A recent Court case in Scotland has shed new light on the importance of transparency in consultations. The 114-page judgment by the Scottish Court of Session focused on the legality of several consenting decisions for offshore wind farms. The RSPB, worried about the effects of these wind farms on migratory birds, argued that these decisions were made on the basis of information which was not included in the consultation and not made available to non-statutory consultees. A large number of documents, such as a 692-page ornithological chapter, were not published, nor were they consulted on until after the consultation had already ended and the consenting process was almost complete. In this specific case, it revolved around the Environmental Impact Assessment obligations under the Electricity Works (Scotland) Amendment Regulations and the EU Habitats Directive, not an area that most of us are familiar with, but it does highlight some interesting points for those with an interest in public consultation.

Firstly, consent was given on the basis of (environmental) information that wasn’t consulted on which is a clear violation of Gunning Two and of the United Nation’s Aarhus Convention as the latter dictates that all environmental information has to be published. As was the case in the HS2 Action Alliance v Secretary of State for Transport judgment, not providing the relevant information to your stakeholders is grounds for a successful legal challenge.

Secondly, the Scottish Ministers claimed that quashing the decision would be disproportionate and that the additional information wouldn’t have altered their final decision. The Court did not agree with this reasoning and ruled that the flaw is not simply a procedural irregularity but a substantive one. The judge argued, rightly so, that “they (the Ministers) have failed to take into consideration the hypothetical further representations.”

This judgment shows us just how important it is for both the consultees and the consultors to have access to all the relevant information, not to be withheld by the discretion of the competent authority; a clear confirmation of Gunning Two, so both parties can have ‘intelligent consideration’ and make an informed response and decision. The steps taken by the RSPB to recover the undisclosed information imply that they intended on making fully-informed responses.

The Scottish Ministers and the wind farm developers have learned a very expensive lesson, and one with serious ramifications for the Scottish offshore wind farm industry, over something that could’ve easily been prevented as they themselves argued that this new information wouldn’t have influenced their decisions.  If that’s the case, why not be open and transparent from the start?!