “The most appropriate measure of the population impact of the Forth & Tay projects is the expected effect of the additional mortality at the end of the lifetime of the proposed wind turbine arrays, expected to be 25 years, expressed as a ratio of the expected SPA population size with the additional mortality to the expected population size without it. This is the counterfactual of population size, hereafter denoted as CPS₂₅...”

    

   The suffix “25” is generally omitted in the later documentation exhibited to me. The comments of 1 May 2014 end with recommendations for testing Bass Rock gannet counterfactuals.

   [267]    By letter dated 12 May 2014 the director of RSPB Scotland, Stuart Housden, wrote to John Swinney MSP, the cabinet secretary for sustainable development etc, expressing “extreme concern” at the ministers’ consenting of the Moray Firth offshore wind farm projects, Beatrice and Moray, and stating: “Current proposals for the Forth and Tay raise even greater concerns” [6/15].  The letter refers to “unsubstantiated methods” and “tools” that are “not suitably precautionary”.  The enclosed technical annex sets out the RSPB’s criticisms of the collision risk modelling [CRM] approach and impact-on-population assessment methods [ABC, PBR] understood to be used by MSS at that stage. The annex refers to the RSPB’s “representations to the Hornsea 1 development”, using “the counterfactual of population size” and expresses the RSPB’s willingness to discuss further with MSS—the reference is to the representations for the RSPB in relation to the planning application for the Hornsea Project One Offshore Wind Farm (Zone 4) located 103km off the Yorkshire Coast, February 2014.

   [268]    By letter to the RSPB dated 1 August 2014, MS stated that MS-LOT considered that “a detailed and robust appropriate assessment” had already been completed in accordance with legal requirements [6/16].  The annex enclosed with the letter includes, as I read it, a rejection of the RSPB comments of 1 May 2014 in relation to enhancement of the assessment for gannet at the Bass Rock and of CPS in general:

    

   “The RSPB recommend using the ‘counterfactual of population size’ or CPS, or in other words: the end ratio of population size...

               The draft AA is based on the probability that the final population will be smaller than the starting population, with the threshold being that there should be no more than a 5% probability that the final population is smaller than the starting population. This was advised by the SNCBs and also MSS. This metric is routinely used in assessments where populations are forecast to increase.

               The fundamental issue associated with RSPB’s recommended metric of counterfactual of end populations is that there are no recommendations from any organisation on what or how a threshold should be established using the metric. This renders advocacy in favour of the metric immaterial from the perspective of undertaking an Appropriate Assessment.

               ... the recommendations made by RSPB regarding presentations of baselines and testing of sensitivity have not been undertaken...”

    

   By this time, as we now know, the “appropriate assessment” was in its intended final form. By email also dated 1 August 2014, MS-LOT told the RSPB that “... it is too late to consider any additional or new information at this time” [6/54].

   [269]    Professor Green’s critique Misleading use of science (above) was sent to MS by the RSPB under cover of a letter dated 14 August 2014 [6/17].  Professor Green’s paper criticises the concept of, and the quest for biologically acceptable rates of attrition for species populations which have statutory protection. The paper proposes that:

    

   “... the experts should focus on making robust estimates of impacts upon population size and decision-makers should be accountable for considering whether they are properly discharging their duties under the law if they give consent to a project which is expected to cause a specified amount of damage to the protected site and its species.”

    

    

   The paper offers detailed criticism of ABC [acceptable biological change] and PBR [potential biological removal] as metrics for establishing maximum allowable rates of attrition and in particular as methods of fixing acceptable thresholds expressed as additional mortality in annual percentage terms.  Professor Green’s paper proposes as the most relevant assessment method the so-called “counterfactual of population size” or CPS.  Unlike the paper of 1 May 2014, Professor Green’s critique did make an impression on the ministers’ advisers. The ministerial briefing paper dated 19 August 2014 describes the difference between the MSS approach and the CPS approach favoured by the RSPB and offers a justification of the newly-defined MSS position: “[T]aking into consideration a range of different approaches (ABC, PBR, counterfactuals) in the provision of advice is a valid and robust approach”, thereby implying that MSS had “taken into consideration” the “counterfactuals” [6/70].

   [270]    The cabinet secretary’s letter to the RSPB dated 10 October 2014 states [6/22]:

    

   “The Counterfactual of Population Size (CPS) advocated by the RSPB is one of a range of useful metrics that can be used to describe a predicted effect and has been used by MSS in this capacity. However, the RSPB do not provide any mechanism by which the CPS could be used to establish a threshold or indeed to indicate whether the predictable effect would be acceptable or not. It is therefore unclear how the CPS provides the way forward as stated by the RSPB.”

    

    

   These words are lifted from the MSS technical appendix. The appendix also states [pages 6 and 13]:

    

   “Regardless of whether ABC or ruABC have been used, a range of other information has been considered when reviewing the thresholds obtained. These include the current status of the population, the forecast trajectory both with and without predicted wind farm effects, the population model used, and the CPS. The CPS is the most robust metric for presentation of results, and also precautionary in relation to density dependent effects which have not been modelled.

    

   [...]

    

   It is argued [by the RSPB] that an attribute of CPS is that when applied to density independent models it is precautionary as the impact of the predicted effect upon the end population ignores the ameliorating action of density dependence i.e. adult survival or productivity rates would be expected to increase once the population is below a particular level due to a reduction in competition for resources e.g. food or nest sites. This attribute provides a good reason for presenting the results of ABC, or any threshold based on a probability of change, using the CPS metric. This is what MSS have done.”

    

    

   The RSPB claims that, as a specific application of PVA outputs, CPS is “the best available science” [6/17, Misleading use of science, 23—24;  6/63, affidavit of A McCluskie, § 50; cf. 13/80, Response to the Technical Component, § 94].

    

   CPS in the “appropriate assessment”
   [271]    The “appropriate assessment” itself bears to have been completed on 16 July 2014 by Mr Bennet, “MSS specialist for Environmental Impact Assessment (EIA) and Habitats Regulations Appraisal (HRA)”, and to have received final approval on 7 October 2014, three days before the section 36 consent and the cabinet secretary’s letter of 10 October.  

   [272]    It can be inferred that the second paragraph on page 45 was inserted after the teleconference with MSSAB on 29 September 2014.  It can be inferred, and indeed it is submitted as a point supposedly in the ministers’ favour, evidencing receptivity to representations, that Appendix 7 was added to the “appropriate assessment” in the light of discussions following Professor Green’s critique.  Appendix 7 in the hard-copy version produced in Court consists of a final two unnumbered pages following page 81 at the end of the Inch Cape “appropriate assessment” [6/4].  (Page references are to the hard copy version: the online version has Appendix 7 as two unnumbered pages following page 82.)  Appendix 7 is entitled: “Additional Presentation of Predicted effects on SPA Populations”. The first sub-heading refers to “counterfactuals of forecast populations after 25 years”.  A sentence was also inserted, at page 29 in the hard copy version exhibited, stating: “Additional presentation of the predicted effects is provided in Appendix 7.”  It would be logical that the inserted sentence and the new appendix were added after the teleconference with MSSAB but, in the absence of direct evidence, I make no finding to that effect.

   [273]    The ornithological component of the final Inch Cape “appropriate assessment” includes 45 pages, made up of 30 pages of text and fifteen pages of appendices, specifically devoted to ornithology. There are mentions of “counterfactuals” or “ratios of end population size” in four places, that is: at pages 28—29, in the section on population and impact-on-population assessment methods; in the section on assessment conclusions for each SPA species population, pages 35 and 39; in Appendix 1 headed “Addressing concerns raised by RSPB Scotland... ”, pages 70--71; and in Appendix 7, pages 82—83 (hard copy version, unnumbered).  Describing the text is difficult because there is no paragraph numbering and the numbering regime for sections and the formatting of headings and subheads is inconsistent.

   [274]     Pages 24—30 of the “appropriate assessment” appear to come under the heading “2.)  Setting a precautionary level of acceptable change”.  There is evidence of re-writing in that the bullet points under the heading do not entirely correspond with the sub-heads and contents that follow. The final bullet point is: “Ratios of median change to populations with and without the acceptable [sic] effects”, which could be intended as a reference to what has been referred to above as CPS thresholds.  At pages 28—29 there is the first mention of “counterfactual” in a sub-section headed: “Presentation of threshold values using different metrics and methods.” What follows is not about “acceptable effects” but “maximum allowable effects”.  The opening words of the subsection read:

    

   “The population forecasts produced by the PVAs can be used to explore the consequences for the population assuming levels of effects in comparison to forecasts without those effects. The ratio between the two (without/with effects), which is a “counterfactual”, does not of itself provide a threshold or [sic] acceptable change. It is an additional metric by which predicted impacts, or thresholds may be considered (see Table 5).

    

   It is important that metrics are used in the appropriate context:”

    

    

   There follow four caveats and a table, Table 5, showing maximum allowable end population effects for key SPA species populations as well as “equivalent PBR f-values” (intuitive population recovery factors on a scale of 0.1 to 1.0, most threatened to least threatened).  The next sub-section, nineteen lines long, is headed “Summary of population modelling approaches”.  There is no indication that this has been written taking account of CPS values.

   [275]    Pages 30 to 45 present the assessment conclusions for each species population and their SPAs in turn. References to “CPS” or “counterfactuals” as such are completely absent. There is one mention of the allowable effects end population ratio for gannet at Forth Islands SPA with a reference back to Table 5 [6/4, 35, giving a threshold value of 0.81 whereas Table 5 gives a value of 0.79].  There is one mention of the estimated effects end population ratio for puffin at Forth Islands SPA with a reference back to Table 5 [6/4, 39: both the threshold and estimated effects values are 0.75].  There is no mention of the end population ratios for kittiwake, which is significant, guillemot or razorbill populations. The individual assessments are used to support the overall conclusions at page 45:

   “Having determined that the [four Forth and Tay] developments will not have a negative effect on the constitutive elements of the sites concerned, on having regard to the reasons for which the sites were designated and their associated conservation objectives, and their associated conservation objectives, MS-LOT concludes that the proposed developments will not, on their own or in combination with each other... adversely impact the integrity of [the SPAs under consideration] subject to the compliance of [sic] conditions.”

    

    

   There is nothing to indicate that CPS metrics have been used to derive this conclusion even as a cross-check.

   [276]    Pages 67—74 constitute Appendix 1, headed “Addressing concerns raised by RSPB Scotland and WDC [Whale and Dolphin Conservation, formerly WDCS, Whale and Dolphin Conservation Society]”.  Appendix 1 bears to address concerns raised in the RSPB responses up to and including the comments of 1 May 2014 on the MacArthur Green Bass Rock Gannet PVA [population viability analysis] [6/14].  In other words Appendix 1 does not claim to engage with representations made by the RSPB from and including the letter to the cabinet secretary dated 12 May 2014.  This is possibly anomalous in that the appendix contains a reference, at page 70, to the RSPB representations in connection with the Hornsea 1 project mentioned in the technical annex to the letter of 12 May 2014 and in Professor Green’s paper; and in that the appendix appears to acknowledge Professor Green’s reference to “societal choice” with the distinctive sentence, “MSS acknowledge that allowing for a specific level of change is ultimately a societal choice that is heuristic.” (The phrase “societal choice” and the word “heuristic” are actually used in Appendix 1 to the cabinet secretary’s letter of 10 October 2014, “Marine Scotland Science (MSS) response to the critique by the RSPB of offshore wind farm seabird assessment entitled “Misleading use of science…”) The statement at page 71 of the appendix that the counterfactual of end populations “has however been presented for information in this AA” is, I assume, a reference to pages 28—29 and Table 5.  What is presented at pages 28—29 and Table 5 are “maximum allowable” or threshold values, not “estimated effects” CPS values. I take “presented for information” to mean “not actually used in making a determination”.  This would be consistent with the almost complete absence, already noted, of the metric in the assessment conclusions at pages 30 to 45.  I reject the evidence of Dr Wilson that “presentation” means “use” [13/92, § 54].

   [277]    Appendix 7, “Additional Presentation of Predicted effects...” gives two contrasting presentations in the form of data tables with explanatory notes.  Table B presents, in absolute numbers, annual additional breeding-season adult mortality effects, alongside MSS thresholds and most recent estimates of total population numbers (not including guillemot). For example, the in-combination additional annual adult mortality effect for Fowlsheugh kittiwake is 212 against a threshold of 317 and a population of 18,674.  Table A presents counterfactuals of forecast populations after 25 years, assuming the estimated wind farm effects, as percentages and as correlative percentages.  Unlike Table 5, which presents counterfactuals “assuming the maximum allowable reduction in annual adult survival”, Table A presents counterfactuals as “estimated effects”.  So, for example, in Table 5 the Fowlsheugh kittiwake end population ratio is 0.79 or 79.0% and in Table A the ratio is 81.0%, implying a two per cent margin of reassurance, or possibly non-reassurance, depending how precautionary “maximum allowable reduction” rates are.

   [278]    Table A also presents additional counterfactuals of change in population size factoring in baseline population trends. The notes to Table A state:

    

   “... The counterfactual of change in population size is also presented. As with all counterfactuals this has to be very carefully interpreted and must not be taken out of context. The context being the population trends: whether decreasing or increasing numbers of birds [sic]...”

    

    

   This underlines that CPS expresses comparative median effects isolated from projected population trajectories. Where populations are actually declining, the ministers’ “change in population” counterfactual values shows the decline, understandably, exacerbated by wind farm impacts.

    

   CPS values, advantages, limitations and relevance    

   [279]    The “Marine Scotland Science Response to the Technical Component of the RSPB Petition” [13/80] is co-authored by Dr Jared Wilson and Finlay Bennet.  The document has four pages of critique devoted to “The Counterfactual of Population Size (CPS) metric” [§§ 91—103; see also §§ 54—61,].  The main limitations of CPS are said to include (1) that CPS ignores inter-species variations in life-span, reproductive rates and recovery potential; (2) that CPS produces the same value for both increasing and declining populations; (3) that no method is proposed for applying CPS to different timescales; (4) that the statistical robustness of CPS does not confer biological meaning for the purpose of managing population sustainability; (5) that CPS does not establish a magnitude of acceptable effect; (6) that no method is proposed for linking CPS with adverse impacts on SPA integrity [cf. 6/17, Misleading use of science, 23—25, “Advantages and limitations of the Counterfactual of Population Size”; 6/63, affidavit of A McCluskie, §§ 91—103].

