A public inquiry into a controversial 34-turbine windfarm in the Highlands has gone ahead – despite a legal challenge claiming it was unlawful.
In the first test to a watershed Court of Session ruling, opponents to the Glenmorie project in Ross-shire tried to halt the four-day hearing – being held in a local village hall – before it had even started.
The position of the anti-windfarm campaigners followed a ruling by Lady Clark of Calton that the Viking Energy windfarm in Shetland was “incompetent” as it did not have a generation licence from the electricity regulators.
Legal teams from the conservation charity John Muir Trust and campaign group Save Our Straths (SOS) argued that, as the Glenmorie Wind Farm proposal also has no licence, the inquiry should be postponed until the outcome of a Scottish Government appeal to Lady Clark’s judgement, to be heard next year.
They also claimed it would save over £100,000 in costs, particularly if the appeal failed.
Highland Council, whose formal objection to the proposal on the grounds it would have a detrimental impact on the landscape sparked the hearing, had also sought clarification on the issue from the Scottish Government Reporter in charge, Katrina Rice, although their legal position was the inquiry would be lawful for the time being.
After two hours of legal debate, the Reporter said the hearing should proceed, particularly as the government appeal may be successful.
John Campbell QC, representing SOS, had argued that on “a simple view” of Lady Clark’s decision, the Reporter had before her an “incompetent application”.
He pointed out the ruling was a statement from a judge, not just another opinion, and claimed that it reduced the Shetland application to the point where it had effectively never been made.
He claimed the Glenmorie application, in the same vein, was therefore not lawful and as the Reporter who was a representative of a directive of the Scottish Government it raised questions about the government’s complicity in an unlawful process.
Mr Campbell said the Reporter should not be guided by correspondence within the government.
He said none of the financial costs of preparing for the inquiry would be wasted if an appeal was successful, as all submissions could be used later in a “lawful” inquiry.
Ian Kelly, representing the John Muir Trust, said the the judgement of Lady Clark was now the law of the land until superseded by a legal court.
He said that JMT was a charity which had to account for the legal use of charitable funds. If the inquiry was not to be delayed then JMT would need to know who will pay their costs for an unlawful inquiry.
James Findlay, counsel for Highland Council, said the authority accepted Lady Clark’s judgement only applied to the Viking Energy application, and she had not declared all such applications without a generating licence as invalid.
He said the council believed the Glenmorie application was lawful at the moment, pending the appeal, but may become unlawful at a later date.
He said the Reporter did not have the legal authority to declare this application unlawful, as that would be for a court to decide.
Marcus Trinick, representing the developers, said the Reporter would be “brave” to delay the inquiry on the basis of Lady Clark’s ruling on one application.
He said no one had challenged the legality of the Glenmorie windfarm in court, which would be open to any party to do.
Mr Trinick added that it was common practice for applicants for all types of energy generating schemes to gain planning permission before applying for a generating licence.
The Reporter, after taking an hour to consider the arguments, said it was not her role to speculate on the legal judgement of Lady Clark in the case of Viking Energy.
She added that there was an appeal currently to be heard, which could be successful, and said that as no party had applied to the courts for an interdict she was happy the proceedings could continue lawfully.
A spokeswoman for developers Glenmorie Wind Farm LLP, part of AES Wind Generation, said they were happy with the decision, having already made a significant investment into the proposed project.
She added: “We are excited at the opportunity of outlining the details of our plans at the inquiry.”
Helen McDade, head of policy at the John Muir Trust, said afterwards: “Given the position of the Scottish Government, the Reporter was put in a difficult position.
“We remain concerned that this inquiry may prove to be waste of time and money, because if the appeal court upholds Lady Clark’s original decision, the developer will have to resubmit its proposal from scratch.
“In the meantime we will participate in the inquiry to put the case for this application to be thrown on the grounds that it would further erode Scotland’s diminishing area of wild land.”
Over the four days, the inquiry will hear evidence on the landscape and visual impact, tourism and economics impacts, energy and planning policies, and proposed conditions.
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