Judges overturn Scottish Government's approval of controversial wind farm

Appeal judges have overturned a Scottish Government decision giving permission to build a wind farm project which had previously been rejected three times.

The Scottish Borders Council first turned down the Wull Muir scheme near the village of Heriot in the Moorfoot Hills south east of Edinburgh in 2020.

The firm responsible for developing the site, Energiekontor UK Ltd, appealed to the Scottish Government. But the company lost this initial appeal and revised plans were again refused by the local authority in July 2024.

Energiekontor finally found success in January last year after a Scottish Government reporter found that the proposal didn’t breach planning laws.

However, a company that operated a nearby farm, Raeshaw Farms Ltd, disagreed with the decision.

It instructed lawyers to appeal this decision to the Inner House of the Court of Session – Scotland’s highest civil appeal court.

Its legal team argued that the reporter responsible for giving the go-ahead to the scheme didn’t follow correct legal procedures in making their decision.

The court heard how the proposal covered the construction of eight turbines and other infrastructure. However, the scheme did not include details of the off-site grid connection required to export electricity to the grid.

Raeshaw’s lawyers argued that this meant the reporter’s January 2025 decision didn’t consider the environmental effects of the grid connection.

They argued that this meant the development had not been lawfully approved.

In a written judgement issued by the court on Tuesday, Lady Wise, who sat with her colleagues Lord Pentland and Lord Ericht, upheld the arguments made to them by Raeshaw’s lawyers.

Lady Wise, who gave the judgement, wrote: “We consider that the reporter erred in failing to conduct the necessary fact specific evaluation of the proposal.

“It was incumbent upon him to do so before reaching a conclusion on whether the wind farm and grid connection constituted a single project for which an EIA (Environmental Impact Assessment) report that analysed the potentially significant cumulative effects of both aspects was required.

“We reject the submission made at the hearing before us by Senior Counsel for the respondents that any error by the reporter on this point was not a material one.

“This was a material error.”

The eight-turbine project was first rejected due to its “unacceptable significant adverse impacts on the landscape” and an appeal against that refusal failed.

That prompted revised plans to be brought to the Scottish Borders Council, which suggested moving the turbines and increasing their size.

They were recommended for approval by planning officers, but in the face of widespread local opposition, councillors gave them the thumbs down.

They cited the “significant landscape and visual impacts” in the area.

Developers lodged an appeal against that decision, and were successful.

A Scottish Government reporter concluded that the proposal would cause “significant adverse landscape and visual effects”.

“However, that is to be expected for a proposal of this kind,” he added.

He found that there were “no material considerations” which could justify refusing planning permission and granted it approval subject to a lengthy list of conditions.

In the opinion published on Tuesday, Lady Wise and her colleagues concluded that the application had to be reconsidered.

She added: “Having concluded that there were material errors in the reporter’s approach, we consider that it would be appropriate for the issue of whether the whole project requires an EIA assessment to be considered of anew.

“We shall quash the decision of January 14, 2025 and remit the interested party’s appeal to a different reporter for a fresh decision.”