   [280]    The authors seem to invite readers to take it on trust that, because of the precautionary elements, or claimed precautionary elements in the estimation of annual additional effects which are within the as-likely-as-not thresholds, then the project lifetime effects must also be acceptable [13/80, § 99; see paragraphs 258—259 above].  This is not something that the RSPB does accept. [6/37, affidavit of C Nathan § 16 and 22].

    

    [281]   By way of comparison the RSPB refers to the Ribble Estuary case where the proposal was to cull bird populations which presented a risk to the test flying of military aircraft. The Court of Appeal held that the Secretary of State’s approval of a 25 per cent cull was unlawful [RSPB v Secretary of State for Environment, Food and Rural Affairs (Ribble Estuary) [2015] Env LR 24]. The ministers in the present case submit, I think correctly, that the Ribble Estuary decision turned on whether the Secretary of State had misinterpreted the conservation objectives for the Ribble Estuary SPA in the light of the Joint Nature Conservation Committee [JNCC] guidance, Common Standards Monitoring Guidance for Birds (JNCC, 2004, revised August 2004). The Secretary of State relied on the JNCC guidance as to “generic thresholds” [at 3—4]:

    

   “The generic threshold approach is widely used to assess the conservation status of

   individual bird species at the national level and to guide the setting of conservation

   priorities. The adoption of this system at the site level is a robust way of defining a

   common and easily used standard. A simple threshold system works by comparing

   population sizes at different times and deriving the change (expressed as a proportion of the initial population). If this change represents an absolute loss of 25%, or more, of a breeding population or 50%, or more, of a non-breeding population then the feature will be in unfavourable condition. These changes are the generic targets (thresholds) in CSM [Common Standards Monitoring] for the simple generic threshold approach...”

    

    

   The Court of Appeal held that the 25 per cent figure refers to declines attributable to natural fluctuation; that the conservation objective is to maintain populations; that a decline of 25 per cent or more because of natural factors is unacceptable; and that the 25 per cent threshold does not, contrary to the Secretary of State’s understanding, authorise anthropogenic reductions of up to 25 per cent.  The Court of Appeal concluded that the proposed cull was inconsistent with the conservation objectives for the SPA, which are: “to avoid ‘significant disturbance of the qualifying features’ and to ensure that the integrity of the site is maintained and that it makes a full contribution to achieving the aims of the Birds Directive by maintaining the populations of the qualifying features, subject to natural change” [§§ 26—29].

   [282]    It is correct that the conservation objectives in the present case are different. The “viability” objective in the present case, for each SPA, is “the long-term maintenance of the population of each qualifying bird species as a viable component of the SPA”.  The question is whether a project-lifetime comparative reduction of, say, 20 per cent in a qualifying species is consistent with the conservation objective interpreted in the light of the European and domestic legislation. This is not a question which, as I read the “appropriate assessment”, the “appropriate assessment” sets out to address.  It is a question raised in the ministers’ supplementary written submissions: but it is not a question to which the submissions offer an answer.  None of the material presented to me discredits CPS as a metric, within its accepted limitations, or refutes the significance of the CPS values.

    

   Whether the “appropriate assessment” might, not inconceivably, be different

   [283]    The question at this stage is whether, if the “appropriate assessment” were now to be re-made, the outcome might, not inconceivably, be different.  I have to assume that the ministers would approach any re-assessment as decision-makers, rather than in litigation mode.  On that assumption, I am not satisfied that the ministers and the interested parties have established that a different outcome is inconceivable.  The main reasons for the conclusion that a different outcome is not inconceivable are as follows. First, in a case like this, a different outcome does not necessarily mean a refusal of all the applications.  There are quantitative options, both as to how many and which projects are to be consented and as to the number, spacing or density and height of the turbines and the rotor-swept areas in the consented projects.  

   [284]    Secondly, I hold it to be implicit in the European and domestic habitats legislation that cumulative effects, in the sense of incremental effects over time, have to be assessed. The obligation is express in terms of the European and domestic EIA legislation; and the ministers have to “take into consideration” cumulative effects, by incorporation of the “appropriate assessment” into the EIA assessments—their chosen method in this case—or otherwise. There is no explicit assessment of cumulative effects on protected avian populations and there ought to be one.  Counterfactuals are the only expression of cumulative, impact-on-population effects over the lifetime of the projects which are presented; and they are also accepted by all parties as being robust.

   [285]    The third point is about the criterion for assessing cumulative effects.  Both the MSS “estimated annual effects” and the MSS “allowable annual effects” are of course contested because based on disputed CRM outputs and on contested impact-on-population interpretation “tools”, ABC, ruABC and scalar: but the criticism made by the RSPB in the present context is that the ministers have simply not applied their mind, separately and distinctly, to the issue whether the ministers’ “estimated effects” expressed as 25-year CPS values, for example in the 19.0% to 25.0% population reduction range quoted above, raise “reasonable scientific doubt” as to the absence of adverse impacts on the affected SPAs and their qualifying interests.  This is the criterion against which effects must be assessed. The criticism is well-founded.

   [286]    Fourthly, the attitude of the ministers and their advisers to the expression of cumulative effects using CPS is equivocal: they have rejected CPS [6/16], they have presented CPS values “for information” [6/4, 71], they have described CPS, positively, as “one of a range of useful metrics that can be used” [6/22], they have offered a negative critique of CPS [13/80, 31—34].  On the face of the “appropriate assessment”, CPS values have been presented but have not been “taken into consideration” or used to determine, in terms of the European and domestic habitats legislation, the issue “whether reasonable scientific doubt remains as to the absence of adverse effects” [Waddenzee (above) at § 61].  There is a lacuna in the affidavit evidence presented by the ministers: the evidence does not explain how the apparently conflicting comments about CPS are to be reconciled, why the CPS values do not raise “a reasonable scientific doubt” for the ministers and whether the “appropriate assessment” might conceivably be different if re-made now assessing project-lifetime, cumulative effects.  The possibility cannot be excluded that the positive voice heard in the cabinet secretary’s letter of 10 October 2014 and its technical annex will prevail in a re-made “appropriate assessment”; and that CPS will be applied in the determination of the statutory issue, with a different outcome.

   [287]    The fifth point is that the “appropriate assessment” might easily be re-written. This is due to the fact that the conclusion as it stands is narrowly based: the conclusion is based essentially on in-house MSS advice; the in-house advice relies on contested science; and the inferences drawn are contrary to the representations made, not just by the RSPB, but also by the SNCBs, the ministers’ statutory consultees.  The current SNCB view is that the projects will have an adverse impact on the Forth Islands SPA as regards kittiwake, puffin and gannet and an adverse effect on the Fowlsheugh SPA as regards kittiwake [6/4, 81, Appendix 6].  This is so even in the absence of any consultation with, or representation from the SNCBs about CPS.  (This underlines that the CPS values presented in the “appropriate assessment” are for information only and not for the purpose of determination, otherwise they should have been consulted on.)  If the “appropriate assessment” were to be re-made addressing the question of cumulative effects and with the benefit of fresh inputs about CPS, the conclusion might well be different.

    

   Ground B.2: the Forth & Tay marine draft special protection area [dSPA]

   [288]    On 15 August 2012 the RSPB lodged a formal complaint with the European Commission about the claimed failure to classify, or delay in classifying the Forth and Tay area as a marine special protection area [SPA]. The complaint remains under consideration. A draft proposal for classification now exists; and the ministers’ decision on classification, following a period of public consultation overseen by Scottish Natural Heritage [SNH], is awaited.  The proposed name for the new site in full is “Firth of Forth and Tay Bay Complex marine SPA”.  The classification process is governed by the Conservation (Natural Habitats, &c.) Regulations 1994 (as amended), regs. 9A—9C.  In the current judicial review proceedings the RSPB pleads that the ministers should take account of the draft proposal for classification of the Forth and Tay marine SPA, as if the SPA has already been classified, in assessing the impacts of the Inch Cape project in combination with the other projects; and that the failure of the ministers to do so renders the Inch Cape section 36 decision unlawful [Petition, § 30(a) and (b)]. I have decided that a version of this ground of challenge should be upheld.

   [289]    My understanding of the background, and of the legal framework on the basis of the submissions made to me, is as follows. (The submissions include references to several documents which contain references to other non-produced documents and to websites.)

    

   Ground B.2: legal framework for protection of species and habitats
   [290]    There are different processes for the protection of avian species and their habitats on the one hand and for, on the other hand, the protection of non-avian species and their habitats and the protection of habitat types. The respective processes have their own vocabularies.  There are also differences in the terminology between England & Wales and Scotland.

    

    Protection in terms of the Birds Directive 79/409/EEC, now Directive 2009/147/EC

   [291]    The Birds Directive 79/409/EEC was adopted on 6 April 1979.  The latest date for implementation in the United Kingdom was 7 April 1981.  By article 4(1) and (2) member states are required to classify SPAs for, respectively, the rare or vulnerable bird species listed in Annex I and the regularly occurring migratory bird species not listed in Annex I, “bearing in mind their need for protection… as regards their breeding, moulting and wintering areas and staging posts along their migration routes”.  Areas to be classified are “the most suitable territories in number and size... for the conservation of these species, taking into account their protection requirements... ” The Birds Directive 79/409/EEC art. 4(4) provides:

    

   “In respect of the protection areas referred to in paragraphs 1 and 2 above, Member States shall take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting the birds, in so far as these would be significant having regard to the objectives of this Article. Outside these protection areas, Member States shall also strive to avoid pollution or deterioration of habitats.”

    

    

   The provisions have in view the “need for protection in the geographical sea and land area where this Directive applies”. The Birds Directive 79/409/EEC and its several amendments are codified in the Birds Directive 2009/147/EC.

    

   Protection in terms of the Habitats Directive 92/43/EEC
   [292]    Turning to the Habitats Directive 92/43/EEC, the period for transposition into United Kingdom law expired on 10 June 1994. Transposition was supposed to be effected by the Conservation (Natural Habitats &c) Regulations 1994.  These regulations were expressed to apply up to the territorial sea limits, that is up to twelve nautical miles from the coast or baseline.  In 1999 the Greenpeace case, which concerned the grant of licences for oil and gas exploration, decided that although much of the Habitats Directive 92/43/EEC could properly be described as "land-based", on a purposive construction the directive could only achieve its aims if its application extended beyond territorial waters [Secretary of State for Trade and Industry ex parte Greenpeace Ltd (No. 2) [2000] 2 CMLR 94].  In 2005 the Court of Justice held that the United Kingdom had failed in its obligation to transpose the Habitats Directive 92/43/EEC beyond territorial waters and throughout the full extent of the United Kingdom economic zone [Commission of the European Communities v United Kingdom (C-6/04) [2005] ECR I-09017, [2006] Env LR 29].  The Offshore Marine Conservation (Natural Habitats, &c) Regulations 2007 extend the habitats regime to the United Kingdom continental shelf and to waters beyond the seaward limits of the territorial sea within and up to the British fishery limits.

   [293]    Article 3 of the Habitats Directive 92/43/EEC provides for the setting up of a coherent European ecological network of habitats sites under the title Natura 2000.  Natura 2000 comprises, first, SPAs in terms of the Birds Directive 79/409/EEC and, secondly, sites of Community importance [SCIs] identified in accordance with selection criteria specified in the Habitats Directive 92/43/EEC art. 4 and Annex III.  Annexes I and II respectively list habitat types for which sites are to be designated and species (flora and non-avian fauna) for which habitat sites are to be designated.  Priority habitat types and priority species are marked with an asterisk. Member states are to transmit lists of proposed SCIs to the European Commission, originally by 10 May 1995; the Commission is to draw up the draft list of SCIs, originally by 10 May 1998; and sites listed in draft were and are to be formally adopted by the Commission using the procedure specified in article 21.  Once adopted, sites must be designated by member states as special areas of conservation [SACs] “as soon as possible and within six years at most”, with priorities for maintenance and restoration.  The protective regime in terms of the Habitats Directive 92/43/EEC art. 6 (2), (3) and (4) applies to SACs.  In terms of article 4(5), SCIs become subject to the protective regime for SACs as soon as they are adopted onto the Commission’s list. The Commission may repeal and update adoption lists [Sweetman v An Bord Pleanála (C-258/11) ECLI:EU:C:2013:220, [2014] PTSR 1092at §§ AG13—AG17]. The commission is normally bound to adopt listed priority habitat types and habitats of species.

    

   European protected sites in the marine environment

   [294]    In 2003 the European Commission set up an ad hoc working group under the Habitats Committee to “develop a common understanding of the provisions of Natura 2000 relating to the marine environment in order to facilitate the designation and future management of these areas”.  The “offshore marine environment” means sea areas where member states exercise some type of sovereignty rights beyond the limits of the territorial sea. The resulting guidance addresses “the key challenge of EU biodiversity policy” namely the “need to fully apply the Habitats and Birds Directives to the offshore marine environment of the European Union” [European Commission, Guidelines for the establishment of the Natura 2000 network in the marine environment: application of the Habitats and Birds Directives (2007), 6].  

    

   Marine SPAs in the United Kingdom
   [295]    The United Kingdom government is said to be committed to identifying “a network of SPAs in the marine environment”.  According to the affidavit evidence of David Mallon, head of the environmental branch of the directorate of Marine Scotland [MS], a work programme to identify marine SPA proposals was initiated in the United Kingdom in the early 2000s [13/91, affidavit of D Mallon].  The programme is led by the Joint Nature Conservation Committee [JNCC]. In 2001 the JNCC settled the current United Kingdom-wide SPA selection guidelines. The guidelines apply to terrestrial and marine areas. The JNCC website describes the selection process as follows:

    

   “The process involves two stages. The first stage is intended to identify areas which are likely to qualify for SPA status. These areas are then considered further using one or more of the judgements in Stage 2 to select the most suitable areas in number and size for SPA classification. Stage 1's fourth guideline gives consideration, using the Stage 2 judgements, to cases where a species' population status, ecology or movement patterns may mean that an adequate number of areas cannot be identified from Stage 1's first three guidelines alone. In addition, these Stage 2 judgements are particularly important for selecting and determining the boundaries of SPAs for thinly dispersed and wide-ranging species.”

