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Directorate for Planning and Environmental AppealsSummary of Report of Inquiry into application under section 36 of the Electricity Act 1989 and deemed application for planning permission under section 57 of the Town and Country Planning (Scotland) Act 1997

4 The Courtyard, Callendar Business Park, Falkirk, FK1 1XRDX 557005 Falkirk www.scotland.gov.uk/Topics/Planning/Appeals

The erection of a wind farm comprising 48 turbines and associated infrastructure atFallago Rig (or Ridge), west of Longformacus, Scottish Borders

Case reference IEC-3-42 Case type Application for section 36 consent (Electricity

Act 1989) and deemed planning permission (section 57, Town and Country Planning (Scotland) Act 1997)

Reporter Karen Heywood Date of application 16 May 2005, amended 27 October 2006 Applicant North British Windpower Ltd Planning authority Scottish Borders Council Other parties Cranshaws, Ellemford and Longformacus

Community Council, Gordon and Westruther Community Council, Black Mountain Farms and other landowners, the Lammermuir Protection Group, Scottish Natural Heritage (all objectors); The Ministry of Defence (no longer objecting)

Date of report 5 August 2010 Reporter’s recommendations Grant consent and deemed planning

permission

Reasons for referral to Scottish Ministers Scottish Borders Council notified Scottish Ministers that it objected to the proposed development. Under the terms of Schedule 8 section 2(2) of the Electricity Act 1999 the planning authority’s objection requires that a public inquiry be held.

The first inquiry into the proposed wind farm at Fallago Rig took place in February 2008. The report was submitted to Ministers in August 2008 and recommended that consent and deemed planning permission should be refused because of the detrimental impact on national security.

Since that time, the Ministry of Defence indicated that it was prepared to withdraw its objection. Ministers decided to re-open the inquiry, which was restricted to consider matters which have arisen since the close of the inquiry in February 2008.

The SiteThe site lies near the northern edge of the Lammermuirs and comprises 10.5 km 2 of gently undulating hill land, managed as heather moorland for grouse shooting. The northern site

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boundary is also the boundary between Scottish Borders Council and East Lothian Council. The nearest settlements are as follows:

Gifford, 7.7 km to the north north west;

Cranshaws, 8 km to the east north east;

Longformacus, 9 km to the east;

Westruther, 9 km to the south south east; and

Oxton, 7.5 km to the south west.

The site takes the form of a shallow bowl, with the highest area around the edges. Meikle Says Law (535 m), the highest point in the Lammermuir Hills lies just outside the northern site boundary. A 400 kV pylon line and associated track crosses the site from west to north east. The Dye Water and associated tributaries run across the site. An access track lies on the northern side of the Dye Water, leading to an unclassified public road, which joins the road that leads from Longformacus to the B6355.

Description of the Development The application proposes 48 turbines, all except 7 in the northern part of the site would be 80 m high to the hub, 125 m high to blade tip. The 7 northern turbines would be 65 m high to the hub and 110 m high to blade tip. There would be 7 borrow pits and 3 meteorological masts. The construction compound would be located near the centre of the turbine area, with a sub station for connection to the pylon line adjacent. The total power output would be 144 MW.

Vehicular access would be taken primarily from the B6456, 1.2 km east of Westruther. A secondary access would be taken from the track to the north of the Dye Water. Access tracks would connect the turbines.

North British Windpower’s CaseThe recommendation in the original report was to refuse consent and deemed planning permission because of the objection from the Ministry of Defence. That objection has now been conditionally withdrawn. North British Windpower and the Ministry of Defence have agreed the terms of an aviation condition to be attached to a section 36 consent. This would ensure that turbines could not be erected until a Radar Mitigation Scheme has been agreed and that they could not become operational until the air traffic control radar at RAF Leuchars has been integrated into the UK Command and Control System (UCCS). North British Windpower would fund this mitigation system and any alternative mitigation should it prove not to be successful. There are a number of other wind farm schemes where similar conditions have been applied, including for the Clyde wind farm.

