Gilston Hill Wind Farm
The second Appeal Decision Notice by the reporter was published on 6th Feburary 2020.
The decision was to dismiss the appeal and refuse planning permission.
Details of application
Proposed 7 turbines up to 126.5m in height, sited on the northern slopes of Brotherstone Hill and on the edge of Fala Moor.
Application details can be found on the SBC Idox Planning Website at:
17/00226/FUL Land Northwest of Gilston Farm.
This application was considered by the SBC Planning Committee in October 2017, and was refused on Landscape and Visual impact grounds. The applicants Forsa Energy appealed against this decision. The appeal was considered by a Reporter appointed by the Scottish Government, and the progress of the appeal can be seen on the DPEA web site. The Appeal reference is PPA-140-2060.
The Appeal Decision Notice by the reporter was published on 7th Feburary 2019.
Having considered everything carefully, Heriot CC has decided to take legal action against the decision, with backing from concerned local people. That action has been lodged with the courts.
On May 30th, the procedural hearing was held about the competency of the HCC appeal of the Reporter's decision regarding the Gilston Hill Windfarm application. The decision was given to allow the appeal to proceed. The summary below was written for HCC to publish.
Summary of hearing
Lord Malcolm, at a hearing today (30 May 2019) in the Inner House of the Court of Session, refused Forsa Energy Services Limited's objection to the competency of Heriot Community Council's appeal against the decision of Mr Croft, Reporter, dated 7 February 2019 to grant planning permission for Gilston Hill Windfarm. Lord Malcolm also ordered Forsa Energy Services Limited to pay the Community Council's expenses caused by the objection. In summary Lord Malcolm's opinion was that the community council were able to take the decision to appeal without it being debated at a public meeting, and that he had been provided with nothing which could support Forsa's submission that the community council had acted unlawfully or contrary to morality. Lord Malcolm also said that if the decision to appeal had been taken improperly, which he was not persuaded was the case, he would have been satisfied that the decision was in any event ratified at a meeting of the Community Council on 1 May 2019. As a result of this decision a hearing will be assigned in due course to consider the Community Council's grounds of appeal against Mr Croft's decision.
Summary of the grounds of appeal
That the Reporter:
- Failed to give adequate reasons for disagreeing with the first reporter’s conclusions.
- Failed to take account of the development plan, specifically the Supplementary Planning Guidance on Renewable Energy.
- Failed to take proper account of SBC's reasons for refusal.
- Failed to take account of landscape impact, or at least failed to give reasons for assessing no impact.
- Gave insufficient opportunity for interested parties to make representations about noise, which was one of the determining issues.
- Failed to take account of the developer's own recommended noise limits and imposed a noise condition that does not comply therewith.
Statement from Raeshaw
As an integral member of the local community, Raeshaw Estate is financially supporting the Community Council's appeal against the way in which the Gilston windfarm decision was reached.
Gilston Hill Wind Farm Update, June 2019
Heriot Community Council Appeal Succeeds
As previously stated, Heriot CC decided to appeal to the Court of Session requesting that the decision of the Reporter appointed to hear the planning appeal in relation to the Gilston Hill wind farm be set aside.
This appeal was on the procedural grounds that the Reporter failed for a number of reasons to fully address the issues arising from the appeal in the proper manner. Following legal advice confirming their view, Heriot CC was also able to secure a financial indemnity against the very substantial costs that arise from such legal actions from Raeshaw Estate.
Forsa Energy, the developers proposing Gilston Hill wind farm, raised objection to the Court that Heriot CC was in various ways not competent to bring such an action, but as already reported, the Court ruled against Forsa Energy and the appeal proceeded.
It has now been conceded by Scottish Ministers (the action was brought against them as being responsible for the Reporter, and the Department of Planning and Environmental Appeals) that the legal appeal should succeed on one procedural ground. Heriot CC have agreed they are content with that outcome. This has also been accepted by Forsa Energy, and so the Court of Session – being satisfied that grounds to do so exist – has quashed the Reporter’s February 2019 decision.
The planning appeal will now be sent back to be dealt with again by a different Reporter, assuming the developer do not wish to withdraw the planning appeal. As Forsa Energy have now sold their wind farm portfolio to BayWa, a German company, it will be up to BayWa to decide.
Heriot CC is very pleased with this outcome, as it vindicates the difficult decision to bring such a serious and complex legal action. Such actions are seldom undertaken, and only succeed where the court finds or, as in this case, the Ministers accept that the decision was not in accordance with the law. The bar set by the Scottish Courts is high, and this success emphasises that it was the correct thing to do in the circumstances. It goes without saying that Heriot CC could only bring the action with the full financial support of Raeshaw Estate.
Gilston Hill Wind Farm Update, October 2019
Gilston Hill Wind Farm Appeal
Following the quashing of the original Appeal Decision by the Court of Session, the planning appeal against refusal is being re-determined by a different Reporter appointed by the DPEA. The appeal reference is PPA- 140 -2068 -1. The papers for this can be found on the DPEA website at
As can be seen on the DPEA web site, all the original submissions and papers from the first appeal have been carried over and are still valid. The Reporter has invited updated information on changes to planning policy and cumulative impacts with other wind farm developments that have occurred since the first appeal. These have been submitted by SBC and the Developers.
Third parties including Heriot CC have subsequently been invited to comment, and there is now yet a further round of responses under way. All these together with formal notices from the DPEA can be seen on the DPEA web site.
It is expected that this process will soon draw to a close and the Reporter will then make his decision.
Gilston Hill Wind Farm Update, January 2020
The latest responses to the further information submitted by the wind farm developers are now available on the DPEA website, via link above. This includes the response from HCC, prepared by solicitors Gillespie Macandrew on behalf of HCC with financial support from Raeshaw Estates.
The HCC position remains the same as previously given. Additional detail in the response is concerning the updated noise impact assessments and recommended noise level conditions.