    

    

   The criteria involve a minimum of three years’ annual data. The details are available at http://jncc.defra.gov.uk/page-1405 and at production 6/66, § 4 [see also Bown v Secretary of State for Transport, Local Government and the Regions [2004] Env LR 26 at § 32].  In 2009 the ministers classified 31 marine extensions to terrestrial breeding colony SPAs, extending up to four kilometres from the coast in Scottish inshore waters.

   [296]    The JNCC currently lists 270 SPAs in the United Kingdom including 102 SPAs with marine components and four wholly marine SPAs.  None of the wholly marine SPAs is in Scottish waters. Marine SPAs in the Scottish inshore region are being progressed by Scottish Natural Heritage [SNH] and the JNCC based on research over many years and intensively since 2002 carried out largely by the JNCC.  On 22 July 2014 SNH, the JNCC and Marine Scotland [MS] jointly released information on a suite of fourteen Scottish draft proposed marine SPAs [dSPAs], twelve of them inshore.  SNH presented to ministers the information required by the ministers to make a decision, subject to consultation, on the dSPAs in question.  “Stakeholders” will be consulted by SNH on the case for classification.  Following the consultation report the ministers will make a decision on classification.

    

   The Forth & Tay marine dSPA

   [297]        One of the inshore Scottish dSPAs is the “Outer Firth of Forth and Tay Bay Complex” [“Forth & Tay marine dSPA”].  The Forth & Tay marine dSPA lies between St Abbs Head in the south and Red Head, a point between Arbroath and Montrose, in the north.  The dSPA includes the inner and outer estuaries of the Forth and Tay rivers and extends seawards at its furthest point to about 50 kilometres east of the Isle of May. The dSPA lies predominantly in the Scottish inshore region, that is within the seaward limits of the territorial sea adjacent to Scotland.  Mr Mallon describes the Forth & Tay marine dSPA as “in effect… an extension of existing SPAs” meaning or including, I take it, the Fowlsheugh and Forth Islands SPAs with which this Opinion is predominantly concerned. The ministers’ Note of Argument at paragraph 51 states that the dSPA “would in effect be another extension to existing SPAs though it may include some additional species and have somewhat different conservation objectives”.  Because most of the site lies within the Scottish inshore region, SNH has the lead.  A “regulation 33 package” dated 11 June 2014 and a “departmental brief” dated 20 June 2014 for the Forth & Tay marine dSPA were presented to the ministers by SNH in July 2014.  The “regulation 33 package” consists of advice as to the “conservation objectives for the site” and as to “operations which may cause deterioration of natural habitats or the habitats of species, or disturbance of species, for which the site has been designated”, all with reference to the Conservation (Natural Habitats &c) Regulations 1994 (as amended) reg. 33(2).  The “departmental brief” contains the scientific case [6/66, Firth of Forth and Tay Bay Complex Departmental Brief: the Scientific Case for the Site; 6/67, Firth of Forth and Tay Bay Complex, Draft Conservation Objectives and Advice on Operations; 6/72, Update: Nature Conservation Marine protected Areas, §§ 1, 2 and 5; 13/94, letter from SNH, Dr G P Mudge, 27 May 2015].

   [298]    These documents are not in the public domain. In the present proceedings, a complaint is made by David Mallon that the RSPB did not request MS to lift the confidentiality agreement between MS and the RSPB before lodging as productions the “departmental brief” and the “regulation 33 package” [13/91, affidavit of D Mallon, 1 May 2015, §§ 27, 33].  Nothing is made of this point in the submissions of the ministers and the respective interested parties.

   [299]    The draft “citation” for the Forth & Tay marine dSPA annexed to the departmental brief identifies four qualifying interests: first, under article 4(1) of the Birds Directive 2009/147/EC by regularly supporting a wintering population of European importance during the five year period 2001/02 to 2004/05 of five Annex I species;  secondly, under article 4(2) by regularly supporting populations of European importance during the five year period 2001/02 to 2004/05 of six migratory species; thirdly, under article 4(2) by regularly supporting populations of European importance during the period 1980-2006 of seven migratory species during the breeding season including northern gannet (morus bassanus), Atlantic puffin (fratercula arctica), black-legged kittiwake (rissa tridactyla) and razorbill (alca torda); and, fourthly, under article 4(2) by supporting populations during 2003/04—2005/06 of three migratory species. The draft conservation objectives—quoted in full above—include maintenance of the following attributes for each qualifying species in the long term (ie forecasting for ten years ahead): (1) population of the species as a viable component of the site; (2) distribution of the species within the site; ... (5) no significant “disturbance” of the species. “Operations which may cause… disturbance” etc include “wind energy projects”, which are said to put gannet, razorbill, puffin, kittiwake and other species, including three of the Annex I species, at a degree of risk. The sensitivity of two of the five Annex I species to the risk is said to be “high”.

    

   Substitution and derogation in terms of the Habitats Directive 92/43/EEC, art. 7

   [300]    It is doubtful that the Birds Directive art. 4 as originally enacted is able to take account of social and economic objectives as interests superior to environmental interests [Commission of the European Communities v Germany (Leybucht Dykes) (C-57/89) ECR [1991] I-00883, [1990] 3 CMLR 651 at §§ 20—22].  The Habitats Directive 92/43/EEC, art. 7 makes changes to the protective measures for SPAs by substituting article 6(2), (3) and (4) of the Habitats Directive 92/43/EEC for the obligations under the first sentence of article 4(4) of the Birds Directive 79/409/EEC, now Directive 2009/147/EC.  As already narrated, the first sentence of article 4(4) reads as follows: “In respect of the protection areas referred to in paragraphs 1 and 2 above, Member States shall take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting the birds, in so far as these would be significant having regard to the objectives of this Article.” A broadly similar provision—though making no mention of pollution—is contained in the substituted Habitats Directive 92/43/EEC art. 6(2) [for a comparison of the provisions see Royal Society for the Protection of Birds v Secretary of State for Scotland 2000 SLT 1272].

   [301]    The rest of the substitution has the effect that where areas are classified as SPAs, plans and projects having likely significant effects must be subject to an “appropriate assessment” in terms of the Habitats Directive 92/43/EEC art. 6(3) and may be authorised for “imperative reasons of overriding public interest, including those of a social or economic nature” in terms of the Habitats Directive 92/43/EEC art.  6(4).  This is the effect of article 7 of the Habitats Directive 92/43/EEC from the date of implementation, 10 June 1994, or from the date of classification of areas as SPAs, whichever is the later. The substitution is said to represent a derogation from the original Birds Directive protection for classified SPAs in that it contemplates the possibility of deterioration and disturbance as the result of consented developments.  The question is: what should happen to areas that have not been classified as SPAs but which fulfill the criteria for protection?  Are they unprotected?  Do they continue to be governed by the first sentence of article 4(4) of the Birds Directive 79/409/EEC, now 2009/147/EC? Are they subject to articles 6(2), (3) and (4) of the Habitats Directive 92/43/EEC.

    

   Protection of potential protected sites

   [302]    The guidance offered by the European Commission in relation to potential protected sites, potential SPAs in terms of the Birds Directive and potential SACs in terms of the Habitats Directive, states (I use “potential” here in a non-technical, Scottish, sense):

    

   “As regards the provisions of Article 6(2), (3) and (4) [of the Habitats Directive 92/43/EEC], it is clear from the terms of Article 7 that these now apply to already classified SPAs. However, given the wording of Article 7, a question arises as to whether the provisions of Article 4(4), first sentence of Directive 79/409/EEC remain applicable after the 'date of implementation of this directive' … until such time as a site is classified as an SPA.

   In the Santoña Marshes case (see Annex I, point 3), the European Court of Justice established that the provisions of Article 4(4) first sentence were applicable to an unclassified site which should have been classified as an SPA from the date of implementation of [the Birds] Directive 79/409/EEC (i.e. 7 April 1981 for the then Member States and the date of accession for later Member States).

   The underlying rationale of Santoña Marshes is that sites that deserve classification should be treated in the same way regardless of whether or not they are formally classified. The Commission services therefore consider that the provisions of Article 6(2), (3) and (4) are applicable to SPAs, or to sites

   which should be classified as SPAs, from the date of implementation of Directive 92/43/EEC.

    

   […]

    

   Article 10 (ex Article 5) of the Treaty establishing the European Community provides as follows:

    

   'Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community's tasks. They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty.'

    

   The European Court of Justice has, on several occasions, held that, even in the absence of transposing measures or the implementation of specific obligations resulting from a directive, the national authorities, when interpreting national law, should take all possible measures in order to achieve the results aimed at by a directive.

   Furthermore, the European Court of Justice ruled in Santoña Marshes that a Member State could not escape from its duty to protect a site which, according to relevant scientific criteria, deserved protection, by not classifying it as a special protection area [SPA in terms of the Birds Directive 79/409/EEC]. It is possible that this principle could be used, by analogy, in questions arising from [the Habitats] Directive 92/43/EEC.

    

   […]

    

   … The European Court of Justice has already confirmed the importance which should be attached to sensitive natural sites when deciding whether projects should undergo an EIA under this directive (see Annex I, point 4).”

    

   Annex I points 2 and 3 reference Commission of the European Communities ν Spain (Santoña Marshes) (C-355/90) [1993] ECR I-04221 and Commission ν France (Seine Estuary) (C-166/97) [1999] ECR I-01719; and Annex I point 4 references Commission of the European Communities ν Ireland (Birds Directive etc) (C-418/04) [2007] ECR I-10947 [Managing Natura 2000 Sites: the provisions of Article 6 of the ‘Habitats’ Directive 92/43/EEC (European Communities, Luxembourg, 2000, revised), §§ 1.4.1, 1.4.2].

    

   Ground B.2: future classification and the Inch Cape decision-making

   [303]    The ministers’ scoping opinion for the Inch Cape project contains the following advice about future protection of ornithological interests [Appendix A, “Advice on Natural Heritage Interests to be scoped into Environmental Impact Assessment, 24]:

    

   “In Appendix D, we are only able to provide advice on HRA in respect of existing SPAs. We note that there is work underway across the UK to designate marine SPAs. This is to ensure a comprehensive network of SPAs across Europe, which will provide protection for all bird species across their life cycle stages. Further information on this programme of work, and on the four types of marine SPAs which will be designated, is provided on JNCC’s website.

   The Firth of Forth supports nationally and internationally important bird species, and it is included as an area of search for various marine SPAs. The extensions to existing seabird SPAs – including the Firth of Forth SPA and the Forth Islands SPA – are one of the types of marine SPAs being designated. While this designation has now concluded for a range of seabirds – common guillemot, razorbill, Atlantic puffin, northern gannet and northern fulmar – there is ongoing work in respect of breeding terns.

   The other two key types of marine SPAs will be designated for:

    

   • Inshore aggregations of non-breeding waterbirds; and
   • Offshore aggregations of seabirds.

 

       In respect of the former interest, please refer to JNCC report no. 402 which analyses data from surveys of inshore waterbirds outside the breeding season. The Firth of Forth is one of the areas of search for which data is being collated. It is important to emphasise that this report is solely a collation and analysis of the available data in order to inform the process of designation, which is at a very early stage. Further assessment will be required before any final recommendations are made for the proposed list of sites that Scottish Government will submit to the European Commission for their consideration.

       JNCC report no 431 will address the latter interest – offshore aggregations of seabirds – collating and analysing the available data. The Firth of Forth is an area of search in respect of these interests as well, therefore the above provisos apply with regard to this report and how it relates to the designation process.”

 

(The references to the process of “designation” and the “proposed list of sites” that will be submitted to the European site suggests confusion of the Birds Directive 79/409/EEC, now 2009/147/EC with the Habitats Directive 92/43/EEC.)

 

Future classification in the Inch Cape environmental statement

[304]    The Inch Cape environmental statement contains derivative references to the possibility of a Forth & Tay marine SPA, for example, [chapter 15, “Ornithology”, table 15.1 “Scoping Responses and Actions”]:

 

“SNH is only able to provide advice on HRA in respect of existing SPAs. The Firth of Forth supports nationally and internationally important bird species and is included as an area of search for marine SPAs. Extensions for seabirds have recently been announced for the Forth Islands SPA. There is ongoing work in respect of breeding terns. Marine SPAs will also be designated for inshore aggregations of non-breeding water birds and offshore aggregations of seabirds, with references to Dawson et al. (2008) and Kober et al. (2010).”

 

 

The “inshore aggregations” referred to include two of the five Annex I species populations listed in the Forth & Tay marine dSPA citation, namely red-throated diver (gavia stellata) and Slavonian grebe (podiceps auritus).  Inch Cape’s understanding, as expressed in the environmental statement is: “[s]hould additional sites be identified in the near future in the Forth/Tay area, or with potential connectivity with the Forth/Tay, these would also need to be considered for HRA [Habitats Regulations appraisal] in relation to the [Inch Cape project]” [Offshore Environmental Statement, vol 2F, chap 15, “Ornithology”, 2].  Counsel tell me that all applicants were aware that a Forth & Tay marine SPA might be classified.

 

Representations on future classification
[305]    The statutory nature conservation bodies’ [SNCBs’] consultation responses, representations and advice, or such as I have seen, in relation to both the environmental impact assessments and the “appropriate assessment” make no mention of the Forth & Tay marine dSPA.  The RSPB consultation response, 26 March 2014, does refer to potential new SPAs.  The RSPB response states [6/14, 8]:

 

“Failure to fully implement the Birds Directive and take adequate measures to address the declines will only exacerbate the current crisis… Furthermore, there already exist identified marine areas that meet the criteria for SPA designation in these Scottish waters. This further complicates the situation for the Firth of Forth proposals, not least that [sic] Scottish Ministers are required to consider the potential effects on these areas as if they were already designated.”

