A decision by the Inner House of the Court of Session recently goes further to reassure developers that large scale wind developments (over 50MW) for which consent has already been granted will not be subject to challenge.
In September 2013 a Court of Session Judge, Lady Clark of Calton, concluded that only a licence holder can apply for consent under the Electricity Act 1989 to construct and operate a generating station. As a result, the 103 wind turbine development proposed for Shetland by Viking Energy (who do not hold such a licence) has been put on hold. The decision was of particular relevance to windfarms above the 50MW threshold where there is a separation between licence holder and operating company which is most likely where joint venture or partnership structures have been used, as was the case with the Viking proposal (which involved a partnership).
Lord Doherty subsequently declined to follow Lady Clark's ruling in a judgement on a separate petition for judicial review brought by the Trump Organization, concluding that the Scottish Ministers do have power to grant consent to non licence holders.
The Inner House of the Court of Session recently stated that"the holding of a licence is not a condition precedent to the granting of consent of section 36...Lord Doherty has convincingly rejected a plea to the competency of a section 36 application in similar circumstances. We agree with this reasoning."
The opinion recently also highlights the difficulties faced by anti-wind farm groups in seeking judicial review of decisions to grant consents for wind or other developments. Scottish Natural Heritage had maintained an objection to the development owing to concern over adverse impact on whimbrels. In her ruling of September 2013 Lady Clark of Calton had been critical of"the Scottish Ministers' complete failure in the Decision Letter explicitly to address the legal issues arising out of the Wild Birds Directive or to explain their approach to the making of the decision". In her view, the Ministers had failed to make it plain in what way the Directive was or was not applied and demonstrate that it was properly applied.
In its opinion letter recently the Inner House stressed that the issue which Lady Clark ought to have focused on was not whether the Scottish Ministers demonstrated in their decision letter that they had understood their obligations under the Wild Birds Directive, but rather whether the Scottish Ministers had complied with their basic duties under the Wild Birds Directive.
The Inner House concluded that the Scottish Ministers had complied with their basic duties, stating that..."It is true that the Ministers did not specifically mention the Wild Birds Directive in the Decision Letter but there was no requirement that they should do so. For a decision to be lawful, it is sufficient that the decision-maker in substance complies with the his duties. He need not spell out that he is doing so, nor explain why".
Such a decision makes it all the harder to call into question whether decisions have been properly arrived at, there being no express requirement on the decision-maker to explain their detailed reasons for reaching such a decision.