Protective costs award to wind farm campaigners a first, says expert 

A judge has agreed to limit a Shetland Islands environmental group’s liability for legal costs to £5,000 in its judicial review of the Scottish Government’s decision to grant planning permission to a 103-turbine wind farm.

Sustainable Shetland is challenging the Viking Windfarm on a number of grounds, including the impact of the project on protected species and the landscape and the failure by ministers to hold a public local inquiry.

The protective costs order (PCO) will see the campaigners’ potential exposure to legal costs limited to £5,000 with a cap of £30,000 put on the ministers’ expenses, according to the Shetland Times. In addition, the campaign group will have no liability for developers’ expenses. Sir Crispin Agnew of Lochnaw QC, representing Sustainable Shetland, had argued that the group had no “economic interest” in the outcome of the challenge.

Energy law expert Russell Spinks of Pinsent Masons, the law firm behind Out-Law.com, said that the case marked the first time that protected expenses had been successfully sought for a challenge to a renewables development. He added that the £5,000 cap granted to the campaigners would likely prove “worrying” for developers.

“Since the concept of a Protective Expenses Order was ruled competent in Scotland in 2010, we have seen the concept become gradually more prevalent,” he said. “This case is the first time they have been successfully sought for a challenge to a renewables development, however it is unlikely to be the last. The low level of the cap for potential adverse losses, worryingly for developers of traditional and renewable energy sources alike, is only likely to encourage third party challenges to an EIA development in future.”

A PCO can be granted where a court is of the view that the issues being raised in a case are of wider public interest. They are intended to ensure that judicial reviews against public bodies are not prevented from going ahead because an applicant might not be able to pay that body’s costs in the event that the application is dismissed. They are frequently issued in environmental law cases, where there can often be an overlap between local interests and principles of EU law.

The Ministry of Justice recently announced that it would extend the PCO regime in environmental law cases in England and Wales from the end of this year. Courts will be able to grant PCOs before deciding whether to proceed with an application, rather than waiting until permission to proceed with the challenge had been granted, provided that the claim falls clearly within the scope of the Aarhus Convention. A consultation on the potential introduction of a similar regime in Scotland closed in April; however, the Scottish Government has not yet issued a response.

Under the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention), implemented in the EU by the Public Participation Directive, public bodies must ensure that the public have access to a procedure to challenge decisions relating to the environment to the extent permitted by national law. Amongst other things, the Convention specifies that this procedure should not be “prohibitively expensive”.