SNP ministers have decided to ignore a ruling by one of Scotland’s most senior judges that threatens the spread of wind farms because they consider turbines to be in the “national interest”, the Daily Telegraph can disclose.
The Scottish Government has confirmed ministers will continue granting planning permission for large wind farms that do not have a licence to generate electricity from the industry regulator.
This is despite Lady Clark of Calton issuing a Court of Session opinion earlier this month stating that developers require such a licence for a wind farm to be legal under the Electricity Act 1989.
In a letter sent on Tuesday this week to John Campbell QC, a prominent planning lawyer, Scottish Government officials said ministers think the “balance of public and national interest is in favour of continuing with the current approach”.
They said ministers will continue ruling on planning applications for unlicensed wind farms pending an appeal against Lady Clark’s ruling, which is due to be heard next year.
But the decision has infuriated anti-wind farm campaigners and opposition MSPs, who accused SNP ministers of arrogance for considering themselves “above the rule of law”.
It had been thought the ruling would stymie the spread of large wind farms as developers rarely obtain a licence from Ofgem, the industry regulator, before applying for planning permission.
Linda Holt, spokesman for campaign group Scotland Against Spin, said: “This goes well beyond the cutting of corners and bending of rules that have characterised the Scottish Government’s blind pursuit of the world’s most ambitious renewable targets.
“As an eminent judge’s impeccably argued ruling threatens to stall a substantial tranche of wind farm development, Scottish ministers have decided their renewable ambitions are above the rule of law.”
Liz Smith, a Scottish Tory MSP, said: “This is a blatant disregard by the Scottish Government for what everyone else sees as a very clear legal ruling by Lady Clark.”
Frances McChlery, convener of the planning law committee of the Law Society of Scotland, warned the SNP’s move was “risky” as the judge had not “plucked it (the ruling) out of air.
She said large wind farms given planning permission before the appeal could retrospectively be declared invalid if ministers lose.
Earlier this month, Lady Clark set aside the planning consent granted to the 103-turbine Viking Energy wind farm development in Shetland following a judicial review.
She held that Scottish ministers’ decision to allow the 370MW wind farm to be built was “incompetent” because the developers did not have an electricity generating licence.
Legal experts warned the ruling could block all planning applications for unlicensed wind farms with a capacity of more than 50MW, which require the consent of ministers under Section 36 of the Electricity Act.
Mr Campbell contacted the SNP administration about the Glenmorie wind farm in Sutherland, which is currently the subject of a public inquiry.
In a reply, seen by this newspaper, officials from the Scottish Government’s Energy Consents Deployment Unit refused to order the inquiry’s suspension.
Although the correspondence said ministers have noted Lady Clark’s ruling, it stated that “they disagree with, and have appealed, the decision.”
The ruling “runs contrary to the established practice” for handling wind farm planning applications north and south of the Border for many years, it said.
“Our intention is to continue to operate in accordance with that practice and to deal with current applications on that basis,” the letter concluded.
“Scottish Ministers consider that the balance of public and national interest is in favour of continuing with the current approach until the appeal has been determined, in particular because of the need to continue to support the economy and our renewable energy ambitions.”
Three judges in the Inner House of the Court of Session will now hear the appeal between February 25 and 28 and again from March 4 to 7 next year.
A Scottish Government spokesman said: “The effect of the appeal is to suspend the judgment. If the appeal is successful then the original decision of the Scottish ministers stands”.
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