Martin Hannan, Journalist
A Perthshire shepherd has lost her second court appeal against a decision
to allow a wind farm to be built on land which is also home to ospreys and
a rare “queen” wildcat.
Helen Douglas of Kilry near Blairgowrie had appealed to the Inner House of
the Court of Session – Scotland’s highest civil court – to overturn the
earlier decision of Lord Kinclaven to allow seven wind turbines to be built
at Tullymurdoch.
Three judges yesterday confirmed Lord Kinclaven’s findings in December and
refused her petition for judicial review of the two decisions by Perth and
Kinross Council to grant planning permission to RDS Element Power Ltd for
the turbines and related underground cabling.
Delivering the verdict, Lord Drummond Young, who was accompanied on the
bench by Lady Clark and Lord Malcolm, wrote: “In challenging the grants of
planning permission for the modification of the turbines and the laying of
the cable, the petitioner (Douglas) founds on the legislation governing the
protection of osprey (Pandion haliaetus) and wildcat (Felis silvestris).
Both of those species enjoy highly protected status under conservation
legislation.”
An environmental statement prepared at the time of the planning
applications found that ospreys had bred within 5km of the wind-farm site,
and while no wildcats had been sighted at that time it was assumed that the
area was used by them.
It was subsequently claimed that ospreys were nesting just 300m from the
site and that wildcats had been seen and caught there.
The legal submission by Douglas stated that the Council “did not have
sufficient environmental information before it to make a proper assessment
of the effects of the proposed modification to the turbines and the laying
of the cable upon a pair of osprey nesting within 300m of the wind farm and
upon wildcat that live in the vicinity of the wind farm and the cable route.
“For that reason it is said that the respondent (Perth and Kinross Council)
could not make a proper assessment of the effects of the two developments
and therefore acted unlawfully in granting planning permission in each case.
“Information about the pair of osprey and the wildcat only became available
after the environmental statement had been prepared for the original
wind-farm application, and after it had been decided, in a screening
decision, that the cable application did not require an environmental
statement.”
The Council and the developers pointed out that they have agreed a
Construction and Environmental Management plan.
Lord Drummond Young noted: “An Ecological Clerk of Works is to be
appointed, and if protected species are found he is charged with ensuring
that protected species protection plans are implemented. If necessary he
can suspend works.”
When the first court case was lost, Helen Douglas went public to say she
was facing bankruptcy because of the court costs, and a crowdfunding
exercise is understood to have taken place so that yesterday’s appeal could
go ahead.
Usually, in Scots law, all costs of the action must be met by the losing
party. It is not known how much Douglas will be liable for, but The
National was unable to contact her before going to press.
Judgement can be found at http://www.scotcourts.gov.uk/search-judgments/judgment?id=876f32a7-8980-69d2-b500-ff0000d74aa7
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