 

The Basses Corbières case, C-374/98, is foot-noted.

 

Pre-classification protection in the United Kingdom

[306]    United Kingdom policy on pre-classification protection is contained in the UK Marine Policy Statement (HMSO, London, 2011) at paragraph 3.13:

 

“The Conservation of Habitats and Species Regulations 2010, the Conservation (Natural Habitats &c) Regulations 1994 (for Scotland only), the Conservation (Natural Habitats &c) Regulations (Northern Ireland) 1995 and the Offshore Marine Conservation (Natural Habitats &c) Regulations 2007, among others, provide statutory protection for [SACs and SPAs], but do not provide statutory protection for potential Special Protection Areas (pSPAs) before they have been classified as SPAs. For the purpose of considering development proposals affecting them, as a matter of policy, UK Administrations wish pSPAs to be considered in the same way as if they had already been classified.”

 

 

So, UK policy is to provide protection to potential SPAs, known as pSPAs.  The ministers’ policy is to afford the Scottish equivalent, proposed sites, also acronymised as pSPAs, the same protection as classified sites [7/10, excerpt, Scottish Planning Policy (Scottish Government, 2014), § 210; Scotland’s National Marine Plan (Scottish Government, 2015), § 4.45]:

 

“Authorities should afford the same level of protection to proposed SACs and SPAs (i.e. sites which have been approved by Scottish Ministers for formal consultation but which have not yet been designated) as they do to sites which have been designated.”

 

 

 “Proposed” in this context is a term of art.  The first stage of formalisation is the “draft” stage, the dSPA stage at which the draft proposal is presented to the ministers for possible public consultation.  A “proposed SPA” or “pSPA” is the second stage, the stage at which the proposal is, as stated, approved by the ministers for formal public consultation.  In England & Wales “potential SPAs” or “pSPAs” are “sites on which Government has initiated public consultation on the scientific case for designation as a Special Protection Area” [National Planning Policy Framework (Department for Communities and Local Government, 2014), § 118, note 26].

 

Progressing classification of the Forth & Tay marine SPA

[307]    The information pack for the suite of fourteen Scottish marine dSPAs states: “Formal consultation on those dSPAs will follow later, probably in 2015.”  In his affidavit, dated 21 May 2015, Mr Mallon envisages that the Forth & Tay marine dSPA will be ready for consideration by the ministers for consultation in June 2015.  Apparently public consultation has not yet been initiated. On this basis the Forth & Tay marine dSPA has not yet attained the status of pSPA and therefore does not benefit from the protection conferred by the planning policy.  The process is described in David Mallon’s affidavit [13/91, § 25].

[308]    The combined “appropriate assessment” in the present case makes no mention of the Forth & Tay marine dSPA. The environmental impact assessment in terms of the Marine Works EIA Regulations for the purpose of the Inch Cape Marine (Scotland) Act 2010 section 21 licences makes no mention of the Forth & Tay marine dSPA. The Inch Cape Electricity Act 1989 section 36 decision states:

 

“A recent announcement by the Scottish Government has highlighted the Outer Firth of Forth and Tay Complex as a draft marine SPA as it meets the SNH and the JNCC selection guidelines. A formal consultation will be undertaken towards the end of 2014/ beginning of 2015. Following consultation it is possible that this area could become a designated marine SPA towards the end of 2015. At this stage a further AA may be required if Likely Significant Effects (“LSE”) on the qualifying features is identified from the Development. Under the Habitats regulations this must be carried out as soon as is reasonably practicable following designation.”

 

 

I am told that the same wording appears in the other section 36 decisions including the Neart na Gaoithe section 36 decision.  The Neart na Gaoithe project, which is proposed to be sited off Fife Ness, is located within the Forth & Tay marine dSPA.

 

Post-consent environmental and habitats assessment

[309]    The reference in the section 36 decision to “a further AA [appropriate assessment]” is a reference to the statutory provision for the situation where a site is classified after development has been consented.  The immediately relevant provisions are contained, for Scotland, in the Conservation (Natural Habitats &c) Regulations 1994 (as amended) reg. 50:

 

“50.— Review of existing decisions and consents, &c.

 

(1) Where before the date on which a site becomes a European site or a European offshore marine site or, if later, the commencement of these Regulations, a competent authority have decided to undertake, or have given any consent, permission or other authorisation for, a plan or project to which regulation 48(1) would apply if it were to be reconsidered as of that date, the authority shall as soon as reasonably practicable, review their decision or, as the case may be, the consent, permission or other authorisation, and shall affirm, modify or revoke it.

 

(2) They shall for that purpose make an appropriate assessment of the implications for the site in view of that site's conservation objectives; and the provisions of regulation 48(2) to (4) and regulation 48A shall apply, with the appropriate modifications, in relation to such a review.

 

(3) Subject to the following provisions of this Part, any review required by this regulation shall be carried out under existing statutory procedures where such procedures exist, and if none exist the Secretary of State may give directions as to the procedure to be followed.

 

(4) Nothing in this regulation shall affect anything done in pursuance of the decision, or the consent, permission or other authorisation, before the date mentioned in paragraph (1).”

 

“European sites” include SPAs, SACs and SCIs placed on the Commission’s draft list [Conservation (Natural Habitats &c) Regulations 1994 (as amended) art. 10].  Counsel’s submissions offer assistance as to how the statutory requirement to review the decision “as soon as reasonably practicable” after classification fits with the policy of treating pSPAs as if classified.

[310]    There are provisions relating specifically to review of Electricity Act 1989 section 36 consent decisions.  Up till the time when generating stations become operational, the ministers may vary and revoke consents and are empowered to pay compensation.  These provisions, if I understand the submissions correctly, were to be found for Scotland in the Conservation (Natural Habitats &c) Regulations 1994 (as amended) regs. 71—74 and, I think, are now contained in the Conservation of Habitats and Species Regulations 2010 (as amended) regs. 86—89.

 

Ground B.2: submissions for the RSPB
[311]    The RSPB submits that the ministers are in breach of their obligation to classify the Forth and Tay site.  In any event, according to the RSPB in oral submissions, the dSPA should be treated as subject to the protective measures in the Birds Directive 2009/147/EC art. 4(4), first sentence: the obligation to classify has been in place for over 30 years; the scientific case has been made out since 2006 or 2008 at latest; the information gathered in connection with the present application reinforces the scientific case; and the ministers accept in their section 36 decision, quoted above, that the selection criteria have been met.  In oral submissions the ministers accept, it is said, that it is “highly unlikely” that the site will not be classified. There may be some adjustment of the proposed boundaries and of the conservation objectives: but, the RSPB submits, there is no serious suggestion that there will not be a Forth and Tay marine SPA or that the Neart na Gaoithe project will lie completely outside its boundaries.  To simply note the existence of the dSPA and to put it aside without consideration of the implications, as the section 36 decision does, is inadequate.

[312]    The propositions which the RSPB draws from the case law are as follows.  The measures necessary to comply with the Birds Directive 79/409/EEC, now 2009/147/EC art. 4, must be put into effect immediately; the obligations are imperative; and member states may not plead provisions, practices or circumstances existing in their internal legal systems in order to justify a failure to comply with the obligations and time-limits laid down in a directive. Economic and social factors are irrelevant in deciding whether a site should be classified.  It is clear from the ninth recital of the preamble to the Birds Directive 79/409/EEC, now 2009/147/EC, that the preservation, maintenance or restoration of a sufficient diversity and area of habitats is essential to the conservation of all species of birds and that special measures are required for certain rare and vulnerable species and also for migratory species. (Reference is also made, separately, to recitals 3, 4, 5, 7, 8 and 13, emphasising the challenge of declining species referred to in recital 3 and the need for further scientific research referred to in recital 13.)  Where a given area fulfils the criteria for classification as an SPA, it must be made the subject of the conservation obligations; and this applies to sites for regularly occurring migratory species as it applies to sites for Annex I species. The protection afforded to regularly occurring migratory species is justified by the fact that they constitute a common heritage of the Community. The classification and delimitation of sites is solely determined by the ornithological selection criteria and the margin of discretion allowed to member states concerns only the application of those criteria. The obligation to classify sites is not relaxed because the best scientific information was not available at a given time.  In the absence of authoritative contrary evidence, the obligation to classify may be supported by relevant data from any reputable expert source. The obligation to classify cannot be avoided by the adoption of other conservation measures.  Sites which should have been classified as SPAs but which have not been so classified are entitled to the protection of the measures in article 4 of the Birds Directive 79/409/EEC, now 2009/147/EC [Commission ν Spain (Santoña Marshes) (C-355/90) [1993] ECR I-04221 at §§ 9—32; R v Secretary of State for the Environment ex parte Royal Society for the Protection of Birds (RSPB) (Lappel Bank) (C-44/95), [1997] QB 206 at §§ 17—27; Commission of the European Communities  v Netherlands (Friesian Ijsselmeer and Hooge Platen) (C-3/96) [1998] ECR I-03031, [1999] Env LR 147 at §§ 55—62; Commission of the European Communities v France (Basses Corbières) (C-374/98) [2000] ECR I-10799 at §§ 8—17, 26—30, 43--58; Commission v Austria (Lauteracher Ried) (C-209/04) [2006] ECR I-02755, [2006] Env LR 39 (incorrectly reported as C-209/03) at §§ AG21—AG48,  §§ 31—48; Commission ν Ireland (Birds Directive etc) (C-418/04) [2007] ECR I-10947 at  §§ 36—67, 100 and 101; Sustainable Shetland v Scottish Ministers 2015 SC (UKSC) 51 at §§ 13--34 per Lord Carnwath with whom the other justices agreed].

[313]    The RSPB submissions also invoke the Conservation (Natural Habitats, &c.) Regulations 1994 (as amended), as they apply to Scotland, regs. 3, 3A, and 9A.  In terms of regulation 3 the ministers “must exercise their functions which are relevant to nature conservation, including marine conservation” under a number of statutes, including the Marine (Scotland) Act 2010, “so as to secure compliance with the requirements of the Directives”, meaning “the Habitats Directive” and “the Wild Birds Directive”.  I was referred specifically to article 3A(8): “So far as lies within its powers, a competent authority must use all reasonable endeavours to avoid pollution or deterioration of habitats of wild birds in Scotland.” The ministers are “a competent authority”. The provision implements the second sentence of article 4(4) of the Birds Directive (above).

[314]    The Birds Directive obligation to classify SPAs bears to be implemented by regulations 9A(1)—9A(3). Decisions on classification, including classification of sites in the Scottish inshore region, are to be made only on the basis of “relevant scientific information” and the criteria set out in articles 4(1) and 4(2) of the Birds Directive for Annex I species and regularly occurring migratory species respectively.  The ministers’ obligation is expressed to be to “classify as special protection areas such sites (including sites in the Scottish inshore region) as they consider necessary”.  The RSPB submits that the words “as they consider necessary” preservethe narrow margin of appreciation defined by the case law, but no more; and that the words do not derogate from the distinct obligation in terms of regulation 3A(8) (above).

 

Ground B.2: submissions for the ministers
[315]    The ministers cite the European Commission guidance in support of their submission that the process of extending Natura 2000 sites into the marine environment is a recent and challenging endeavour, still far short of completion: the first sentence of the 2007 guidance looks to the future by describing the endeavour as “… a key challenge for EU biodiversity policy in the coming years” [Guidelines for the establishment of the Natura 2000 network in the marine environment: application of the Habitats and Birds Directives (2007), 6, 14 § 2.5 “The challenge of constructing the Marine Natura 2000 Network: Planning a system of marine protected areas”, 27  § 2.11 “Update on implementation of Natura 2000 network in marine areas: an overview of existing marine SPA and SCI”, 33 § 4.1 “Locating and assessing Annex I Habitats”, 56 § 4.5 “Identifying Special Protection Areas for seabirds and other waterbirds”, 58—68 in relation to the technical challenges of gathering and assessing data for marine SPAs, 69 in relation to approaches to site selection guidelines.]

[316]    It is submitted for the ministers that by taking up the marine challenge the ministers are implementing, not breaching Community policy.  There are already hundreds of SPAs in the United Kingdom.  Member states have to choose the “most suitable territories” for species. “Suitability” and comparative “suitability” cannot be determined without investigation, research and analysis using the best available scientific evidence: there is a margin of discretion as to the choice of “the most suitable territories”; and it is possible that suitable territories may, quite properly, never be classified as “most suitable”.  The Forth & Tay dPSA has been identified on the basis of the best available present knowledge [Commission v Austria (Lauteracher Ried) (C-209/04) [2006] ECR I-02755, [2006] Env LR 39  at § AG42; Commission ν Spain (Santoña Marshes) (C-355/90) [1993] ECR I-04221 at § 26; Commission ν Ireland (Birds Directive etc) (C-418/04) [2007] ECR I-10947 at  § 59].

[317]    Forth Islands SPA was classified in 1990; and Fowlsheugh SPA was classified in 1992 [13/91, § 12].  Marine extensions for sea bird breeding colonies were classified in 2009 [3/91, §§ 5, 15].  The authoritative BirdLife International inventory, Important Bird Areas in Europe (Cambridge, 2000) [IBA00], focuses on terrestrial sites: the separate Firth of Forth, Firth of Tay and Forth Islands descriptions are too general to provide a basis for SPA classification [13/91, §§ 35 and 36; cf. Commission v Netherlands (Friesian Ijsselmeer and Hooge Platen) (C-3/96) [1998] ECR I-03031, [1999] Env LR 147 at §§ 40—41]. An SPA cannot be classified until the United Kingdom is in a position to send “all relevant information”, including precise boundaries and conservation objectives, to the Commission in terms of the Birds Directive 79/409/EEC, now 2009/147/EC, art. 4(3).  Marine Scotland has requested further work on the Forth & Tay marine dSPA proposals before the dSPA can be considered for consultation [13/91, § 25; 13/94].

