Perthshire resident loses legal appeal against RDS Power wind farm on wildlife grounds

A woman who challenged a Scottish local authority’s decision to grant planning permission for the development of a new wind farm in Perthshire has had her appeal refused.
 
Helen Douglas argued that Perth and Kinross Council failed to have proper regard to its obligations as planning authority in relation to the protection of osprey and wildcat, both of which are highly protected species under European environmental law.

But a judge dismissed her petition for judicial review and the Inner House of the Court of Session ruled that the Lord Ordinary’s decision was “correct”.
 
Lord Drummond Young, Lady Clark and Lord Malcolm heard that Douglas, a resident at Kilry, near Blairgowrie, raised proceedings for judicial review of two related grants of planning permission made by the respondents Perth and Kinross Council, relating to a proposed wind farm at Tullymurdoch, near Alyth.
 
In September 2014 a reporter appointed by Scottish Ministers granted planning permission for the construction by RDS Element Power of a seven-turbine wind farm together with an associated access track and ancillary works. RDS, the interested party, subsequently applied for a modification of that permission, to permit changes in the size of the turbines, which was granted in November 2015.
 
The developer further applied and was granted planning permission the following month to lay 19 kilometres of underground electrical and fibre optic cable, with temporary ancillary infrastructure, to connect the proposed wind farm and another proposed wind farm to the primary electrical substation in nearby Coupar Angus.
 
Douglas challenged the granting of planning permission for the modifications to the wind farm and the laying of the underground cable and sought a further order that the council should seek additional environmental information, and make a full and proper environmental assessment of the impact of the application on osprey and wildcat within the locality of the proposed wind farm and cable route, which are protected under the Wildlife and Countryside Act 1981 and the Wild Birds Directive and Habitats Directive respectively.
 
The grounds of challenge were that the council did not have sufficient environmental information before it to make a “proper assessment” of the effects of the modification to the turbines and laying of the cable upon a pair of osprey nesting within 300 metres of the wind farm and upon wildcat living in the vicinity.

Announcing the verdict, Lord Drummond Young said: “In these cases, the essential consideration is that legal remedies should provide for real breaches of legal rights, not breaches that are theoretical or hypothetical or without any practical substance. We accordingly reject the petitioner’s submission that rights under EU law should be treated differently from rights under domestic law in relation to the power to refuse a remedy.”