Scottish Borders Council has been accused of acting outwith its statutory powers as a planning authority.
And it has been warned that, as a result, any decision it takes on a controversial wind farm development could face a legal challenge.
The accusation comes from Alastair McKie, a leading expert in planning enquiry advocacy, who is representing Bowhill-based Buccleuch Estates in a bid to thwart plans for a wind farm at Windy Edge near Liddesdale’s historic Hermitage Castle.
Mr McKie has also been engaged to represent the Hermitage Action Group which was set up to fight the scheme.
Last summer, renewables giant Infinis submitted plans for 17 turbines on two exposed sites – Braidlie and Sundhope – just north of Newcastleton.
The firm said the structures, ranging in height from 115m to 121.5m, would help generate community benefits of around £136,000 a year. But, within months, the council had received over 230 objections, along with 20 letters of support.
Dissenters included Buccleuch, owners of the vast Eskdale and Liddesdale estate which adjoins the development site and which includes the A-listed castle.
“The wind farm will have an unacceptably adverse impact on the setting of the nationally important built heritage of the castle and chapel,” stated Buccleuch.
Also objecting to the scheme was the Ministry of Defence which claimed the turbines would cause unacceptable interference to the performance of radar at RAF Spadeadam in Cumbria and interrupt low-flying operations from that base.
Historic Scotland, custodians of the castle – described as “the guard house to the bloodiest valley in Britain – warned that the windmills would challenge the monument and its setting and added: “Hermitage Castle is one of the great medieval fortresses in Scotland, association with stories which are historic, heroic and horrific.”
Now, in a bid to address that barrage of opposition and to meet concerns over the castle, Infinis wants to reduce the scale of its proposal, cutting the number of turbines from 17 to nine and removing those turbines at Sundhope, closest to Hermitage.
At the same time, the nine remaining towers at Braidlie will be taller than first envisaged, stretching 125m from base to blade tip.
Council planning officers have indicated that the authority will accept the change as “further environmental information” and have ruled that a new planning application will not be required.
The Infinis variation does not, in their view, constitute a substantial difference in the description of the development for which permission is sought.
However, Mr McKie, head of planning and the environment at law firm Anderson Strathern, has taken issue with this stance.
He says he cannot see how the proposed changes could be anything other than substantial because of their effects and impacts, some of which will increase.
He believes the existing application should therefore be withdrawn and a fresh one submitted.
In a submission to SBC, Mr McKie states: “My clients maintain that your council is acting outwith its statutory powers in this matter.
“I specifically reserve my clients’ right to challenge any decision made by your council in its determination of the application”.
Infinis, which currently generates seven per cent of the UK’s renewable energy from 16 wind farms, say they have cut the number of proposed turbines despite advice from two independent archaeologists that the original layout would have an effect of minor significance on the setting of Hermitage Castle.
Explaining the decision to treat the revised proposal as merely an addendum to the original Infinis bid, council planning officer John Hiscox said: “In all the circumstances, we do not consider the variation is such that there is a substantial change in the description of the development…[planning legislation] provides the discretion for the authority to make this decision.
“Therefore, the authority has acted appropriately and lawfully.”
However, Mr Hiscox stressed that the amended application would not be considered by SBC’s planning and building standards committee until December this year at the earliest.
“This will give sufficient time for interested parties to give further consideration to the scheme and make comment,” he added.
|Wind Watch relies entirely
on User Funding