Environmental campaigners at Sustainable Shetland had challenged a decision by the Scottish Government to allow more than 100 turbines to be installed across three different areas on the islands.
The group argued that when the Scottish Government backed the plans for the Viking wind farm project, which could provide energy for up to 175,000 homes, it failed to take into account “positive obligations” under European Union environmental legislation to protect the rare whimbrel bird and bring its population levels up to “favourable conservation status”.
The Shetlands are home to about 95 per cent of the UK’s whimbrel population, with a survey in 2009 recording some 290 pairs.
Sustainable Shetland raised concerns about the impact the wind farm would have on the bird population.
But Holyrood ministers, who granted permission for the wind farm in April 2012, argued that estimates suggested fewer than four birds a year would be killed as a result of colliding with turbines, adding this total was “very small” when there could be between 72 and 108 deaths a year from other causes.
A habitat management plan (HMP) was drawn up, with the Scottish Government arguing this would “counteract the relatively small estimated rate of bird mortality” from the wind farm.
Ministers also said the project, which would create scores of new jobs, would help meet renewable energy targets.
The Supreme Court unanimously dismissed the appeal. In his judgment, Lord Carnwath said: “The ministers were entitled to regard the limited anticipated impact on the whimbrel population, combined with the prospect of the HMP achieving some improvement to their conservation status more generally, as a sufficient answer to the objections under this head.”
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Lord Neuberger, Lord Sumption, Lord Reed and Lord Hodge agreed with Lord Carnwath. Afterwards, a spokesman for Sustainable Shetland said: “We are naturally very disappointed to hear that our appeal to the Supreme Court has been unsuccessful, and are keenly aware that it will be distressing for our many members and supporters who enabled us to challenge the Scottish ministers’ planning consent for the Viking Wind Farm.
“Our opposition to the wind farm – and its dire implications for the Shetland community and environment – remains undiminished. What we do next as far as that is concerned depends to a certain extent on a properly considered reading of the judgment, on what options are available to us outwith legal action and on the wishes of our members.”
The group has so far raised more than £130,000 to help cover the costs of its legal challenge. The spokesman said: “Our main priority for now, however, is to honour our financial commitments which are considerable, and for which we shall continue to fundraise. We wish to extend our sincere gratitude to all those who have supported us, and continue to do so.”
The Scottish Government welcomed the judgment to uphold the decision to grant consent for the project, which is expected to create 140 jobs during its construction and a further 35 permanent positions.
Energy minister Fergus Ewing said: “This positive decision gives the green light to the project, but there are issues which Viking and other projects on the Scottish islands still need to overcome.
“The UK government needs to provide greater certainty about the financial support it has promised to provide to Scottish islands projects. The wind farm also establishes the case for a link to connect Shetland for the first time to the mainland national grid.”