Advice

received by SAS from Senior Counsel about the applicability of Lady Clarks ruling on the Viking wind farm to Non-Section 36 wind farms 3/10/13 In each case it will also be important to check on the OFGEM website whether the particular applicant has either a generating licence (many do) or an exemption from the requirement to hold one (there are a good number of those as well, though nothing like the number of individual wind farms) The DPEA has been telling people that Lady Clark's opinion only applies to s. 36 cases. With respect, that appears to be patently incorrect. On 2 October, Lady Clark called the case over and confirmed her Order, and found the Scottish Ministers liable in expenses, subject to the increased Protective Expenses Order (PEO) which limits their exposure to 60,000. She said she was quashing the decision of the Ministers in relation to the Shetland Viking Project, on the ground that is appears to be incompetent, which means unlawful, because it was not made by the holder of a licence or a person exempt from that requirement. Even if she had found that the application was legally competent i.e. lawful, she ruled that would have found against the SM's on the grounds that they had failed to engage properly with the Birds Directive. The Scottish Ministers have announced that they will reclaim (ie. appeal), stating that they do not agree with the ruling. Such an appeal is likely to focus on Lady Clark's interpretation of the provisions of the Electricity Act 1989, i.e. Schedule 9. It will be necessary for the Ministers, as the appellant, to show that the words "a licence holder or a person authorised by an exemption" do not apply in this context. On Lady Clark's construction this ruling applies to all WF's of or over 10MW, which means that it includes applications made to a local planning authority for installations which have less than 50MW installed capacity. It does not say that the ruling only applies to s. 36 applications. If one reads the Opinion carefully, at para [93] this appears.
[93] In my opinion the terms of Schedule 9(3) are very clear and not difficult to interpret. They oblige a licence holder or a person authorised by an exemption in formulating any relevant proposals for the construction or extension of a generation station of a capacity not less than 10MW to have regard to the various factors set out in paragraph 3(1)(a) and obliges said person to do what he reasonably can to mitigate any effect which the proposals would have on the various factors set out in paragraph 3(1)(b). In my opinion paragraph 3(2) is also important as it imposes obligations on the Secretary of State when he comes to exercise his discretion under sections 36 or 37. It does that by directing the Secretary of State to consider the desirability of the various factors specified in paragraph 3(1)(a) and also obliges him to consider the extent to which the person by whom the proposals were formulated has complied with the mitigation duty under paragraph 3(1)(b). As I

understand the general submissions by counsel for the petitioners and the respondents, this interpretation is in line with the approach that they both adopted in relation to the interpretation of Schedule 9. (emphasis added)

The term "relevant proposals" which is underlined above, is a defined term in Sch 9
(3) (4), as follows relevant proposals has the same meaning as in paragraph 1 above....." If one then goes to "paragraph 1 above", one finds that the term "relevant proposals" means any proposals (a) for the construction or extension of a generating station of a capacity not less than 10 megawatts, or for the operation of such a station in a different manner; (emphasis added)

NB Lady Clarks Opinion can be accessed at

http://www.scotcourts.gov.uk/opinions/2013CSOH158.html