The emergence of further consented and possible wind farm development in the vicinity has not increased the cumulative visual and landscape impacts associated with the application. Contrary to submissions made by the Joint Community Councils, proposals at scoping stage do not have to be taken into account in the assessment of cumulative impact.

The national energy and development plan policy support for a wind farm at Fallago Rig has increased. Scottish Natural Heritage does not consider there needs to be an updated assessment of the likely impacts on upland birds. No other relevant material consideration has changed. In particular, the design of the proposed wind farm is the same as that which was found to be acceptable previously.

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The Ministry of Defence’s case An Aviation Memorandum of Understanding was signed by aviation stakeholders, Government departments and the wind energy industry in June 2008. Its purpose is to find mitigation of the effects of wind farms on radar systems. The discussions between the Ministry of Defence and North British Windpower were undertaken in the context of the memorandum and were not covert.

It is now known that there are a number of technical solutions which can mitigate the impact of wind farms on radars, including integration of an air traffic control radar into the UK Command and Control System (UCCS). For Fallago Rig, the integration of the air traffic control radar at RAF Leuchars is considered to be the most appropriate mitigation. This would not reduce the impact on Brizlee Wood, but it would compensate for it by providing information from a radar system which would suffer no interference from Fallago Rig.

The Additional Radar Study investigated the changes which need to be made to the UCCS to enable it to accept and process additional radars. It reported in March 2010 that such an integration would be technically feasible. The Air Traffic Control Data Transport Study is expected to report in June/July 2010. It is considering how data from the air traffic control radars can be extracted in the correct format and transferred to the UCCS. Enough work has been done so far to indicate that this is possible. Both studies are classified.

The Ministry of Defence and North British Windpower have agreed the terms of the proposed aviation condition, which would require North British Windpower to enter into a Radar Mitigation Scheme. This specifies that the mitigation scheme has to be agreed before any turbines are erected and that the radar at RAF Leuchars is integrated into the UCCS before the turbines are operational. North British Windpower is responsible for funding the mitigation scheme, including the integration of RAF Leuchars and any alternative mitigation as required by the Ministry of Defence if the integration proves not to be successful.

Scottish Borders Council’s Case The cumulative landscape and visual impact of Fallago Rig is the key reason for objection. Since 2008 there are many more areas of the Scottish Borders and southern Scotland affected by wind farm development, which increases the importance of the remaining undeveloped areas, including Fallago Rig. Most of the wind farms in the Lammermuirs relate to one of the two groups – Dun Law in the west and Crystal Rig in the east. Other wind farms have also been developed in the lowlands and add to the cumulative effect.

The new Scottish Natural Heritage guidance emphasises the importance of a strategic approach to wind farm development. The guidance considers the concept of thresholds of wind farm development, one of the key constraints to further wind farm development being whether an area has reached its cumulative capacity. On the western edge of the Lammermuirs there is a landscape with wind farms. On the eastern edge there is a wind farm landscape, extending east to a landscape with wind farms near Coldingham.

There is a 16-17 kilometre gap in the central part of the Lammermuirs. The location of Fallago Rig within this gap would have the effect of linking the wind farm groups to the west and east. This has become more critical since 2008 because of the increase in development in each of the eastern and western groups and elsewhere. If Fallago Rig goes ahead, the whole of the Lammermuirs would become a landscape with wind farms.

In the light of the increased cumulative impacts, the planning balance should be re-drawn and should conclude that the benefits do not outweigh the impacts. The aviation condition

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is unreasonable and is therefore ultra vires. There is the possibility that the turbines could be erected but not become operational. While progress has been made on the Radar Mitigation Scheme, the issue is not resolved. The application should, therefore, be refused. If the radar issue is resolved, a fresh application could be lodged.

