The bitter battle that is being fought over the proposal to build a wind farm at Edinbane, on the Isle of Skye, has stepped up a gear.
After several years of deliberation, against the background of a debate that has sharply divided public opinion on the island and further afield, Highland Council granted consent for the 18-turbine development in May.
The Skye Windfarm Action Group Limited (SWAG) has moved the battle to a new front: the Court of Session. SWAG is arguing that the planning authority acted unlawfully in granting planning permission and the permission for the wind farm should therefore be quashed.
Where does SWAG say the planning authority went wrong? For its principal grounds of challenge, SWAG is looking to European law.
The Edinbane proposal falls within the scope of the Environmental Impact Assessment Regulations. These regulations apply to developments that are likely to have significant effects on the environment.
The original European Directive sets out a procedure that must be followed for certain types of project before planning permission can be granted. In particular, the environmental information must be drawn together in a single statement.
At Edinbane, the planning application was originally submitted by the developer in January 2002. Planning consent was not granted until five years later. As is not uncommon over the life of an application new environmental issues were raised as the project evolved, and the applicant responded to requests for further information.
Ultimately, because of this, SWAG argues, the environmental statement ended up taking the form of a rag-bag of documents, relating to different proposals, submitted at different times over half a decade.
It was therefore difficult for members of the public to understand properly the documents, to form their own view on the significance of the environmental issues raised and to play an informed and effective role in the decision-making process.
The documents lodged did not comprise a real environmental statement, according to the objectors, and the council should not have granted planning permission. The council is unlikely to share this view.
SWAG is also relying upon European nature conservation law. The European Birds Directive requires the UK to specify Special Protection Areas for the conservation of protected bird species. On Skye, the Cuillin mountain range, designated in relation to golden eagles, lies about 15 kilometres south of Edinbane. SWAG says that before granting planning permission, Highland Council had a duty to undertake an appropriate assessment of the implications for the Cuillin’s golden eagles.
The action group also says that the planning authority did not properly consider the impact of the development on white-tailed eagles, another protected species.
SWAG’s position is that the council failed to evaluate properly all the information before it. The argument is that the council failed to consider representations from local ornithologists and the Royal Society for the Protection of Birds (RSPB). Again, the council will no doubt take a different position.
The fact that it took five years for the planning application to be granted demonstrates the complexity of the issues. The council and the developer will now have an opportunity to put their arguments to the court. The outcome will be eagerly awaited by those on both sides of the wind farm debate.
Renewable energy is at the top of the Scottish Executive’s agenda, but
it may be that turning policy into practice is not so easy.
Douglas Milne is an associate at Morton Fraser, which is representing the Skye Windfarm Action Group in its application to the
Court of Session for a judicial review.
6 August 2007
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