Failed appeal for Argyll site highlights importance of conservation legislation
It is more than ironic that in a country where the government is heavily committed to maximising production of energy from renewable sources one of the main barriers to achieving this aim is conservation legislation, much of which, increasingly, originates from the European Union.
In Scotland there are 154 Special Protection Areas and 237 Special Areas of Conservation covering some 7,803 square miles between them. Most of these are in those areas where wind farm development is most logical in terms of climate and topography – our wild lands.
Under rules of European origin, development in these sanctuaries is only allowed if it can be shown, on the basis of objectively assessed and rigorously measured evidence, that there will be no negative impact on the conservation objectives for the species or habitat protected under the designation.
The latest proposed wind farm development to fail due to conservation legislation was for a project of 14 turbines at Stacain near Inveraray, Argyll. The proposed site was located within the Glen Etive and Glen Fyne Special Protection Area (SPA) which covers 314 square miles, its 19 pairs of golden eagles representing 4% of the UK population.
As the proposed development was in excess of 50MW the decision on whether or not it could proceed went before the Scottish Government (under 50MW the decision maker is the relevant local authority). The Scottish Ministers rejected the proposal and the developer behind it, Bagmoor Wind Limited, took this to appeal. On December 7th three judges of the Inner House of the Court of Session including Scotland’s second most senior judge, Lord Carloway, refused an appeal in Bagmoor Wind Limited v Scottish Ministers [2012 CSIH 93].
The case turned on 1) the developer’s concession that the colony of eagles would be negatively affected if, even taking mitigatory work into account, one pair abandoned the SPA or any bird’s death was caused by the proposed development, and 2) evidence from the developers’ ornithological experts that the displacement effect that had been noticed on eagles around the pre-existing Beinn Ghlas wind farm despite mitigatory works might, because it was not currently understood, be repeated.
The key lesson
The facts proved or accepted by the parties in one case need not be accepted in others and, although significant for those involved, Bagmoor is of limited value as a precedent. However, the case does highlight just how important it is for developers of potential wind farm sites to be aware of the need to consider the conservation objectives of any nature preserves affected.
Developers need to work to establish that there will be no measurable net impact to any protected areas’ integrity. If that can be agreed with the statutory agencies then, subject to witnesses coming forward to prove the consensus wrong, only the normal run of planning issues need be considered. Those issues are more open to persuasion than the test set by Europe to protect our most vulnerable species and habitats. If any doubt remains about the absence of an adverse impact, then the developer must accept that there is an adverse impact, and put in place every measure possible to avoid it. If developers cannot exclude any continuing doubt, whether development can proceed depends on further tests that were not covered in Bagmoor. If it comes to that, sadly, developers should be prepared for a walk on the legal wild side.
