Landmark ruling on Berwickshire windfarm
A Court of Session judge has capped the costs that a Berwickshire woman
will have to pay even if she loses her legal challenge against Scottish
Borders Council (SBC), which recently approved plans for a wind farm on her
doorstep.
The ruling is the first ever to be made in Scotland under a new Court of
Session procedure, and opens the way for individuals, of limited means,
across the country to challenge environmental decisions taken by national
and local government.
Sally Carroll from the conservation village of Cockburnspath, on the
Berwickshire coastline, is determined to challenge her local council’s
decision to approve the construction of two industrial wind turbines less
than one kilometre from her home.
The only way for her to do this is to take her case to the highest court in
Scotland. As this would have been prohibitively expensive – potentially
more than £100,000 – Mrs Carroll could not have gone ahead without a
Protective Expenses Order (PEO) which limits the costs that could be
awarded against her, if she fails in the appeal, to a total of £5,000.
Having overcome the first hurdle in her legal challenge, a delighted and
very relieved Mrs Carroll said: “I have taken a huge risk coming so far
because I might have lost the case for limiting my liability.
“Fortunately, the judge recognised that to comply with a European Directive
it must not be prohibitively expensive for an individual to challenge a
decision that impacts on their environment – and that includes the cost of
getting the PEO in the first place.
“Without this breakthrough capping my liability, I simply could not have
afforded to challenge the council’s decision.”
Construction of the turbines has now been halted until the full appeal has
been heard.
Mrs Carroll said: “I believe – as do many others – that the decision to
approve these turbines was fundamentally wrong.
“The decision was taken by SBC’s Local Review Body, a quasi judicial body
made up of locally elected councillors who should be held accountable for
their decisions.
” If and when the public believes a decision is wrong, it must, and can now
be, challenged.
‘Wildlife, nature and unspoilt countryside are very important to me. Local
folk feel as if they are under siege from developers and are fed up having
wind farms dumped in East Berwickshire.
“Government, at both local and national levels, should be answerable to the
electorate for their decisions but, until now, it has been impossible,
financially, for a person like me to challenge ludicrous decisions like
this. Perhaps now the council will reconsider the decision.’
Many people who are in similar situations because of the proliferation of
wind farms are highly supportive of Mrs Carroll’s challenge.
Some have already helped with the appeal and offered donations towards Mrs
Carroll’s costs which, despite the £5,000 cap on the defenders’ costs, and
the generous offer by her legal team – led by Anna Poole QC – to limit
their fees if the appeal fails, may need to be paid.
The new law provides that PEOs can be made where, among other things, it
would be ‘prohibitively expensive’ for a person to appeal.
Most planning decisions have until recently been made by a full planning
committee of the local authority, with disappointed developers having the
right to appeal to a Scottish Government Reporter.
However, many planning decisions are now delegated to planning officers,
and an appeal may be made to a Local Review Body, made up of some five
councillors from the planning committee.
This is the first decision of a Local Review Body to be brought before the
Court.
The judge, Lord James Drummond Young, also made an order that stops the
turbine development from going ahead until the appeal has been decided.
A full hearing will take place in the Court of Session towards the end of
the year.
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