A Perthshire shepherd has lost her second court appeal against a decision to allow a wind farm to be built on land which is also home to ospreys and a rare “queen” wildcat.
Helen Douglas of Kilry near Blairgowrie had appealed to the Inner House of the Court of Session – Scotland’s highest civil court – to overturn the earlier decision of Lord Kinclaven to allow seven wind turbines to be built at Tullymurdoch.
Three judges yesterday confirmed Lord Kinclaven’s findings in December and refused her petition for judicial review of the two decisions by Perth and Kinross Council to grant planning permission to RDS Element Power Ltd for the turbines and related underground cabling.
Delivering the verdict, Lord Drummond Young, who was accompanied on the bench by Lady Clark and Lord Malcolm, wrote: “In challenging the grants of planning permission for the modification of the turbines and the laying of the cable, the petitioner (Douglas) founds on the legislation governing the protection of osprey (Pandion haliaetus) and wildcat (Felis silvestris). Both of those species enjoy highly protected status under conservation legislation.”
An environmental statement prepared at the time of the planning applications found that ospreys had bred within 5km of the wind-farm site, and while no wildcats had been sighted at that time it was assumed that the area was used by them.
It was subsequently claimed that ospreys were nesting just 300m from the site and that wildcats had been seen and caught there.
The legal submission by Douglas stated that the Council “did not have sufficient environmental information before it to make a proper assessment of the effects of the proposed modification to the turbines and the laying of the cable upon a pair of osprey nesting within 300m of the wind farm and upon wildcat that live in the vicinity of the wind farm and the cable route.
“For that reason it is said that the respondent (Perth and Kinross Council) could not make a proper assessment of the effects of the two developments and therefore acted unlawfully in granting planning permission in each case.
“Information about the pair of osprey and the wildcat only became available after the environmental statement had been prepared for the original wind-farm application, and after it had been decided, in a screening decision, that the cable application did not require an environmental statement.”
The Council and the developers pointed out that they have agreed a Construction and Environmental Management plan.
Lord Drummond Young noted: “An Ecological Clerk of Works is to be appointed, and if protected species are found he is charged with ensuring that protected species protection plans are implemented. If necessary he can suspend works.”
When the first court case was lost, Helen Douglas went public to say she was facing bankruptcy because of the court costs, and a crowdfunding exercise is understood to have taken place so that yesterday’s appeal could go ahead.
Usually, in Scots law, all costs of the action must be met by the losing party. It is not known how much Douglas will be liable for, but The National was unable to contact her before going to press.
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