ALEX Salmond’s green energy programme has suffered a setback from a landmark court ruling which casts doubt on the legality of many wind farm developments in Scotland.
Anti-wind farm campaigners have seized on a Court of Session opinion by Lady Clark of Calton that almost all turbines require an electricity-generating licence from the regulator Ofgem before planning consent is given.
Those opposing wind farms believe the ruling could stem the tide of turbines being built across Scotland.
The Scotsman has learned that Scottish Borders Council (SBC) has written to the Scottish Government demanding that an application for a RWE Npower Renewables wind farm at Rowantree, near Oxton, be refused.
Lawyers for the council believe that Lady Clark’s ruling, published last week, creates a legal precedent which means that the Rowantree development should not go ahead.
According to legal experts, the local authority’s letter to the Scottish Government could be the first of many challenges that the wind industry could face.
Last night, the Scottish Government said it would appeal Lady Clark’s ruling, which has the potential to have far-reaching consequences for Mr Salmond’s vision of making Scotland a renewables world leader.
“There is little doubt other hard-pressed local authorities will follow in SBC’s footsteps”, said Graham Lang, chair of national anti-wind farm alliance Scotland Against Spin.
“Scotland is being besieged by speculative wind farm applications which are time-consuming and expensive for local planning departments, and increasingly unpopular with the communities they threaten.”
Anti-wind farm campaigners have been given hope by Lady Clark’s reaction to her discovery that one of the largest wind farms planned for the UK did not have an electricity generating licence from Ofgem.
In a judicial review of the Scottish Government’s decision to approve a 103-turbine Viking Energy development on Shetland, Lady Clark also found that ministers had not taken enough account of the development’s impact on the bird population.
The publicity that greeted her decision to halt the wind farm last week concentrated on the turbines’ effect on the future of the whimbrel, a rare species of wading bird found in Shetland.
Since then, however, lawyers have digested the full implications of Lady Clark’s report and, in particular, her thoughts on Ofgem licensing.
After Lady Clark was told that the Viking Energy development, which involves the energy giant SSE, had no Ofgem licence, she ruled that the wind farm was legally incompetent under UK legislation.
The judge referred to the 1989 Electricity Act, which requires wind-farm developers to have an Ofgem licence unless they have a specific exemption from the Department of Energy and Climate Change. Lawyers believe that aspect of her ruling has repercussions for other wind farm developments in Scotland.
It is unclear how many will be affected, but the most recent Ofgem list of licensees only includes a handful of Scottish projects. That compares with the dozens of applications in the planning pipeline.
Getting an Ofgem licence typically takes 45 days and involves a risk assessment of the project and an examination of company history.
Gary McGovern, a lawyer specialising in planning and environmental law with Pinsent Masons, said the ruling was “a departure from industry practice” when it came to “section 36” planning consent, which all power plants above 50 MW must secure.
He said the legal development had cast doubt on the power of Scottish ministers to grant consent to “non-licence holders” under the 1989 Electricity Act.
Last night, a Scottish Government spokeswoman said: “Scottish ministers have decided to appeal the judgment and will lodge that appeal in the days ahead.
“Ministers do not agree that the application was incompetent under schedule nine of the Electricity Act, nor do they agree that they failed to take proper account of their obligations under the European Union Wild Birds Directive in the decision making process.”