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Landmark ruling on Berwickshire windfarm

A Court of Session judge has capped the costs that a Berwickshire woman will have to pay even if she loses her legal challenge against Scottish Borders Council (SBC), which recently approved plans for a wind farm on her doorstep.

The ruling is the first ever to be made in Scotland under a new Court of Session procedure, and opens the way for individuals, of limited means, across the country to challenge environmental decisions taken by national and local government.

Sally Carroll from the conservation village of Cockburnspath, on the Berwickshire coastline, is determined to challenge her local council’s decision to approve the construction of two industrial wind turbines less than one kilometre from her home.

The only way for her to do this is to take her case to the highest court in Scotland. As this would have been prohibitively expensive – potentially more than £100,000 – Mrs Carroll could not have gone ahead without a Protective Expenses Order (PEO) which limits the costs that could be awarded against her, if she fails in the appeal, to a total of £5,000.

Having overcome the first hurdle in her legal challenge, a delighted and very relieved Mrs Carroll said: “I have taken a huge risk coming so far because I might have lost the case for limiting my liability.

“Fortunately, the judge recognised that to comply with a European Directive it must not be prohibitively expensive for an individual to challenge a decision that impacts on their environment – and that includes the cost of getting the PEO in the first place.

“Without this breakthrough capping my liability, I simply could not have afforded to challenge the council’s decision.”

Construction of the turbines has now been halted until the full appeal has been heard.

Mrs Carroll said: “I believe – as do many others – that the decision to approve these turbines was fundamentally wrong.

“The decision was taken by SBC’s Local Review Body, a quasi judicial body made up of locally elected councillors who should be held accountable for their decisions.

” If and when the public believes a decision is wrong, it must, and can now be, challenged.

‘Wildlife, nature and unspoilt countryside are very important to me. Local folk feel as if they are under siege from developers and are fed up having wind farms dumped in East Berwickshire.

“Government, at both local and national levels, should be answerable to the electorate for their decisions but, until now, it has been impossible, financially, for a person like me to challenge ludicrous decisions like this. Perhaps now the council will reconsider the decision.’

Many people who are in similar situations because of the proliferation of wind farms are highly supportive of Mrs Carroll’s challenge.

Some have already helped with the appeal and offered donations towards Mrs Carroll’s costs which, despite the £5,000 cap on the defenders’ costs, and the generous offer by her legal team – led by Anna Poole QC – to limit their fees if the appeal fails, may need to be paid.

The new law provides that PEOs can be made where, among other things, it would be ‘prohibitively expensive’ for a person to appeal.

Most planning decisions have until recently been made by a full planning committee of the local authority, with disappointed developers having the right to appeal to a Scottish Government Reporter.

However, many planning decisions are now delegated to planning officers, and an appeal may be made to a Local Review Body, made up of some five councillors from the planning committee.

This is the first decision of a Local Review Body to be brought before the Court.

The judge, Lord James Drummond Young, also made an order that stops the turbine development from going ahead until the appeal has been decided.

A full hearing will take place in the Court of Session towards the end of the year.