In relation to the alleged unauthorised works, Roxburghe Estates claimed that the works along the Dye Water were undertaken to improve existing tracks and to create a link for Rawburn and Byrecleuch Farms, which are now managed as one unit. Both proposed bridge crossings are therefore agricultural permitted development. Scottish Borders Council considers that the works undertaken are in exactly the same positions as the crossings for the wind farm access track and are much more large scale than would be required for agricultural use. The council concluded that the works were unauthorised and that planning permission was required. Roxburghe Estates was asked to stop work and duly complied. The council did not require the works to be reinstated pending the outcome of the Fallago Rig application or further discussion about possible agricultural works.

Other Objectors’ CasesThe Joint Community Councils: The previous report found significant cumulative landscape and visual impact. This remains the case and is multiplied in significance with the increase in built, approved and planned development since 2008. The Supplementary Environmental Information 2010 omits a number of wind farms at scoping stage. These should be included, as they are also in the planning process. There are now 464 turbines constructed, consented or in planning compared to 264 in 2008. Turbines now are much higher – they averaged 80 metres high in 2008 and now average 126 metres, including two schemes with 145 metre high turbines, the highest in Scotland. The scale and frequency of the cumulative impacts would be far greater now. The much larger wind farm developments surrounding the central undeveloped core of the Lammermuirs mean that this central core is of strategic importance and much higher value. Tourism activity is declining as wind farms become more prominent. There is widespread opposition and considerable anger locally at the extent of wind farm development to date.

Black Mountain Farms and others: There is no proven solution to the radar impact of Fallago Rig, which was also the case in 2008. The proposed aviation condition is not precise or enforceable. It does not comply with the tests in Circular 4/1998.

New Scottish Natural Heritage guidance emphasises the importance of the balance between wind farms and the open undeveloped landscape between them. The increase in wind farms on the eastern and western ends of the Lammermuirs has heightened the value of the remaining open and largely undeveloped core of the hills, where Fallago Rig is proposed. Fallago Rig would change the distinctive skyline of the higher core of the hills. The distances between the Crystal Rig group (7-8 kilometres) and the Dun Law group (7 kilometres) and Fallago Rig are not that large given the scale of the developments, the number of turbines and their horizontal extent. Fallago Rig would result in the entire hill range being dominated by wind farm development.

The unauthorised works undertaken along the Dye Water demonstrates a lack of concern for the impact on the environment.

The bird survey for Fallago Rig is now 8 years old and out of date. The Pearce-Higgins study found that the breeding success of upland birds was seriously diminished within 500 metres of turbines. A new study in the Lammermuirs is proposed to be carried out on land adjoining the Fallago Rig site.

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In relation to local plan policy D4, the previous report concludes that the positive wider environmental benefits of the generation of renewable energy and the contribution this would make to the achievement of Government targets outweigh the damage Fallago Rig would cause to the environment locally. There is no explanation of how the planning balance has been conducted. Scottish Government targets are the same now as in 2008 but since then there have been a significant number of schemes built and consented.

The decision to reopen the inquiry using Rule 21(4) of the Inquiries Procedure Rules is flawed. All radar issues were considered at the first inquiry. There has been no new factual evidence only evidence of a changed intention by the Ministry of Defence. Scottish Ministers’ officials have had covert discussions with the applicant and the Ministry of Defence and have signalled their intent to grant consent. This is a breach of natural justice.

Scottish Natural Heritage: In relation to ornithology, Scottish Natural Heritage previously advised that the Fallago Rig site does not contain the range of bird species to flag it as sensitive. The wind farm would not impact significantly on bird interests. The information in the Pearce-Higgins paper does not change Scottish Natural Heritage’s position on birds. They do not consider that the paper should lead to an updated assessment of the likely effects on upland birds at the site.

Scottish Natural Heritage continues to object on the grounds of the landscape and visual impact of the proposed wind farm and rests on advice it gave on these matters in a written submission to the previous inquiry.

