A legal bid by local people, who fought hard but unsuccessfully to prevent Fallago Rig wind farm being given planning permission, has failed and their request for a judicial review into how the planning application was handled has been turned down.
At the Court of Session, Judge Lord McEwan ruled out the possibility of overturning permission for the 48-turbine Fallago Rig development.
He found no evidence of bias during the second public inquiry into the application or that the results was had been “pre-determined” as claimed by opponents.
A Scottish government reporter had initially refused planning permission after hearing evidence at a public inquiry from the Ministry of Defence that the turbines would interfere with radar defences. However, behind the scenes talks continued, the MoD eventually withdrew they original objections and a second public inquiry was opened, this time the reporter finding in favour of the wind farm developers and in November last year the Scottish Government granted planning permission for it to go ahead.
Protesters said ministers had already made up their minds to approve the plans and accused Scottish ministers of having been been “seduced” by the developer.
However, the judge said he was unable to find any conduct by the responsible minister which could be criticised and he 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 and that was the proper time to have asked for a judicial review, when the expense of a new inquiry might have been saved.
Those seeking the judicial review were obviously disappointed. Mark Rowley, chairman of Cranshaws, Ellemford & Longformacus Community Council responding: “The community council, as well as the many people who live in, or just love to visit, the Lammermuirs will all be extremely saddened that this highly inappropriate development will now sit in the heart of the Lammermuir Area of Great Landscape Value. It is a windfarm too far from the Lammermuirs and was rightly opposed by the local community, Scottish Natural Heritage and both Scottish Borders and East Lothian Councils.
“The access tracks are already brutally scarring the landscape and when the 125m high turbines appear it will become clear to all just what a shocking location this is.
“The Lammermuirs are under even greater threat at the moment, with over a dozen major windfarm applications across the Borders coming forwards within the next few months. If even only half of these schemes are consented, wind turbines will become a defining landscape feature across the Borders and will become a near-inescapable presence.
“Ironically Fallago may never produce any power. There is still no known solution to the radar black hole it would create, so it is entirely possible they could be built but never turn. Meanwhile just a few miles away at Wester Dod, the MOD still maintains its objection on radar grounds and the public are rightly concerned about the safety issues these radar black holes raise so close to Torness nuclear power station.”
Developers North British Windpowers, however, are delighted that the main construction work for the windfarm can now get underway.
“North British Windpower welcomes the decision of the Judicial Review into the Fallago Rig planning consent,” said director, Iain McMenemy.
“The judgment to uphold the decision of the Scottish Ministers to grant consent for Fallago Rig Windfarm paves the way for full construction of the windfarm to begin. In the Court of Session Lord McEwan refused the pleas of the petitioners on all counts.
“The Fallago Rig windfarm has been through a rigorous planning process which involved examination of the project at two public inquiries. The consenting process and decision to grant consent has now been further cross examined in court where the accusations against the Scottish Ministers of bias, predetermination and acting ultra vires were independently examined by Lord McEwan. The review concluded that the consenting process had been conducted entirely properly and that the accusations against the Scottish Ministers were unfounded.
“The Fallago Rig site is an excellent location for the 48 turbine wind farm due to its strong wind resource, proximity to a national grid connection and unobtrusive positioning. This 144MW windfarm is expected to produce enough clean energy to power over 90,000 Scottish households, and will create significant employment in the Borders and across Scotland during construction and in the ongoing operation and maintenance of the windfarm. Additionally the windfarm will provide £240,000 per year of funding for community projects.
“The conclusion of the Judicial Review will now allow the main construction work for the Fallago Rig windfarm to start in the next few weeks.”
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