Help Crowdfund Helen’s legal appeal

One summer evening I was walking through long grasses on the face of the hill opposite my cottage. A striped wildcat kitten shot from underneath my left foot. The only other occasion I have seen a live wildcat, she was sunning herself in a hollow. I watched her through binoculars for a an hour or more. She was as big as my sheepdog, with a tail like the rump of a bumble-bee, and ears like a lynx, without the tufts. When a hailstorm came on I thought she would leave, but she merely flattened her ears and her body right down. These encounters are among the greatest highlights of my life.

A forester called Alan Ross, who has studied wildcats for a quarter of a century, tell me there may be as few as ten pure Scottish Wildcat females still in existence. These last few sisters may leave no useful progeny. With such a minute gene pool, they seem doomed to succumb to hybridisation, competition for food, and destruction of habitat for commercial gain.

The quarry where I came across these animals was disturbed by the creation of a borrow pit for a single turbine. On that occasion, Scottish Natural Heritage issued post-planning consent recommendations for her protection, but these were flouted on several occasions in the Developers’ scramble to meet the deadline for feed-in tariffs. The only survey was a daytime ‘walk-over’, out of the breeding season, after excavations had begun.

In December 2015 permission was granted for the access route and ancillary works for neighbouring Tullymurdoch Wind Farm, again with post-consent conditions attached. I have little confidence that these conditions will be policed adequately this time either, and so I spent what I had on consulting environmental lawyer, Jamie Whittle. In fact, Mr Whittle reduced his fee substantially when I asked for extra time to pay him because I had an electricity bill at the same time. (I’m extremely frugal with electricity, doing my bit for the environment that way – but the bills still go up: ironically, to pay for the ‘green’ element. I wouldn’t mind that if it really was ‘green’, but it seems that most of that additional tariff is going to make a few very rich people even richer, and those whose lives are actually affected don’t count…)

Jamie Whittle passed me on to a legal firm who did legal aid work, and I did then have ‘emergency’ legal aid to cover their expenses (though not those of the Developer) to take the matter to the Court of Session. The Judge found, in December 2016, that it was a ‘planning matter’ and the Local Authority was entitled to make its own judgement about the risk to wildlife.

I don’t believe this is true. The Local Authority is the ‘legally responsible body’ and, though entitled to seek advice from outside agencies, cannot simply pass the buck onto SNH – especially as the Planning Department was aware of how ‘wishy-washy’ was the response over the same wildcat queen in the quarry. (Actually my QC thinks I’m being very generous to describe it as ‘wishy-washy’!)

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. Scottish Natural Heritage, though concerned about the decline of the iconic ‘Highland Tiger’, interprets the word ‘habitat’ solely as the cat’s bed – and only while she is 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?

To give you a little of the history, these turbines at Tullymurdoch were 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 will produce sufficient energy to qualify for huge ‘turn off’ subsidies during periods when grid capacity is exceeded. Greed supersedes genuine concern for the environment, even in the field of sustainable development itself.

Meanwhile, an osprey nest on the site’s fringe was destroyed. Local fans of the magnificent fishers, with their frowning Heathesque eyebrows, were delighted when the pair returned and re-built nearby. 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 wind farm twice daily. I can watch them from my window while I’m having my breakfast. It’s clear the bird surveys – particularly for breeding raptors and the fast disappearing curlew – need to be updated before they begin work on the wind farm. The impact on the birds needs to be assessed, and it’s not enough to leave that to those who have a financial interest in the Development. There is insufficient information on the birds’ feeding routes, and no consideration of potential danger from additional length of moving mechanical parts. Members of the public – especially people who live here and know the habits of the wildlife on the hill – are being denied the opportunity to comment, because it’s all down to post planning consent ‘in-house’ observations. For example, the workers on the wind farm are supposed to stop work if they happen to notice they’re about to dig up a wildcat den, or the ospreys seem flustered, and call the ‘Environmental Clerk of Works’. That’s ridiculous: the Developers didn’t even know where the nest was -they had to phone up a neighbour of mine last summer to ask!

Ospreys are known to tolerate incredible noise levels and human activity – but only once eggs have been laid and there is an incentive to sit tight. 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)
I felt pretty powerless. I live alone in a remote place and I work as a hill shepherd. I don’t have many resources as I’m self-employed and have very little work through the winter months. Then, after the Court of Session result was reported in The Herald in December, a couple of people contacted me through my lawyers, offering support and encouragement, and I began to realise there are many others who are passionate about wildlife and environmental justice – and if each one could pledge a little, even if it’s £5 or £10, we don’t have to let them get away with it!

My lawyers and both the QC who is acting for me and the QC who has provided a ‘Second Opinion’ have offered to do so at lowered rates if Legal Aid is not granted (which is not yet known – last time they said it was ‘not good use of public funds’, even though financially I qualified for assistance). We’ve also applied for a ‘protected expenses order’, in case we lose, which I hope will be granted – but that doesn’t cover my own legal team’s expenses.

Please, would you consider contributing?

Thank you,

Meanwhile, conditions should be met rigorously, with transparency and impartiality, and surveys carried out during appropriate seasons.

Help Crowdfund Helen’s legal appeal

1 Comment

P Heron · February 23, 2017 at 3:54 pm

A familiar tale of skullduggery fuelled by money, influence – and the flexibility of Councillors as a result of both.

What a Parcel of Rogues in a Nation!

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