Complaints to UNECE: Why the Scottish and UK windfarm policy should be tested in a court of law?

Posted Category: Aarhus

The UK’s National Renewable Energy Action Plan (NREAP) is in breach of the Åarhus Convention

Åarhus Implementation Guide  

Pat SWORDS from Ireland and Christine Metcalfe from Argyle have both taken complaints about the legality of the Renewable Energy programmes to the United Nations Compliance Committee.

Their complaints have been ratified.  ACCC/C/2012/68  and ACCC/C/2010/54. Both rulings need to be read together as the latter is dependent on the former:

THE march of wind turbines across the UK and Scotland can be challenged in the courts on the grounds that Scottish ministers have failed to protect people who live in their shadow as a result of the rulings by UNECE meeting of parties (Mops).  ‘

The Compliance Committee did not rewrite their recommendations in ACCC/C/2010/54 a second time, they just expanded them in ACCC/C/2012/68,  therefore it doesn’t give the true picture unless you read both together.

For the UK to comply all planning permissions and funding arrangements should be halted until Article 7 of the Convention and the Strategic Environmental Assessment are complied with in relation to the UK NREAP which covers Scotland, Wales and Northern Ireland.

Government and planners are relying on opinions, acts, policies, etc, and avoiding having to do proper assessments and quantification, and getting away with it. One has to persist and point out how they have failed to comply with the relevant procedures outlined below. If one does that,  a paper trail will emerge, which will leave one in a stronger position vis a vis forcing them to back off as they are getting worried or leaving one in a very strong position vis a vis taking them on in a Judicial Review (the secret of which is to demonstrate procedural failures). So force them away from their comfort zone of opinions into having to produce the sums. That is the answer…….

Do as the Committee recommended in the decision now adopted by the Meeting of the Parties and part of International Law:

Committee’s recommendation, namely, that it adopt a proper regulatory framework and/or clear instructions for implementing article 7 of the Convention with respect to the adoption of NREAPs. This would entail that the Party concerned ensure that the arrangements for public participation in its member States are transparent and fair and that within those arrangements the necessary information is provided to the public. In addition, such a regulatory framework and/or clear instructions must ensure that the requirements of article 6, paragraphs 3, 4 and 8, of the Convention are met, including reasonable time frames, allowing sufficient time for informing the public and for the public to prepare and participate effectively, allowing for early public participation when all options are open, and ensuring that due account is taken of the outcome of the public participation. Moreover, the Party concerned must adapt the manner in which it evaluates NREAPs accordingly.

The Complaint by Kilchrenan Community Council

In December 2012 the Avich and Kilchrenan Community Council  took  its concerns about widespread windfarm proliferation in Argyll to the heart of Europe.

The Åarhus Convention, prepared under the auspices of the UN, is adopted into British and EU law. Both the UK (and therefore Scotland) and the EU are fully signed up to the Treaty. It gives rights to citizens to have access to environmental information, and places duties on Governments to make it available in such a form that citizens can make use of it while all options are open for projects affecting the environment.

Part of the justification for windfarms is that they save harmful emissions of CO2 and other pollutants from the generation of electricity. The numbers produced in that connection were challenged by the AKCC at the time of the Carraig Gheal and Western Argyll Timber Haulage Route applications, but the challenges were ignored.

Mrs Christine Metcalfe, a Community Councillor from Loch Avich near Loch Awe, discovered that complaints about apparent breaches of the Convention could be brought before the United Nations Economic Commission for Europe’s (UNECE) Åarhus Compliance Committee. In her ‘Communication’ to that Committee she made the point that the windfarm and roads projects had been brought forward, and had received consent without there having been any examination of the “carbon savings” to see if they existed, were worthwhile, or could be achieved in other less intrusive ways. Both the windfarm and the road were said to have significant environmental disadvantages.

Assisted by a technical adviser and counsel, Mrs Metcalfe took her concerns directly to the heart of the UN in Geneva on Wednesday 12/12/12, where in more than four hours of vigorous debate, the issues were discussed in a friendly, non-adversarial.

As Wind Farms fall under Annex II of the EIA Directive, they are covered by the procedures of Article 6 of the Convention and the EIA Directive itself. So the below is (unlike many implementing legislation) reasonably easy to read and understand.

First step is that the competent authority (ie. in Scotland: the council planning authority or the Scottish Government in the case of section 36 applications) has to produce an objectively high standard document which is the outcome of the public participation. Page 109 of the “Aarhus Convention: An Implementation Guide” has to be read very carefully more than once. Scottish planners are running roughshod over this, as in the case below. The Compliance Committee are now aware of this, see their questions after the meeting in December (loaded on the webpage on the 8-1-2013), one can see the influence of page 109 in the implementation Guide:



This has to be brought to the attention of the planners. If they fail to comply with this procedure, they are automatically facing a Judicial Review.


The next step in Article 6 is that ‘reasons and considerations’ have to be given for the decision, i.e. what environmental information is being used to justify the decision. See page 110 of the Implementation Guide. EU law goes further, see Article 3 of the EIA Directive and more to the point the ruling by the European Court in case C-50/09 taken against the Irish State by the EU Commission for a failure to properly transpose Article 3 of this Directive, which Scotland has also failed to transpose in its 2011 EIA Regulations.


In March 2011, the European Court ruled against Ireland in case C-50/09 for failure to properly transpose the Environmental Impact Assessment Directive (85/337/EEC as amended), in particular the obligations of the competent authority under Article 3 of the Directive to complete its own Environmental Impact Assessment of the direct and indirect effects of the development. To clarify the planning authority is responsible for completing its own environmental assessment of the direct and indirect effects of the proposed development on the following:


(a)  human beings, flora and fauna,

(b)  soil, water, air, climate and the landscape,

(c)  material assets and the cultural heritage, and;

(d)  the interaction between the factors mentioned in paragraphs (a), (b) and (c).


As the European Court of Justice stated in its C-50/09[2] ruling against Ireland; the competent authority may not confine itself to identifying and describing a project’s direct and indirect effects on certain factors, but must also assess them in an appropriate manner, in the light of each individual case. 



It is clearly unlawful to approve a project with very significant environmental impacts, such as on landscape, human health (noise), flora and fauna, etc, without assessing any of the reasons and considerations for offsetting these impacts. Indeed, it will also be necessary to demonstrate what alternatives were considered to achieve these same alleged environmental benefits.

With regard to the Scottish methodology for assessing CO2 emissions, this is a total con and is highly inaccurate. In the documentation submitted on the 24-9-2012 on the UNECE Communication ACCC/C/2012/68 this was addressed in detail in Q3 to the Communicant:


So fundamentally, the CO2 saving is the only reason for this renewable programme, the Competent Authority (planner) has to assess it in the individual case for each wind farm. They cannot legally rely on vague aspirational opinions in acts, policies, draft SEAs, etc; there has to be a proper quantification. When you do a proper quantification, as seen here, it is clear in that there is no justification for such projects.



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