[318]    The ministers’ submissions continue to the effect that the case law cited by the RSPB is of limited assistance for the reason that it deals with terrestrial sites rather than with the new and different challenge of marine sites.  Further, the cases cited are breach proceedings at the instance of the Commission in respect of the proven deterioration of habitats which the competent authorities have permitted to occur in territories which should have been classified as SPAs [cf. Commission of the European Communities v France (Poitevin Marsh) (C-96/98), [1999] ECR I-08531, [2000] 2 CMLR 681 at §§ 41—44].  In the present case there is no question of deterioration of habitats.  There is no evidence that the foraging grounds in the Forth and Tay area have been affected or will be affected by the projects.  It cannot be assumed that the siting of wind turbines results in the deterioration or significant deterioration of avian habitats.  In this connection reference is made to the Thames Array, which is said to have the support of the RSPB, and to the Viking Wind Farm case [Sustainable Shetland v Scottish Ministers 2015 SC (UKSC) 51].

[319]    It is submitted that there are other, specific points of distinction.  In Basses Corbières the SPA classification process had not been initiated and the main concern was for the site as a habitat for Bonelli’s eagles, an Annex I species.  In Santoña Marshes the issue was about the actual destruction of habitats by industrial development, filling in the wetlands to create a sports ground and park, dumping unused building materials, tipping household refuse, discharging untreated water waste, construction of a highway, and so on.  The Ijsselmeer case was about the Dutch government’s wholesale failure to engage with the Community’s SPA classification process: the Birdlife International inventory, Important Bird Areas in Europe (Cambridge, 1989) [IBA89], identified 70 territories with a total area of 797,920 hectares suitable for classification whereas the Netherlands Ministry of Agriculture and Fisheries had drawn up a list of potentially classifiable territories containing 53 sites (corresponding with 57 IBA89 sites) with a total area of 398,180 hectares and without any explanation of the classification criteria [Commission ν Spain (Santoña Marshes) (C-355/90) [1993] ECR I-04221 at § AG4; Commission v Netherlands (Friesian Ijsselmeer and Hooge Platen) (C-3/96) [1998] ECR I-03031, [1999] Env LR 147 at §§ 40—41; Commission v France (Basses Corbières) (C-374/98) [2000] ECR I-10799 at §§ 9, 26].

[320]    The ministers submit that there is no breach of the Birds Directive 79/409/EEC, now 2009/147/EC. The various assessments which have taken place in connection with the Forth and Tay projects in fact give consideration to the data relevant to the Forth & Tay marine dSPA; and the conditions placed on the Inch Cape project and the other developments along with extraneous measures such as, I am told, the ban on sand eel fishing, address the issue of impacts, deterioration and disturbance, on the Forth & Tay marine dSPA.  Awareness of early planning for marine SPAs is evidenced in the environmental statements.  The existence of the Forth & Tay marine dSPA is noted in the Inch Cape Electricity Act section 36 decision.  The matter has been taken into account.

[321]    If and when the Forth & Tay marine dSPA is proposed for classification there will be a review “of the consent decisions” which will involve an assessment of “likely significant effects” in terms of the Conservation (Natural Habitats &c) Regulations 1994 (as amended) reg. 50 [also in substantively similar terms the Offshore Marine Conservation (Natural Habitats &c.)  Regulations 2007 reg. 27; the Conservation of Habitats and Species Regulations 2010 reg. 63].  If the RSPB believes that the case for classification is a good one the RSPB could have raised proceedings to challenge the selection and classification process for the Forth & Tay marine SPA but has failed to do so.  The matter cannot be raised in the present proceedings.  The importance of the distinctive steps taken in proposing a new European site for protection and in the site’s classification as such has been repeatedly stressed by the domestic courts and the Court of Justice [cf. Bown v Secretary of State for Transport, Local Government and the Regions [2004] Env LR 26; Società Italiana Dragaggi SpA v Ministero delle Infrastrutture e dei Trasporti (Foce del Timavo) (C-117/03), [2005] Env LR 31; Sweetman v An Bord Pleanála (C-258/11) ECLI:EU:C:2013:220, [2014] PTSR 1092 at §§ 22—23].

 

Ground B.2: submissions for Inch Cape and the other interested parties

[322]    Inch Cape and the other interested parties adopt the oral submissions of the ministers and add points of their own.

 

Inch Cape
[323]    It is submitted for Inch Cape that the Conservation (Natural Habitats &c) Regulations 1994 (as amended) reg. 50 allows for review of existing consents in the event of subsequent classification but that in terms of regulation 50(4): “[n]othing in this regulation shall affect anything done in pursuance of the decision, or the consent, permission or other authorisation, before the date mentioned in paragraph (1).”  The date mentioned in paragraph (1) is the date of classification.  This protects offshore wind electricity generation projects from subsequent SPA classifications.  In terms of Scottish Planning Policy, the Forth & Tay marine SPA will crystallise when the proposal is published for consultation as a pSPA [7/10, excerpt, Scottish Planning Policy (Scottish Government, 2014), § 210].

 

Seagreen

[324]    Citing Sweetman, Seagreen submits that there is no obligation at a legal or policy level to treat the Forth & Tay marine dSPA as if already classified.  In terms of the Habitats Directive 92/43/EEC art. 4(5) the protective regime under the Habitats Directive 92/43/EEC art. 6(2), (3) and (4) applies when sites are adopted by the Commission on to the list of SCIs: but in terms of the case law, the obligation to protect sites arises when sites are proposed for identification as SCIs on the national list transmitted to the Commission in terms of the Habitats Directive 92/43/EEC art. 4(1) [Sweetman v An Bord Pleanála (C-258/11) ECLI:EU:C:2013:220, [2014] PTSR 1092at §§ 22—24].  As yet there is no proposed SPA [pSPA].  Seagreen continues to the effect that the RSPB is attempting to circumvent the process for classification of SPAs.  In the absence of a declaratory claim for a breach or breaches of directives, and without specification of the alleged breaches and supporting pleas, the case based on the claimed failure to treat the Forth & Tay marine dSPA as if classified is irrelevant in law.

[325]    Seagreen submits that, while the Forth & Tay marine SPA is not “unsupported speculation” [cf. Sustainable Shetland], there will be major revisions to the draft and the SPA is not a foregone conclusion [cf. Sustainable Shetland v Scottish Ministers 2015 SC (UKSC) 51 at § 34 per Lord Carnwath with whom the other justices agreed].  In these circumstances it is for the ministers as decision-makers to decide what weight should attach to the draft proposal.  The fact that no one, including the SNCBs, raised objections to the projects on the basis of the Forth & Tay marine dSPA bears on the weight which the ministers are entitled to attach to the Forth & Tay marine dSPA matter.  The issue is not whether the ministers’ decision on the matter is unconvincing: the issue is whether it can be described as irrational [RSPB v Secretary of State for the Environment, Food and Rural Affairs (Ribble Estuary) [2015] Env LR 24 at § 34 per Sullivan LJ with whom the other members of the Court of Appeal agreed].

[326]    The RSPB case focuses on the Neart na Gaoithe project which is located within the Forth & Tay marine dSPA.  Connectivity with the Inch Cape and Seagreen projects is not so obvious.  No substantive submission is made that the Seagreen decisions should be reduced.  

 

Neart na Gaoithe

[327]    Neart na Gaoithe adopts Seagreen’s challenge to the relevancy of the RSPB’s case on the Forth & Tay marine dSPA.  If the RSPB challenge is well-founded it affects all four developments even though Neart na Gaoithe is the only project within the Forth & Tay marine dSPA.  The challenge is as irrelevant for the Neart na Gaoithe project as it is for the other projects.  As the 2007 guidelines show, the marine environment is complex and three-dimensional: a large number of species is involved [Guidelines for the establishment of the Natura 2000 network in the marine environment: application of the Habitats and Birds Directives (2007)].  In the event of re-assessment all four projects would be involved.  Should it transpire that the Forth & Tay marine dSPA is not classified the whole exercise is speculative.

[328]    It is submitted for Neart na Gaoithe, citing Basses Corbières, that unclassified SPAs do not fall within the terms of the Habitats Directive 92/43/EEC, art. 6(2), (3) and (4).  The Forth & Tay marine dSPA is not classified.  The ministers’ policy of treating unclassified SPAs as classified applies only when the consultation stage is reached.  The Forth & Tay marine dSPA has not reached the consultation stage.  Reference is made to Sweetman and Bown for the proposition that separate and distinct steps are involved in classification [Sweetman v An Bord Pleanála [2015] Env LR 18 at § 22; Bown v Secretary of State for Transport, Local Government and the Regions [2004] Env LR 26, presumably at §§ 25—27, “Implementation in England”, per Carnwath LJ giving the judgment of the Court of Appeal].  In the event that the Forth & Tay marine dSPA is classified it is submitted that the ministers would require to review “the decisions” and to undertake a new “appropriate assessment”.                         

 

Ground B.2: decision on the merits and reasons

[329]    My decision is that the ground B.2 challenge fails on the primary basis but is made out on the alternative basis.

 

Challenge in terms of the Habitats Directive 92/43/EEC

[330]    The primary presentation comes under the heading “Errors deriving from the appropriate assessment.” As a challenge to the “appropriate assessment” ground B.2 is ill-founded and irrelevant in law. The RSPB pleads [Petition, § 30(a) and (b)]:

 

“… the respondents should have treated the Forth and Tay as if it was an SPA and applied the duties under articles 4(1) and 4(2) of the Birds Directive or alternatively the provisions of the Habitats Regulations… In undertaking its appropriate assessment and making its decision [the ministers] should have taken into account the future designation of Forth and Tay as an SPA…”

 

The only conservation measure expressly stipulated for “under articles 4(1) and 4(2) of the Birds Directive” is the classification of SPAs.  For a variety of reasons, which I need not rehearse, I do not believe that it is open to me in these proceedings to find the ministers to be in breach of their obligation to classify the Forth & Tay marine SPA. Moving on, article 4(4) lays down conservation obligations in relation to SPAs; and the RSPB’s Note of Argument focuses on the article 4(4) duties which, I suspect, was meant to be the case all along.

[331]    The Birds Directive 79/409/EEC, now Directive 2009/147/EC, art. 4(4), and the Habitats Directive 92/43/EEC, art. 6(3) as applied by article 7 to the Birds Directive, are mutually exclusive.  If, as the RSPB argues, the Birds Directive 79/409/EEC, now Directive 2009/147/EC, art. 4(4), applies, then the Habitats Directive 92/43/EEC art. 6(3) does not apply; and, if the Habitats Directive 92/43/EEC art. 6(3) does not apply, there can then be no question of the ministers having to make an “appropriate assessment” of significant effects on the Forth & Tay marine dSPA as a matter of statutory obligation. In the absence of such an obligation it cannot be said that the statutory “appropriate assessment” which has been conducted without reference to impacts on the Forth & Tay marine dSPA is flawed.

[332]    I hold that the Habitats Directive 92/43/EEC, art. 6(3) does not apply.  This is the effect of the judgment in Basses Corbières, endorsed by subsequent case law, notwithstanding indications to the contrary in the European Commission guidance quoted above [Commission v France (Basses Corbières) (C-374/98) [2000] ECR I-10799 at §§ 42—59; cf. Commission v Spain (Alto Sil) (C-404/09) [2011] ECLI:EU:C:2011:768 at §§ 97—98].  There is accordingly no statutory obligation on the ministers in terms of the European legislation to make an “appropriate assessment” of the implications of the Inch Cape and other Forth and Tay projects for the Forth & Tay marine dSPA.  This is also, and not unexpectedly, the clear import of the domestic legislation [Conservation (Natural Habitats, &c.)  Regulations 1994 (as amended) regs. 10(1)(d), 48, 50]; and it is the interpretation that informs the ministers’ policy on potential SPAs [7/10, excerpt, Scottish Planning Policy (Scottish Government, 2014), § 210].

[333]    The seminal case Santoña Marshes was decided on 2 August 1993, before the Habitats Directive 92/43/EEC came into effect on 10 June 1994.  In Basses Corbières there was a question as to whether the quarry licence had been applied for before the Habitats Directive 92/43/EEC came into effect.  In Austria (Lauteracher Ried) the procedure for authorisation of the project for the construction of the dual carriageway was formally initiated on 8 March 1994, ten months prior to the date, 1 January 1995, when Austria acceded to the Community and became bound by the Habitats Directive 92/43/EEC [cf. Nomarchiaki Aftodioikisi Aitoloakarnanias and Ors v Ypourgos Perivallontos, Chorotaxias kai Dimosion ergon and Ors (River Acheloos) (C‑43/10) ECLI:EU:C:2012:560, [2013] Env LR 21].  These are not material points of distinction. Basses Corbières was not decided on the issue of timing: it was decided on the basis that the Habitats Directive 92/43/EEC art. 6(2), (3) and (4) applies only to areas already classified as SPAs.  The question of impacts on the Forth & Tay marine dSPA is quite properly not addressed by the ministers as part of the “appropriate assessment” in terms of the Habitats Directive 92/43/EEC art. 6(3) and the Conservation (Natural Habitats, &c.) Regulations 1994 (as amended) reg. 48.  Had the ministers purported to submit the development applications to an “appropriate assessment” of impacts on the Forth & Tay marine dSPA as a matter of statutory obligation, the applicants might well have made a complaint.

 

Challenge in terms of Birds Directive 79/409/EEC, now Directive 2009/147/EC

[334]    The pleadings as explicated by the Note of Argument and, without objection, by the oral submissions are wide enough to support an alternative challenge to the other assessments and the decisions which the RSPB seeks to bring under review.  Applying the ratio of Basses Corbières I hold that the Forth & Tay marine dSPA is an area which should, substantively if not procedurally speaking, be classified as an SPA and is an area, therefore, that falls under the regime governed by the first sentence of the Birds Directive 79/409/EEC, now Directive 2009/147/EC, art. 4(4) unamended by the Habitats Directive 92/43/EEC.  The area should be treated as an SPA for the purpose of considering development proposals: first, because the selection criteria have been met according to the JNCC and SNH, the statutory authorities with the relevant environmental responsibilities; secondly, because the ministers for their part also accept that the selection criteria have been met as is evidenced by the terms of their Inch Cape section 36 decision and their Note of Argument; and, thirdly, because the ministers essentially do not advance any reason why—apart from their own policy as to the point in time at which potential SPAs should be protected and a suggestion that the conservation objectives may be adjusted—the area should not be treated as an SPA.

