Gilston Hill Wind Farm Update, June 2019

Heriot Community Council Appeal Succeeds

As previously stated, Heriot CC decided to appeal to the Court of Session requesting that the decision of the Reporter appointed to hear the planning appeal in relation to the Gilston Hill wind farm be set aside.

This appeal was on the procedural grounds that the Reporter failed for a number of reasons to fully address the issues arising from the appeal in the proper manner. Following legal advice confirming their view, Heriot CC was also able to secure a financial indemnity against the very substantial costs that arise from such legal actions from Raeshaw Estate.

Forsa Energy, the developers proposing Gilston Hill wind farm, raised objection to the Court that Heriot CC was in various ways not competent to bring such an action, but as already reported, the Court ruled against Forsa Energy and the appeal proceeded.

It has now been conceded by Scottish Ministers (the action was brought against them as being responsible for the Reporter, and the Department of Planning and Environmental Appeals) that the legal appeal should succeed on one procedural ground. Heriot CC have agreed they are content with that outcome. This has also been accepted by Forsa Energy, and so the Court of Session – being satisfied that grounds to do so exist – has quashed the Reporter’s February 2019 decision.

The planning appeal will now be sent back to be dealt with again by a different Reporter, assuming the developer do not wish to withdraw the planning appeal. As Forsa Energy have now sold their wind farm portfolio to BayWa, a German company, it will be up to BayWa to decide.

Heriot CC is very pleased with this outcome, as it vindicates the difficult decision to bring such a serious and complex legal action. Such actions are seldom undertaken, and only succeed where the court finds or, as in this case, the Ministers accept that the decision was not in accordance with the law. The bar set by the Scottish Courts is high, and this success emphasises that it was the correct thing to do in the circumstances. It goes without saying that Heriot CC could only bring the action with the full financial support of Raeshaw Estate.

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