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Judge rejects demand for judicial review of region's windfarm

Protesters against a controversial plan to construct a huge wind farm in the Scottish Borders have lost another round in their fight.

The proposal to site up to 48 125-metre high turbines at Fallago Rigg in the scenic Lammermuir Hills has set two dukes against each other.

The Duke of Roxburghe, who owns the land, is in favour of the wind farm. The Duke of Northumberland, who owns grouse moor in the area, is not.

The fall-out from the scheme has also pitted Scottish Borders Council and local community councils against Scottish Ministers who wanted the wind farm to go ahead as part of their policy of backing “green energy”.

North British Windpower’s bid to get the go-ahead for the turbines has been the subject of two public inquiries.

First time around, in February 2008, the reporter appointed to examine the controversy came down against the development.

A key objection had come from the Ministry of Defence who said the huge turbines would interfere with radar defences. Nearby Torness nuclear power station, a potential target for any enemy action, could be vulnerable to surprise attack, they said.

The inquiry was re-opened and the same reporter appointed in November 2009.

By the time of the second inquiry, the Ministry of Defence had dropped their objection after discussions with other government officials.

A number of protesters got together to take their case to the Court of Session in Edinburgh, seeking a judicial review. But in a written ruling issued today/yesterday (Fri) judge Lord McEwan ruled out the possibility of over-turning permission for the wind farm to go ahead.

Preparatory work had already begun at the site while the legal arguments were being heard in court.

Lord McEwan noted: “The developer’s proposals have been resisted by land-owners, residents and other interested groups. There have been two public inquiries costing much time and money. There is voluminous correspondence and even the proper defence of the realm has played a part.”

The protesters had targeted the second public inquiry, claiming it was biased against them and the question had been “pre-determined.” They also insisted that there was no “new evidence” to re-open the inquiry, as the Scottish Ministers claimed.

Ministers had made up their minds to do everything in their power to bring about approval for the plan, the protesters said, accusing civil servants of “covert conversations” to get the Ministry of Defence to drop their opposition.

Scottish Ministers had been “seduced” by the developer, it was alleged, at meetings with First Minister Alex Salmond and finance secretary John Swinney.

But Lord McEwan was also told by lawyers acting for the Scottish Ministers and the developer that the protesters had not challenged the second inquiry but had taken an active part in it.

Lord McEwan said he was unable to find any conduct by the responsible Minister which could be criticised.

The issue had been raised in the Holyrood Parliament eight times between April and November 2009 and none of the answers to questions betrayed “a closed mind”.

The judge threw out the demand for a judicial review saying those opposed to the wind farm were aware of all the issues to be raised at the second inquiry – which they appeared to have wanted.

That was the proper time to have asked for a judicial review, said Lord McEwan, when the expense of a new inquiry might have been saved. As it was, they had delayed too long.