Viking Energy windfarm planning permission: the legal situation

by Tom Morton -

The judicial review of the Scottish government’s granting of planning permission for the Viking Energy windfarm development in Shetland, sought by local environmental protest group Sustainable Shetland, ruled last month that the permission should be withdrawn.

This was due, said Lady Clark in her judgement, to the fact that Schedule 9 in Section 36 of the Electricity Act Act 1989 required companies to obtain an electricity generating licence from Ofgem before applying to get consent for a project over 50MW. Viking Energy did not have this. She was also 'not satisfied' that the Scottish Government had complied with its obligations under the European 'Wild Birds Directive 2009'.

The ruling regarding the need for a generating licence has provoked major concern throughout the renewables industry and the legal profession regarding its possible impact on up to 32 previous permission granted to windfarm developments, none of which had generating licences.

The Scottish Government has appealed Lady Clark’s decision. It is understood - although there is some disagreement on this - that this has the effect of setting the withdrawal of planning permission aside until the appeal process is concluded.

As this is an important issue for the future of renewable energy in Shetland, Power From The North here draws together a number of links to news stories, the full findings from Lady Clark, magazine articles and legal opinions on the decision and its implications.

Energy Live News 8 October 2013: ‘Shetland(s) ruling could deal blow to renewables in Scotland’ http://www.energylivenews.com/2013/10/08/shetlands-ruling-could-deal-blow-to-renewables-in-scotland/

Bond Dickinson (leading UK corporate law firm) 10 October 2013: ‘Court of Session Opinion departs from industry practice in Viking Energy decision’http://www.bonddickinson.com/insight/comment/court-session-opinion-departs-industry-practice-viking-energy-decision

Macroberts (Scottish legal firm) 7 October 2013: ‘Business will proceed as normal until outcome of appeal is known.’ http://www.macroberts.com/content/content_1998.html

Pinsent Masons (law firm) 26 September 2013: ‘Departure from industry practice’:http://www.out-law.com/en/articles/2013/september/viking-energy-decision-on-legality-of-section-36-planning-consent-a-departure-from-industry-practice-says-expert/

Shetland News 24 September 2013: ‘Judge rules against Viking windfarm’http://www.shetnews.co.uk/news/7387-judge-rules-against-viking-wind-farm

Shetland Times 24 September 2013: ‘Sustainable Shetland ‘pleased’ as judge rules on Viking windfarm: http://www.shetlandtimes.co.uk/2013/09/24/sustainable-shetland-pleased-as-judge-rules-on-viking-wind-farm

Ecologist Magazine 11 October 2013: ‘Winds of Change’http://www.theecologist.org/News/news_analysis/2105601/the_winds_of_change.html

Guardian, 3 October 2013: "Ministers do not agree that the application was incompetent under schedule 9 of the Electricity Act, nor do they agree that they failed to take proper account of their obligations under the EU wild birds directive in the decision-making process." http://www.theguardian.com/uk-news/2013/oct/03/shetland-windfarm-viking-project-setback

Full opinion by Lady Clark (133 pages): http://www.scotcourts.gov.uk/opinions/2013CSOH158.html