[335]    The fact that there have been no infringement proceedings and that no breach of a Treaty obligation has been declared in terms of article 226 EC (ex 169) or otherwise is irrelevant. The breach declarations by the Court of Justice in Santoña Marshes, Basses Corbières, and Austria (Lauteracher Ried), for example, followed from failures to classify and to protect areas which, authoritatively or admittedly, satisfied SPA selection criteria. The declarations were ultimately a function of the fact that the criteria were met rather than the other way round [Commission v Netherlands (Friesian Ijsselmeer and Hooge Platen) (C-3/96) [1998] ECR I-03031, [1999] Env LR 147].  I respectfully disagree with anything in Humber Sea Terminal which might be taken to suggest that there must be a breach of a Treaty obligation, or a failure to comply with a reasoned opinion of the Commission in the time allowed, or a breach declaration by the Court of Justice, or a breach of the a Birds Directive 79/409/EEC, now 2009/147/EC, itself before the substantive obligations in terms of the Birds Directive 79/409/EEC, now 2009/147/EC can apply [Humber Sea Terminal Ltd v Secretary of State for Transport [2006] Env LR 4].

[336]    There is a teleological tendency in the reasoning [Commission ν Ireland (Birds Directive etc) (C-418/04) [2007] ECR I-10947 at §§ 65 and 84; Commission v France (Poitevin Marsh) (C-96/98), [1999] ECR I-08531, [2000] 2 CMLR 681 at §§ AG19--AG20].  This can be justified from the birds’ point of view, as it were, and it is implicit in the recitals of the preamble to the Birds Directive 79/409/EEC, now 2009/147/EC. A legal justification is that, if the timetable for implementation had been adhered to, sites deserving protection would have been classified long before.  There is also a communitarian justification. Advocate General Fenelly explained the matter in the Lappel Bank case [§ AG73]:

 

“73. It would also follow from that interpretation [proposed by the United Kingdom] that member states which failed to designate the most suitable territories within the deadline for the implementation of the Birds Directive—April 1981 in the case of the United Kingdom—would thereby enjoy a considerable advantage, particularly in terms of the economic cost of taking compensatory measures for declassified special protection areas, over those which had complied with article 4(1) and (2) [of the Birds Directive 79/409/EEC] more promptly. That state of affairs would equally offend against the requirement of the uniform application of the Directive, referred to above at paragraph 68.”

 

 

 

To countenance delayed classification, whether the reasons for delay are worthy or unworthy, is to jeopardise the achievement of Community objectives, to authorise possibly irreparable loss of habitats and species and to sanction distortions of competition, things which cannot be allowed [see also Commission v France (Basses Corbières) (C-374/98) [2000] ECR I-10799 at §§ AG16, AG28—AG31, §§ 12—13; Commission of the European Communities ν France (Seine Estuary) (C-166/97) [1999] ECR I-01719 at §§ 11—13; Società Italiana Dragaggi SpA v Ministero delle Infrastrutture e dei Trasporti (Foce del Timavo) (C-117/03), [2005] Env LR 31 at § AG27; Bund Naturschutz in Bayern eV and Ors v Freistaat Bayern (C-244/05) [2006] ECR I-08445 at §§ AG17—AG28, AG32—AG36; Commission ν Ireland (Birds Directive etc) (C-418/04) [2007] ECR I-10947 at  §§ 76, 101].

[337]    As the ministers submit, the European Commission Guidelines for the establishment of the Natura 2000 network in the marine environment (2007) envisage a programme of future classification. I reject the inference which the ministers invite me to draw, namely that a qualifying marine area cannot claim protection until it is actually classified or at least proposed for classification and consulted on as a pSPA.  The inference is contrary to the case law. In any event the guidelines are concerned with the classification challenge in the offshore region, that is, beyond the limits of the territorial sea.  The Forth & Tay marine dSPA is proposed for an area which is largely within the limits of the territorial sea; and David Mallon describes the marine dSPA as “in effect… an extension of existing SPAs”.  The ministers themselves have a policy of anticipating classification by giving pSPAs the same protection as classified sites [Scottish Planning Policy (Scottish Government, 2014), § 210]. There might be a question as to whether this “less favourable” policy is consistent with the Habitats Directive 92/43/EEC art. 7 case law: but that is not the issue.

[338]    The principle underpinning the policy is the same as the thinking which informs the case law, namely that areas which are SPAs in potentia deserve provisional protection at least to the same extent as classified areas. In any event, the second sentence of article 4(4) of the Birds Directive 79/409/EEC, now 2009/147/EC, requires member states also to “strive to avoid pollution or deterioration of habitats” outside classified SPAs.  Assuming no greater protection, the obligation is particularly suited to safeguarding potential SPAs.  The duty is placed upon the ministers in domestic law by the Conservation (Natural Habitats, &c.) Regulations 1994 (as amended), reg. 3A(8), quoted above.

[339]    None of the cases cited to me answers the question how plans and projects which are “likely to have a significant effect” are to be assessed when the area in question satisfies or may satisfy the SPA selection criteria but has not yet been formally classified or even proposed for classification, in the technical sense.  (Since the hearing I have noticed a decision in which the question arose, Savage v Mansfield DC [2015] EWCA Civ 4, but the case does not assist directly in resolving the issue in the present proceedings.)  A version of the conundrum was identified in the Lappel Bank case where the issue was whether the Lappel Bank tidal mudflats could be excluded from the Medway estuarine habitat proposed for classification.  The argument for exclusion was that the mudflats were required for expansion of the port of Sheerness, a matter of economic importance.  In submissions it was said to be odd that the minister was compelled by the Birds Directive 79/409/EEC art. 4(1) and (2) to disregard economic considerations and to classify Lappel Bank as part of the SPA with the effect of empowering himself—it was a male minister—under the Habitats Directive 92/43/EEC art. 6(4), once classification had taken effect, to derogate from the protective regime (which he had instituted) for “imperative reasons of overriding public interest , including those of a social or economic nature” [R v Secretary of State for the Environment ex parte Royal Society for the Protection of Birds (RSPB) (Lappel Bank) [1997] Env LR 431 at 438 per Lord Jauncey; see also R v Secretary of State for the Environment ex parte Royal Society for the Protection of Birds (RSPB) (Lappel Bank) (C-44/95), [1997] QB 206 at 220, at § JR56; Stadt Papenburg v Germany (C-226/08) [2010] ECR I-00131, [2010] Env LR 19 at § AG35].

[340]    So in the present case it might seem paradoxical to say that, at this point in time, the ministers are legally obliged to assess the effects of the projects on the Forth & Tay marine dSPA, applying the Birds Directive 79/409/EEC, now 2009/147/EC, art. 4(4) first sentence, presupposing that within a few months the dSPA will become a pSPA and then an SPA; and that when the dSPA does become a pSPA and then an SPA, the ministers will be constrained by their policy and thereafter bound by the Conservation (Natural Habitats &c) Regulations 1994 (as amended) reg. 50 to undertake an “appropriate assessment” applying the arguably more flexible criteria of the Conservation (Natural Habitats &c) Regulations 1994 (as amended) regs. 48 and 49 which give effect to the the Habitats Directive 92/43/EEC, art. 6(3) and (4) [cf. Humber Sea Terminal Ltd v Secretary of State for Transport [2006] Env LR 4].

 

The Forth & Tay marine dSPA: common law obligations

[341]    I shall return to the question of the oddity of the situation when considering the question of the remedy. What I have to decide at this stage is whether the ministers have unlawfully omitted to have regard to a material factor, or to material factors in exercising their decision-making functions, whether they have exceeded their statutory powers or failed to implement their statutory duties in making their decisions. My answer must be “yes” even if there is uncertainty as to how precisely the matter, namely the existence and terms of the Forth & Tay marine dSPA or the data underpinning it, should be taken into account.  This “taking into account” is a matter both of gathering or receiving relevant information and of assessing its effect.  The reference in the RSPB’s consultation response of 26 March 2014 to “identified marine areas that meet the criteria for SPA designation” is enough to bring the matter within the definition of “environmental information” for the purpose of the Electricity Works EIA Regulations.  In any event, the prospect of a marine SPA or marine SPAs in the Forth and Tay area is also acknowledged in the Inch Cape environmental statement and, I am told, in the environmental statements for the other projects.

[342]    The ministers, in the shape of MS, a directorate of the Scottish Government, were officially aware of the Forth & Tay marine dSPA well before the Electricity Act 1989 section 36 decision was finalised and well before the Marine Works EIA Regulations environmental impact assessment was made.  Among the things that the ministers knew from the dSPA citation (above) are that the area in question is a habitat (or a collection of habitats) for bird species, that the area supports wintering populations of European importance of five Annex I species and that the area supports populations of European importance of seven regularly occurring migratory species not listed in Annex I during the breeding season.  With this knowledge it seems to me that the minimum that the ministers were bound to do was to process the data as “additional information” and to require Inch Cape to provide “further information”, about the likely significant effects on the environment including the Forth and Tay habitat or habitats and the supported bird populations, all in terms of the Electricity Works EIA Regulations.  At the very least this is a matter of rational decision-making at common law within the applicable statutory frameworks [Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223].

 

The Forth & Tay marine dSPA: statutory obligations

[343]    I would also understand it to be a matter of statutory duty in terms of the second sentence of article 4(4) of the Birds Directive 79/409/EEC, now Directive 2009/147/EC, and regulation 3A(8) of the Conservation (Natural Habitats, &c.)  Regulations 1994 (as amended).  This duty depends on nothing more than the area being a habitat or collection of habitats for wild birds: but the duty assumes substantial importance given the citation data about Annex I species and bird populations of European importance.  Pushing the case law to what seems to be the logical conclusion, it is also a matter of obligation in terms of the first sentence of article 4(4) of the Birds Directive 79/409/EEC, now Directive 2009/147/EC, on the basis that the Forth and Tay area should be treated as an area satisfying the criteria for classification though not formally classified.  Possibly the most important aspect of the first-sentence obligation is the obligation “to take appropriate steps to avoid… any disturbances affecting the birds” etc.

[344]    Going further, the Conservation (Natural Habitats, &c.) Regulations 1994 (as amended) impose a number of relevant duties. In terms of regulation 3 there is a duty to “secure compliance with”, and there is a duty to “have regard to” the “requirements of the Directives”.  The Habitats Directive 92/43/EEC and Birds Directive 79/409/EEC, now Directive 2009/147/EC, are “the Directives” in question.  Taking the less onerous duty first, the ministers as a “competent authority in relation to the Scottish marine area” are bound in terms of regulation 3(1) and (3) when exercising their nature conservation functions to “have regard to the requirements of the Directives so far as they may be affected by the exercise of those functions”.  Patently the ministers have noticed the existence of the Forth & Tay marine dSPA in the passage quoted above: but they have failed, equally plainly I would say, to “have regard to the requirements” of article 4(4) of the Birds Directive 79/409/EEC, now Directive 2009/147/EC, and article 7 of the Habitats Directive 92/43/EEC as interpreted by the Court of Justice, when exercising their conservation functions in this case.  I say this without prejudging what the outcome of “having regard to the requirements” might be.

[345]    Turning back to the peremptory provision, the ministers as a “competent authority in relation to the Scottish marine area” are bound in terms of regulation 3(1) and (2) when exercising their nature conservation functions “to secure compliance with the requirements of the Directives” and in particular when exercising their nature conservation functions under the self-same Conservation (Natural Habitats, &c.)  Regulations 1994 (as amended) and 24 specified enactments.  One of the enactments specified is the Marine (Scotland) Act 2010.  In this case the ministers are exercising nature conservation functions when considering and granting applications for Marine (Scotland) Act 2010 section 21 licences.  By section 27 of the 2010 Act it is provided that: “In determining an application for a marine licence (including the terms on which it is to be granted and what conditions, if any, are to be attached to it), the Scottish Ministers must have regard to (a) the need to (i) protect the environment…”  There is reciprocal provision in the Marine Works EIA Regulations [Marine Works EIA Regulations regs. 2 “relevant legislation”, 22(b) and (c)(i)].

 

Processing the Forth & Tay dSPA data as environmental information

[346]    Although the Inch Cape Marine Works EIA Regulations assessment process was not in final form until September 2014 the assessment carried out for the project in terms of regulation 22 of the Marine Works EIA Regulations for the purpose of the section 21 determinations contains no reference to the Forth & Tay marine dSPA or to the data contained in the “departmental brief” and the “regulation 33 package” presented to the ministers in July 2014.  I take the view that the failure to give any consideration to the dSPA data in the regulation 22 environmental impact assessment represents a failure to comply with the obligation to “have regard to” and to “secure compliance with” the requirements of the Birds Directive 79/409/EEC, now Directive 2009/147/EC, art. 4(4), both sentences, and article 7 of the Habitats Directive 92/43/EEC as interpreted by the Court of Justice.

[347]    Regulations 14 and 15 of the Marine Works EIA Regulations give the ministers power to require applicants to provide “further information” and to supply information to applicants.  These powers were and are available to the ministers to be exercised, in the interests of rational and lawful decision making, to bring the issue of the Forth & Tay marine dSPA or the data supporting it into the Marine Works EIA Regulations reg. 22 consenting process. In fact, as previously stated, one and the same environmental statement was used for both the environmental impact assessment in terms of the Electricity Works EIA Regulations and the environmental impact assessment in terms of the Marine Works EIA Regulations.  A requirement for “further information” under either set of regulations would have fed or would feed into both assessments.  For all of these reasons, separately and together, I conclude that the ministers’ decisions are flawed.  The decisions in question are the consent in terms of the of the Electricity Act 1989 section 36, of which the environmental impact assessment in terms of the Electricity Works EIA Regulations is an integral part, and the environmental impact assessment in terms of Marine Works EIA Regulations reg. 22. For completeness no submission is made about failure to comply with the EIA Directive 2011/92/EU (now amended by Directive 2014/52/EU).  There is scope for debate about the matter.

