EIA normal service can resume now.* The decision to quash the consents for the Scottish off shore wind farms (Inch Cape, Neart na Gaoithe, Seagreen Alpha and Bravo) has been overturned. The RSPB have until 13 June to seek leave to appeal to the Supreme Court.
The appeal court (Inner House of the Court of Session) cautioned that the EIA process “should not create an endless process of notification of, and consultation on, every matter which is, or becomes available to the decision-maker prior to the decision”. This practical approach mirrors the decision of the Inner House in the Stronelairg wind farm case , in which it was noted that, as the locations and heights of turbines were already known, creating new images from different angles did not provide new information.
The key approach in judicial review was reaffirmed – it is not the function of the court to decide between the differing views of experts in a technical area. In particular, the existence or otherwise of a reasonable doubt is primarily a matter of fact for the decision-maker, not a judicial reviewer. MS-LOT, as experts in the field, were entitled to make the evaluative judgment that no reasonable scientific doubt remained, despite competing scientific views.The court also noted that there is no requirement for the decision-maker to seek comment on their own internal musings, or those of their departments or consultants.
The court cautioned against going too far when reviewing the reasons given for decisions, which risks reviewing the reasons for the reasons, not just the reasons themselves.
So, all in all, a reminder that the courts are reluctant to intervene in consenting decisions.
* (except for the changes introduced by the new Regulations….)
On June 2, 2017