Legal protections for protected habitats face a particular challenge in the shape of the Lewis Windfarm project

Conservationists may have been pleased by recent announcements (on 7 and 18 March 2005) by Deputy Environment and Rural Development Minister Lewis Macdonald of further protection for important and sensitive nature conservation areas in Scotland. Two hundred and thirty eight sites (covering 963,000 hectares) which were previously candidate special areas of conservation under the Habitats Directive (92/43/EEC), now become full special areas of conservation (SACs). Eleven additions to the 140 sites (covering 624,772 hectares) currently classified as special protection areas (SPAs) under the Birds Directive (79/409/EEC) are also proposed. SPAs and SACs are subject to some of the most stringent legal controls affecting nature conservation sites, the Habitats Directive and the Birds Directive having been transposed into UK law by the Conservation (Natural Habitats, etc) Regulations 1994 (commonly known as “the Habitats Regulations”). SACs and SPAs are collectively referred to in the Habitats Regulations as “European sites”. Many further legal controls apply to European sites, for example through the Wildlife and Countryside Act 1981 and the Nature Conservation (Scotland) Act 2004.

With such a high level of legal control, most observers would be surprised that any developer would propose to construct any infrastructure within or affecting a European site. They might be even more surprised to find a developer not only proposing a large project but its size actually increasing as project development continues. Yet that is exactly what has happened with the Lewis Windfarm Project. The developers, Lewis Wind Power (LWP), a joint venture between AMEC and British Energy, propose to build 234 wind turbines to the north and west of Stornoway with a capacity of 702 megawatts (MW), generating electricity sufficient to power 450,000 homes each year.

A question of capacity

LWP estimate this would meet approximately 40% of Scotland’s targets for electricity generation from renewable sources and 6% of the equivalent UK target. They believe 300 construction jobs would be created, with 350 further jobs over the following 25 years, and benefits to the Western Isles economy (including community benefit trust funds, rent payments, and jobs) of perhaps £8 million per year.

Whatever the potential benefits to the Western Isles, LWP face one immense technical difficulty: existing national grid capacity there is only 22MW. To export the power to the mainland would require a subsea interconnector cable. Scottish Hydro-Electric have proposed a 1,150MW interconnector, but at massive potential cost. But, as Western Isles Council strive to create the “Renewable Energy Capital of Europe”, some favour incurring that cost. Indeed an interconnector is required to provide the infrastructure for future projects, including potential wave and tidal generation. Local MP Calum Macdonald is quoted by LWP as saying that “we certainly need at least one big development in order to finance the interconnector”. Essentially at least one developer must think big if renewable energy technologies are to become a significant contributor to the Western Isles’ future.

A major legal difficulty for LWP is that 190 of their wind turbines would be within the Lewis Peatlands SPA. Indeed the windfarm would occupy approximately 1% of the protected area. Species present in the SPA include golden eagles, merlins, black and red throated divers and approximately 37% of the UK population of the dunlin. The Royal Society for the Protection of Birds has already objected to the windfarm proposal, as have many others, and Scottish Natural Heritage may yet do so.

The economic imperative

But how can a major project within even part of an SPA stand any chance of success? The answer lies in regulations 48, 49 and 53 of the Habitats Regulations. If a proposal is likely to have a “significant effect” on a European site, the competent authority (here, the Scottish Ministers) must assess the implications for the site’s conservation objectives. The proposal may still be approved if there are “imperative reasons of overriding public interest” (including social and economic reasons) and no “alternative solutions”, though compensatory measures can be required.

So the scene is set for a classic “jobs versus birds” battle, but with a twist. Normally you might expect a developer to reduce the scale of the proposals to resolve nature conservation objections. Here it has increased (from 600MW to 702MW, through fewer but bigger turbines), partly because the chances of success in obtaining the interconnector increase with size. Also the “public interest” test is more likely to be met if there may be substantial future social and economic benefits and smaller projects are (arguably) not “alternative solutions” as they would not create such benefits. LWP stress that only a small part of the SPA will be affected and mitigation measures will be introduced. Objectors beg to differ on these and many other issues. With the Harris superquarry saga now finally closed, the minister has another difficult decision to make for the Western Isles.

Robin Priestley,  Associate, Planning & Environment,  Anderson Strathern

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