[348]    It follows that I reject the Seagreen submission that the existence of the Forth & Tay marine dSPA with its supporting data is simply part of the factual matrix to which the ministers as administrative decision-makers are entitled to accord more or less weight, within reason, as they see fit.  I also reject the submission that significance attaches to the absence of representations from the statutory nature conservation bodies [SNCBs], that is SNH and the JNCC, about the Forth & Tay marine dSPA.  I might attach significance were I told that the SNCBs feel able to release site selection advice which the ministers regard as confidential and to contradict the ministers’ policy as to the stage at which pre-classification protection applies [cf. Savage v Mansfield DC [2015] EWCA Civ 4]. The Inch Cape environmental statement states in terms that “SNH is only able to provide advice... in respect of existing SPAs”.  I expect that would remain true until the ministers were to require the issue of the Forth & Tay marine dSPA to be addressed.

[349]    I also reject the ministers’ submission that pre-classification and pre-designation protection of sites cannot be offered before, in the case of SPAs, the stage of publication for consultation and before, in the case of SCIs/SACs, the stage of inclusion in the national list submitted to the Commission.  I accept that there are administrative reasons for having a policy which specifies the stage, a readily identifiable stage, at which pre-classification and pre-designation protection comes into play; I accept that it is convenient to have the same stage or an analogous stage for SPAs on the one hand and SCIs/SACs on the other; and, ignoring the legal niceties, I can understand why the ministers would find it useful to apply the same Habitats Directive 92/43/EEC art. 6(2), (3) and (4) protection regime across the board.  However, the stages chosen by the ministers for applying administrative protection are, in conservation terms, arbitrary; the precise timing is subject to ministerial control; and the policy cannot override a legal duty, if there be one, to conserve sites in those exceptional cases where protection is required before administrative measures take effect.

 

Case law on environmental assessment before classification
[350]    None of the case law founded on by the ministers and the interested parties teaches that development impacts on possible SPAs cannot be assessed before the public consultation stage of the classification process. The only United Kingdom case, Bown, is about the Taw and Torridge Estuary site that was included in the JNCC’s 1990 list of sites that “definitely qualify” for SPA status, a site which dropped out of the picture from 1994 without having progressed further towards actual classification, and which was excluded from the JNCC’s “definitive list” of sites in 2001.  At the point in time in 2002 when the planning inspector had to make his decision about the Barnstaple bypass “the site was not an SPA and was not likely to become one”.  This was on the basis of “better scientific evidence”, evidence which persuaded the RSPB that there were insufficient data to support classification.

[351]    Further, the particular passage relied on in the Bown case is undermined by a mis-reading—albeit an understandable misreading given the original syntax—of Planning Policy Guidance Note No. 9 [PPG9], paragraph 13, as it then was, the mis-reading being masked in the judgment by ellipsis: “potential” SPAs, unlike “candidate” SACs, are not “included in the list sent to the European Commission”. [5]  Once classification has taken place standard-form site details of SPAs are submitted to the Commission.  Unquestionably “[c]lassification as an SPA is a legal step with important consequences, both for conservation and for those whose land is affected”—but not as important as the Court of Appeal was led to think.  As explained above, before classification, the policy in England & Wales as in Scotland is to treat sites proposed for public consultation, “potential” SPAs in the language of England & Wales, as classified SPAs “for the purpose of considering development proposals affecting them”. In Humber Sea Terminal the Secretary of State treated what is described as “a potential SPA” as if it were a classified SPA in accordance with the policy PPG9. This opened the way to approval of the proposed development of five new roll-on roll-off berths for “imperative reasons of overriding public interest” in terms of the Habitats Directive 92/43/EEC art. 6(4) and the Conservation (Natural Habitats &c) Regulations 1994 reg. 49 [Humber Sea Terminal Ltd v Secretary of State for Transport [2006] Env LR 4].  Bown does not answer the question of interest [Bown v Secretary of State for Transport, Local Government and the Regions [2004] Env LR 26, at §§ 9, 25—27, 29, 30, 33(iii), 43, 45].  

[352]    The European cases cited concern SCIs/SACs, which are subject to a different listing and designation regime [Società Italiana Dragaggi SpA v Ministero delle Infrastrutture e dei Trasporti (Foce del Timavo) (C-117/03), [2005] Env LR 31, at § AG21]; and the decisions are about the protection of candidate sites—“candidate” being a term of art—in the interval between national listing and adoption by the Commission, not about protection before national listing [Società Italiana Dragaggi SpA cit sup; Sweetman v An Bord Pleanála (C-258/11) ECLI:EU:C:2013:220, [2014] PTSR 1092]. However, the question of pre-listing protection is touched on in two advocate general opinions. In her opinion, 8 July 2004, Advocate General Kokott narrated the range of views expressed in the Foce del Timavo  case [at §§ AG15—AG16].  My understanding is that the Commission argued (and may still argue) for pre-listing provisional protection where, or as soon as possible after, sites are identified [Managing Natura 2000 Sites: the provisions of Article 6 of the ‘Habitats’ Directive 92/43/EEC (European Communities, Luxembourg, 2000, revised), §§ 1.4.1, 1.4.2].     

[353]    This was also the view of the late Advocate General Geelhoed, 18 May 2006, in Bund Naturschutz in Bayern, one of the cases cited in Sweetman [Bund Naturschutz in Bayern eV and Ors v Freistaat Bayern (C-244/05) [2006] ECR I-08445 at §§ AG17—AG28, AG32—AG36, particularly at AG27, AG28]:

“27.  Member States must comply strictly with the obligation to refrain from any activities liable seriously to compromise the result prescribed by the Habitats Directive, since the timetable as laid down by the Habitats Directive has not been adhered to. According to that timetable, the European ecological network should have been created by 10 June 2004. If that timetable had been followed, the sites concerned would have already benefited from the protection afforded by Article 6 of the Habitats Directive. In its written observations, the Commission stated that the timetable had not been adhered to because there had been a considerable delay in the Member States proposing sites.

 

28.      The longer a Member State delays in drawing up a list of sites of Community importance and designating special areas of conservation, the more such sites require extensive protection. In this respect, it is irrelevant whether or not the sites are sites which have already been included in the national list provided to the Commission pursuant to Article 4(1) of the Habitats Directive or sites which, on account of their characteristics, should be included in the Community list but which have not yet been proposed by the Member State to the Commission as sites of Community importance for the purposes of the European Natura 2000 network. In both cases, a Member State must ensure that the relevant ecological interest which the site represents at national level is maintained until the Commission has adopted the list of sites of Community importance.”

 

The Court of Justice did not require to rule on the point because the actual issue in Bund Naturschutz in Bayern was about the legal basis for, and the content of protective measures for habitat types and habitats of species already on the national list.  Sweetman cites the decisions in Foce del Timavo and Bund Naturschutz in Bayern for the proposition that member states have a duty to safeguard the ecological interests of sites on the national list proposed to the Commission pending the Commission’s decision on adoption. The Sweetman judgment does not therefore add, one way or the other, to the jurisprudence on pre-listing provisional protection [Sweetman v An Bord Pleanála (C-258/11) ECLI:EU:C:2013:220, [2014] PTSR 1092 at §§ 22—24].

[354]    The Inch Cape project is intended for a site to the north and east of the Forth & Tay marine dSPA.  It may be, for all I know, that the Inch Cape project by itself will have a small, possibly negligible impact on the Forth & Tay marine dSPA habitat or collection of habitats and the species populations supported in that area: but in terms of the Marine Works EIA Regulations sched. 3, 3(2)(c), the environmental statement is bound to include a description of the “likely significant effects of the project and the regulated activity on the environment” including “cumulative effects” in the sense of “in-combination” effects; and the Marine Works EIA Regulations reg. 22 assessment bears, at least in places, to be an assessment of the effects of all four projects including the Neart na Gaoithe project alone and in combination.  Figure 1 in the regulation 22 assessment is a location map showing all projects.  The Neart na Gaoithe project is proposed to be sited within the Forth & Tay marine dSPA.

 

Ground B.2: the remedy

[355]    In deciding the remedy if any, it is proper to have regard to the nature of the decision-making omissions as well as the likely effect, taking account of all other relevant circumstances.  Having weighed these matters, my conclusion is that it is proper to set aside the Inch Cape Electricity Act 1989 section 36 consent decision and the Inch Cape Marine Works EIA Regulations reg. 22 consent decision in respect of the failure to give consideration to protection of conservation interests in the Forth & Tay marine dSPA.

 

Ultra vires decisions
[356]    As to the qualitative aspect, I hold that the ministers have acted ultra vires in respect of each and all of the decision-making omissions referred to above, measuring the decision-making against the applicable statutory provisions, European and domestic, and applying the Wednesbury test [Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223].  Non-compliance with European Law is also ultra vires in terms of the Scotland Act 1998 (as amended) section 57(2) which disables any member of the Scottish Government from doing any act which is incompatible with EU law.

[357]    The flaws are matters of substance rather than defects in procedure. As to substance, I reject the submission for the ministers that the issue of impacts on the Forth & Tay marine dSPA has been addressed, practically speaking, even though there may be no express words to that effect.  In saying this I have had regard to the terms of the various decisions and assessments, to the conditions placed on the developments and to the extraneous measures drawn to my attention, in particular the ban on sand eel fishing.  It is enough in this connection to note the absence of any sort of reference to impacts on “wintering populations of European importance of five Annex I species”.  However, the ministers’ assertion is significant because it implies that the current processes, if properly carried out, are a suitable vehicle for the assessment of impacts on the Forth & Tay marine dSPA.  With that I agree.

[358]    The scientific case presented by the SNCBs and the absence of contrary ecological evidence are enough to support my finding that the Forth & Tay marine dSPA is a site that deserves environmental protection.  In the absence of evidence casting scientific doubt on the SNCBs’ case, I accept that it is highly likely that the Forth & Tay marine dSPA will be classified.  This finding is supported by the information from the documents presented and the case law tending to show that the vast majority of conservation sites identified by SNCBs end up being classified or designated.

[359]    The ministers are correct that there has been no breach of the Birds Directive 79/409/EEC, now Directive 2009/147/EC, of the kind that figures in the European cases cited above—no motorways built in avian habitats, no waste dumped, no effluent discharged, no limestone quarrying, no wetlands drained, etc: but, as the ministers’ own policy SPP § 210  testifies, the requirement for pre-classification assessment of future development effects, which is the issue here, is not dependent on prior deterioration of habitats let alone admitted or established breaches of the legislation.  Although no case directly in point has been cited to me, I am satisfied that the clear tendency of the European jurisprudence is to require an assessment of environmental effects for sites that “deserve”—to use the Commission’s term—protection.  I have already concluded, judging the matter at this stage on the information currently available, that the Forth & Tay marine dSPA is a site that deserves protection.

 

Post-consent “appropriate assessment”

[360]    I recognise that, in the event of classification, the environmental consenting regime which operates in Scotland gives the ministers another opportunity, in terms of the Conservation (Natural Habitats &c) Regulations 1994 (as amended) reg. 50(1) and (2), to consider the environmental impacts on the Forth and Tay area.  Assuming, as it is proper to do, good faith and reasonable efficiency on the part of the ministers, it can be expected that any such review by way of “appropriate assessment” will be completed before construction starts and before there is any possibility of deterioration of habitats and disturbance of species populations.  Can it be argued that the availability of the regulation 50 review means that there has not yet been an omission by the ministers, any definitive failure, for example, “to have regard to”, or “to comply with” the provisions of the Conservation (Natural Habitats, &c.) Regulations 1994 (as amended)?  I do not think so. I do not accept that the regulation 50 procedure is a substitute for an assessment at this stage; nor do I accept that the availability of a regulation 50 review is a compensatory factor that means the remedy should be refused.

[361]    There are problems associated with regulation 50 of the Conservation (Natural Habitats &c) Regulations 1994 (as amended).  First, a difficulty is created by the wording of the source legislation, at least where both an “appropriate assessment” and an environmental impact assessment are involved.  The EIA Directive 2011/92/EU, by recital (2) of the preamble, speaks of assessment “as soon as possible”; and art. 2(1) requires the assessment of environmental effects to be carried out “before consent is given”:

 

“Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects.”

 

 

The qualification, “before consent is given”, is carried through by various means into the domestic legislation.  No reason has been advanced as to why the words should not apply literally to the assessment of the Forth & Tay marine dSPA which, as I have already found, deserves protection at this stage.  The power to review consents, given or purportedly given by regulation 50, is not found in the Habitats Directive 92/43/EEC and possibly for good reason: it is questionable whether the power to revoke consented developments, perhaps built but not-yet-operational developments, offers the same level of environmental protection as the power to grant or refuse development consent at the application stage [cf. Commission v United Kingdom (C-6/04) [2005] ECR I-09017, [2006] Env LR 29 at §§ AG39—AG50].

[362]    The second difficulty is that the post-consent “appropriate assessment” proposed by the ministers in terms of regulation 50 forecloses the possibility of public participation.  I say this on the basis of the domestic provisions for “appropriate assessment”—by which, in terms of regulation 48, public engagement is at the discretion of the ministers—and on the basis of the ministers’ attitude to consultation in connection with the “appropriate assessment” which is the subject of the present challenge [6/4, “appropriate assessment”, 2—3, quoted at paragraph 28 above].  The ministers’ view is that the environmental impact assessment processes give an adequate opportunity for participation: but, of course, the regulation 50 procedure makes no provision for an environmental impact assessment.  The ministers do not say that they will involve the public in a regulation 50 review.

[363]    It is wrong, or at least contrary to the principle of participation in environmental decision-making, that the ministers should have power to dispense with public consultation in connection with post-consent “appropriate assessments” in a situation where there should have been pre-consent consultation, but was not.  Effects on the Forth & Tay marine dSPA ought to have been considered in the assessments for the Inch Cape and other projects under the Electricity Works EIA Regulations and the Marine Works EIA Regulations.  The lack of consultation might not be problematic but for the scale of the exercise and the fact that the ministers’ “appropriate assessment” methods are controversial.  As to the scale of the exercise, I agree with the Neart na Gaoithe submission that a regulation 50 “appropriate assessment” would have to involve all projects for in-combination effects.

