OPINION OF LORD KINCLAVEN

Your  may  remember this news article in last week’s  Herald.  Please find the Opinion of Lord  Kinclaven at the bottom of the page.

Agenda: Ruling could sound death knell for this tiger queen of the Highlands – Herald 3 December 2016

LORD Kinclaven’s judgment, issued yesterday, permits the construction of
Tullymurdoch Wind Farm, one of the last remaining wildcat territories.
There may be as few as 10 pure Scottish wildcat females still in existence.
These last few sisters may leave no useful progeny. They seem doomed to
succumb to hybridisation (queens will only mate other felines if no male
wildcat male is available), competition for food, and destruction of
habitat for commercial gain.

Yesterday’s judgment may be the death knell for one female who displays the
pelage markings of a pure wildcat. With such a minute gene pool, even an
individual of close genotype may be critical to the survival of the species.

This queen is believed to have been disturbed previously by the creation of
a borrow pit for a single turbine. On that occasion, Scottish Natural
Heritage (SNH) issued post-planning consent recommendations for her
protection but these were flouted on several occasions in the scramble to
meet the deadline for feed-in tariffs.

In December 2015 permission was granted for the access route and ancillary
works for neighbouring Tullymurdoch Wind Farm, with post-consent conditions
attached. Unsurprisingly, objectors were not confident that conditions
would be policed adequately and an action was raised in the Court of Session.

It is illegal, under European Law, to destroy wildcat habitat. This
includes the den, the animal’s bedroom, and its foraging area, its kitchen.
In a hard winter the larder area may need to be more extensive than
previously imagined. SNH, though concerned about the decline of the
“Highland tiger”, interprets the word “habitat” solely as the cat’s bed
while sleeping in it.

This wildcat may flit to yet another den, but how many more times must she
be chased out before someone protects her interests? The turbines had
already been consented in 2014 but subsequent wind-speed tests were
disappointing. The developers then applied for a modification of the
permission. They wanted squatter stalks with longer blades. These bigger
turbines would produce sufficient energy to qualify for big “turn-off”
subsidies during periods when grid capacity is exceeded. Greed seems to
supersede concern for the environment, even in the field of sustainable
development itself.

Destruction of our natural heritage masquerades as the pursuit of green
energy. Meanwhile, an osprey nest on the site’s fringe was destroyed. Fans
of the magnificent fishers were delighted when the pair returned and
rebuilt nearby. We were concerned that the original ornithological surveys
for the wind farm recorded only two “fly-pasts” over several seasons,
whereas in 2015 the parent birds were taking the chicks on training flights
over the proposed site twice daily. Ospreys tolerate incredible noise
levels and human activity but only after eggs have been laid and there is
an incentive to sit tight. We believed there was insufficient information
on the birds’ feeding routes and no consideration of potential danger from
additional lengths of mechanical parts.

My sadness after yesterday’s judgment is immense. In addition, I have to
meet the costs: my passion for wildlife has probably bankrupted me.
Scotland is still, for the time being, bound by the European Birds
Directive and the European Habitats Directive. Unfortunately as Jamie
Whittle points out, “All too often when legislation trickles its way down
from the European Union in Brussels to national law and policy in Scotland,
the Government wriggles out of applying these laws effectively.’ (Whittle,
J: White River, 2007)

It remains to be seen whether we will be permitted to challenge this
“wriggling out” in the European Courts. Meanwhile, conditions should be met
rigorously, with transparency and impartiality, and surveys carried out
during appropriate seasons.

We express gratitude for the wisdom, generosity, and passion for
environmental justice of: Sir Crispin Agnew, QC; Jamie Whittle of RR
Urquhart Solicitors; Siqyia Riaz and Lucy Frazer of Campbell and McCartney
Solicitors; and Sheriff Frances McCartney. We also acknowledge our
neighbour Alan Ross, whose knowledge of the wildcat has been invaluable.
Ross has “wintered out” with these creatures with immense patience, skill,
and dedication over several decades.

Helen Douglas, a shepherd, was a petitioner to the Court of Session.