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Co’path wind turbine decision goes to court

In the first ruling of its kind in Scotland a cap has been put on the costs a Berwickshire woman will have to pay to fight planning consent for two wind turbines near her home.

A Court of Session judge has set a limit of £5000 for the costs Sally Carroll from Cockburnspath will have to pay if she loses her legal challenge against Scottish Borders Council.

Sally is challenging the decision by the council in February this year, to give planning approval for two turbines at Kinegar Quarry, less than one kilometre from her home.

Two planning applications for two wind turbines were initially turned down: the first for 130m high turbines, which was also turned down by the council’s Local Review Body; a new application for 110m-high turbines was also thrown out by planners but the Local Review Body approved the application by three votes to two.

A new Court of Session procedure has opened the way for individuals, like Sally, to challenge such environmental decisions taken by national and local government. It issues them with a Protective Expenses Order limiting the costs that could be awarded against them.

Having overcome the first hurdle in her legal challenge, a 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.”

A spokesperson for SBC said: “The council notes the decision of the court, which relates solely to the matter of expenses. The merits of the case will not be considered until later in the year. It is not possible at this stage to determine with any accuracy the costs of this action, however, these are expected to exceed the appellant’s Protective Expenses Limit of £5,000.”

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.

The company erecting the two turbines is Wind Direct and their development manager, Nicola Mortimer, said: “We are very disappointed that the project has had to go to judicial review after a consent was awarded.

“The site was selected sensitively and would safeguard jobs at Kinegar Quarry whilst providing a substantial Community Benefit Fund of £50,000 per year to the local area or £1.25million over the project lifetime.”