[364]    I say “controversial” in view of the oral and written submissions, the affidavit evidence for the RSPB and for the ministers about methodology, Professor Green’s paper, Misleading use of science, and the minute of the “escalation meeting” of 24 June 2014 between the Marine Scotland team [MS-LOT and MSS] on one side and representatives of the SNCBs on the other side.  It was recognised that there would be “some reputational risk” for the SNCBs if the ministers were to proceed on the basis of scientific advice from MSS—the next but one sentence is redacted [6/37, affidavit of C Nathan; 6/63, affidavit of A McCluskie; 13/92, affidavit of J Wilson; 13/93, affidavit of F Bennet, MSS; 6/17, Professor R Green, Cambridge University/RSPB, Misleading use of science; 6/71, Forth and Tay Ornithology Escalation Meeting Final Minutes].

[365]    My view about the relationship between environmental impact assessments and “appropriate assessments” is set out in the discussion of Ground A (above). Where there are both kinds of assessment, as in this case, the “appropriate assessment” effectively “piggy-backs” on the environmental impact assessment.  The “appropriate assessment” supplements the environmental impact assessment by applying an additional layer of decision-making including a statutory test that focuses on specific environmental effects. Are there situations in which only an “appropriate assessment” need be undertaken?  There is case law in England & Wales which could possibly be taken to support the idea, typically with small scale annex II developments where the only issue is about the impact on a protected site [eg R (on the application of Devon Wildlife Trust) v Teignbridge DC [2015] EWHC 2159 at § 125].  The correct understanding is that, if the outcome would demonstrably have been no different, it is open to the Court after the event to treat the failure to carry out an environmental impact assessment as an excusable procedural irregularity [R (Champion) v North Norfolk District Council [2015] 1WLR 3710].  In my judgement, excusing the failures to bring the Forth & Tay marine dSPA into the environmental impact assessments is not an option.  I say this notwithstanding the argument that, in the event of post-consent classification, the only outstanding issue will be the question of impacts on the Forth & Tay marine SPA.       

[366]     Regulation 50 assumes that site protection before classification is less strict than after classification.  This assumption is not wholly in step with the European jurisprudence. The assumption operates via regulation 50 to permit review and revocation of consented developments: it does not operate to permit review and authorisation of applications which have been refused. There is scope for further amending the Conservation (Natural Habitats &c) Regulations 1994 (as amended) to cater for pre-classification refusals as well as pre-classification consents. There might also be advantage in clarifying that regulation 49 (“considerations of overriding public interest”) applies to regulation 50(1) reviews.  If the domestic regulations do not provide for all possible contingencies resulting from the application of European jurisprudence, that is not necessarily the fault of the European jurisprudence.

[367]    It might be argued that applying the Birds Directive in a situation like the present one effectively embargoes development.  If that is the case—and it depends on the outcome of full environmental impact assessments—it is not necessarily a bad thing.  A precautionary embargo is not inconsistent with the objectives of the legislation; and it is an incentive to progress classification so as to reach at least the consultation stage on the proposal as to whether there should be classification and, if there is to be classification, what the site boundaries and conservation objectives are to be.

 

Whether the EIA decisions might, not inconceivably, be different

[368]      The Forth & Tay marine dSPA extends to an area of 3,129.78 km².  The departmental brief gives the following account of the process of identification of the site boundaries [6/66, 8]:

“A pSPA [sic] boundary identified on the basis of numbers and distribution of red-throated divers also encompassed the majority of populations of common scoter, velvet scoter, long-tailed duck, common eider and red-breasted merganser. The two individual areas of the Firth of Forth and Firth of Tay were then linked by the area specifically identified for puffin during the breeding season. This area then encompassed the remainder of the 21 species although specific areas were also identified for terns, shags and gannets.”

 

The distribution maps in the departmental brief show the heaviest concentrations of most species within the inner estuary areas.

[369]    As I read the maps there is a comparatively small area bounded with a red line labelled “composite indicative boundary stage 1.1 and 1.4 species” that lies just inshore of the Neart na Gaoithe project site.  The gannet distribution map (breeding season) does not appear to show a major concentration of that species in the Neart na Gaoithe project site. There is no distribution map for kittiwake.  The text states [6/66, 22]:

 

“The concentration of kittiwakes (over 13,000) birds in the outer reaches of the Firth of Forth and Tay Bay complex is the largest recorded during this study with the density usually varying between 5—10 birds/km² but exceptionally in specific localities up to 43.4 birds/km².”

 

 

The seaward extension of the marine dSPA, which incorporates the Neart na Gaoithe project site, includes at least a part of the area containing the major concentration of puffins during the breeding season [6/66, 25, Figure 12]. 

[370]    On the basis of this information, it is not inconceivable that the environmental impact assessments for the Inch Cape and other Forth and Tay wind farm projects might be different and might result in different decisions on development authorisation were the decisions to be re-made.  As I understand the information in the departmental brief the Neart na Gaoithe project is the project most affected by the Forth & Tay marine dSPA.  It could be particularly useful to have an assessment of the effect of the construction works for the Neart na Gaoithe project.  If the environmental impact assessments in terms of the Electricity Works EIA Regulations and the Marine Works EIA Regulations are to be re-made there is no reason why they should not include a “shadow appropriate assessment” in respect of impacts on the Forth & Tay dSPA.

 

Commission v Bulgaria (C‑141/14), 14 Jan 2016

[371]    Since this section of the Opinion relating to Ground B.2 was completed in draft I have noticed new case law about wind farms and birds from the Court of Justice of the European Union.  The decision is European Commission v Bulgaria (Kaliakra and Belite Skali) (C‑141/14) ECLI:EU:C:2016:8, 14 January 2016.  By email dated 1 April 2016 my clerk asked parties whether they wished me to take account of the Kaliakra decision and whether they wished to have a further hearing. By email with attachments dated 6 May 2016 agents for Seagreen, on behalf of all interested parties, replied in the following terms:  

 

“The attached text and plan have been agreed between the parties. In light of the information provided in the text and plan, parties agree that no further procedure is needed but are content for his Lordship to determine this issue. If the case of Commission v Bulgaria may play a significant part in the determinative reasoning of the Court, the proper course would be for the Court to appoint the cause to a By Order or to invite short written submissions. Otherwise, parties are content to rest on the submissions already before his Lordship.”

 

 

There is a copy of the plan or map between pages 4 and 5 of the hard copy Opinion. The map shows the locations of the Fowlsheugh and Forth Islands SPAs, the locations of the Inch Cape, Seagreen Alpha, Seagreen Bravo and Neart na Gaoithe projects and the area covered by and boundaries of the Forth & Tay dSPA. The location map is appended.

[372]    The agreed note attached to the email is in the following terms:

 

“In order to assist the Court’s understanding of how the issues dealt with in the case of Commission v Bulgaria may relate to the factual position in the instant case, the attached plan has been prepared showing the locations of the areas identified as IBAs, as SPAs, and the draft boundaries of the Outer Firth of Forth and Tay Bay Complex marine dSPA. As indicated on the plan (immediately below the first “F” of “Firth of Forth SPA”), there is one island within the Firth of Forth that is an IBA but not an SPA. This is the island of Inchkeith. However, the Petitioners place no particular reliance upon the fact that Inchkeith has not been classified as an SPA. Their argument continues to relate to the wider area shown on the plan as a dSPA. The parties acknowledge that the boundaries of the Outer Firth of Forth and Tay Bay Complex marine dSPA as shown on the plan are not fixed at this time but they depend solely upon ecological/ornithological considerations. The boundaries will not be finalised until after the dSPA consultation has been carried out and further discussion held but their determination will be limited to ecological and ornithological considerations.  The Petitioners continue to rely on what is considered by them to be a lack of progress in this respect.”

 

 

I am content to decide Ground B.2 on the submissions already made having regard to the authorities already cited including other authorities referred to in the already-cited authorities. The decision in Commission v Bulgaria (C‑141/14), 14 January 2016, does not play a part in the determinative reasoning.

 

Ground C: reasons for rejecting advice and representations

[373]    Ground C is a “reasons” challenge directed to the adequacy of the reasons given in the decisions and “appropriate assessment” for not accepting the advice of the SNCBs about the adverse impact on site integrity and for rejecting the representations of the RSPB about the same matter. The complaint under Ground C is sufficiently dealt with in connection with Ground B.1 and I shall not address it separately.

 

Residual issues and final orders
[374]    There remains the question whether the remedy of setting aside the decisions complained of by decree of reduction is proportionate; and there are also residual questions about precisely how the case should be disposed of given my decisions on the various grounds of review.

 

A proportionate remedy 

[375]    Having regard to all relevant factors and all interests, including the interests of sound administration and the economic and financial factors advanced by the interested parties, I cannot be persuaded that it is fair and reasonable to leave the Inch Cape Electricity Act 1989 section 36 decision and the Inch Cape Marine Works EIA Regulations reg. 22 consent standing.  In the Walton case £115 million of public money had already been spent on preparatory work and property acquisitions; and uncertainty and blight would have been caused by quashing the orders in question [Walton v Scottish Ministers 2013 SC (UKSC) 67 at § 105 per Lord Carnwath].  There is nothing of that sort or on that scale in the present case. In the present case the work already done has not been wasted. I do not see that the conduct of the RSPB is to be criticised.  The ministers had ample notice that the issues now adjudicated were highly contentious and it was open to them to accommodate the concerns of the RSPB about consultation and possibly about other matters in a lawful way. On the material presented to me, the dominant public interest in the present context, as represented by the ministers’ policy on sustainable growth and renewable energy and by the environmental legislation, lies in the expansion of wind electricity generation on the basis of defensible environmental decision-making.  If this is to be achieved then quashing the decisions is an entirely proportionate remedy.  The remedy is proportionate on the basis of all or any one of the grounds of challenge which I have found to be established or on the basis of any combination of those grounds.

 

“Such other orders as may seem to the Court just and reasonable”

[376]    Quashing the two decisions which are subject to challenge in these proceedings will obviously leave intact the instruments or decisions which are not challenged, namely the existing regional “appropriate assessment” and the existing Marine (Scotland) Act section 21 licences.  This could be a recipe for confusion: suppose, for example, that a resumed consultation within the EIA processes were to convince ministers that the projects would result in unacceptable impacts on the Forth Islands and Fowlsheugh SPAs while the existing “appropriate assessment” continues to express certainty on the part of MS-LOT and MSS to the opposite effect [6/4, 2, 57].

[377]    Under the heading “Remedies sought” the Petition seeks “(1) Reduction of the Electricity Act Decision and the Marine Works Decision; (2) The expenses of the action; and (3) Such further orders as may seem to the court just and reasonable in all the circumstances of the case.” The Rules of the Court of Session authorise the Court exercising its supervisory jurisdiction on a petition for judicial review “to make any order that could be made if sought in any action or petition including, in particular, an interim order or any order listed in paragraph (3) (whether or not such an order was sought in the petition)” [RCS 58.13(2)].  The orders referred to include orders for reduction, declarator, suspension, interdict, etc.  I take the view that this power is available, in appropriate circumstances, to quash or otherwise nullify instruments which are contingent on decisions which are the subject of a successful application for reduction, such as the Marine (Scotland) Act 2010  section 21 licences in this case, which are contingent on the Marine Works EIA Regulations reg. 22 consent: but I have reservations as to whether this power extends to making orders to set aside instruments, such as the “appropriate assessment” in this case, which are not objects of challenge or contingent on decisions which are objects of challenge.

[378]    Equally, I am reluctant to make an order against the ministers requiring them to treat the existing “appropriate assessment” as a draft and to consult on it.  It would be an extreme step to make an order for specific implement, which might carry penalties for non-compliance, particularly against the ministers, when such an order has not been sought and the arguments for and against have not been debated.  A declaratory order might accomplish the desired result.  A judgement has to be made whether to have further procedure for the purpose of exploring the options in a case which has already taken a year to decide.

[379]    The difficulties in relation to the “appropriate assessment” arise in part because the “appropriate assessment” in this case goes beyond the role envisaged by the first sentence of Habitats Directive 92/43/EEC art. 6(3).  The way forward as I see it is for the ministers to treat the “appropriate assessment” as a consultation draft and to consult on it, or on a new iteration suitably edited and amplified, through the “further information” procedures of the EIA processes.  That being so, very much on balance, I think that the best course in the circumstances, though not necessarily a perfect course, is to pronounce a declarator to the effect that MS-LOT is not entitled to conclude that the Inch Cape project will not in combination with the other Forth & Tay projects adversely affect the integrity of the Forth Islands and Fowlsheugh SPAs. 

 

 

Disposal
[380]    The Petitioner’s pleas-in-law are directed against “the Decision”, in the singular, unspecified, and bear to support the prayer of the petition for reduction.  I deem the pleas adequate to support remedies of reduction and declarator and to be directed against all decisions and instruments which I find to be unlawful.  I shall sustain the RSPB’s first plea-in-law quoad procedural irregularity (but not unfairness), the second plea-in-law, which relates to “an inadequate et separatim incorrect factual basis” of the decision(s) and the third plea-in-law which focuses the complaints of unlawfulness, ultra vires actings and Wednesbury unreasonableness. I shall also sustain  the RSPB’s fourth plea-in-law, which is directed at the reasoning of, essentially, the “appropriate assessment”, Ground C, although this is now dealt with by me under the heading of Ground B.1.

[381]    The ministers’ first plea is about the preliminary protective expenses application pursuant to chapter 58A of the Rules of the Court of Session. Lord Jones granted the order on 12 May 2015 and the matter is superseded.    I shall repel the ministers’ second, third and fourth pleas-in-law. I shall repel Inch Cape’s pleas-in-law one to six inclusive.  

[382]    In consequence decree of reduction will be pronounced in respect of the Inch Cape 1989 section 36 decision dated 10 October 2014, the Inch Cape Marine Works EIA Regulations reg. 22 consent dated 15 September 2014, the two Inch Cape Marine (Scotland) Act section 21 licences dated 10 October 2014; and decree of declarator will be pronounced in respect of the conclusions of the “appropriate assessment” in relation to the Inch Cape project in combination with the other Forth and Tay projects.  I shall reserve in the meantime all questions of expenses.