Reporter’s ReasoningThe development would make a significant contribution towards achievement of renewable energy targets. The visual and landscape impacts of the proposed development alone would be acceptable. The cumulative landscape and visual impacts would be significant but would be outweighed by the generation of renewable energy. Although there are more wind farm developments in the local area than were considered at the 2008 inquiry, none of these would reduce the gaps between Fallago Rig and other wind farms beyond what was considered previously. There are no issues in relation to habitats, peat, ecology, fisheries or cultural heritage which could not be mitigated by conditions. There is no evidence of significant impacts on tourism or on the operation of neighbouring estates. Impacts on recreational users would not be significant. Mitigation of the landscape and visual impacts has taken place through the design and location of the wind farm.

There would be conflict with development plan policies, although there would be no conflict with the renewable energy policy of the local plan. The development complies with national planning policies and advice. Since 2008, national policy support for renewable energy has strengthened.

The Ministry of Defence advises that a Radar Mitigation Scheme is now possible and that Fallago Rig wind farm would not have a detrimental impact on national security. Although the development would still have an impact on the remote radar head at Brizlee Wood, the integration of the air traffic control radar at RAF Leuchars into the UK Command and Control System would result in a satisfactory recognised air picture. Studies have revealed that this integration would be technically feasible and could be achieved within a reasonable timescale. Therefore, to grant consent subject to a suspensive condition would no longer be unreasonable. The integration of the radar at RAF Leuchars would be funded by North British Windpower. If the integration did not achieve the predicted result, North British Windpower would fund alternative mitigation or make a payment to the Ministry of Defence

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to achieve it by some other means. These requirements would be specified in the Radar Mitigation Scheme.

The application under section 36 and the deemed application under section 57 should be granted, subject to the conditions contained at Appendix 1 of the report to the re-opened inquiry, which include a suspensive condition regarding the Radar Mitigation Scheme to be attached to the section 36 consent.`

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Contents

PageReport Summary

Contents

PreambleAppearancesAbbreviations used in this report

Chapter 1 – Background

Chapter 2 – The case for North British Windpower

Chapter 3 – The case for the Ministry of Defence

Chapter 4 – The case for parties against the development The Joint Community CouncilsBlack Mountain Farms and othersScottish Borders Council Scottish Natural Heritage

Chapter 5 – Conditions

Chapter 6 – Findings of fact

Chapter 7 – Reasoning and recommendations

AppendicesAppendix 1 Recommended conditionsAppendix 2 Inquiry documents

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Preamble

The Directorate for Planning and Environmental Appeals

4 The CourtyardCallendar Business Park

Callendar RoadFalkirk

FK1 1XR

The Scottish MinistersMeridian Court5 Cadogan StreetGlasgowG2 6AT

File reference: IEC-3-42

Ministers

1. In accordance with my revised minute of appointment dated 12 November 2009, I held a re-opened public local inquiry in connection with the application by North British Windpower Ltd. This was for consent under section 36 of the Electricity Act 1989 for the construction and operation of a wind farm at Fallago Rig (or Ridge), near Duns, Scottish Borders. The applicant also sought a direction under section 57 of the Town and Country Planning (Scotland) Act 1997, granting deemed planning permission for the development.

2. The original inquiry was held in February 2008 because the planning authority, Scottish Borders Council, objected to the proposed development. The inquiry was re-opened because new evidence on radar impact emerged and evidence on all matters that have arisen since the original inquiry was heard at the re-opened inquiry. All parties to the previous inquiry, all those who made representations on the original application and all those who were consulted previously were asked whether they wished to take part in the re-opened inquiry. All parties were consulted with regard to the matters that should be considered at the re-opened inquiry.

3. The re-opened inquiry was held in the Volunteer Hall, Duns and started on 13 April 2010, sitting for 5 days until 22 April. Oral evidence was presented at the inquiry on behalf of the applicant, the Ministry of Defence, Cranshaws, Ellemford and Longformacus Community Council and Gordon And Westruther Community Council (the Joint Community Councils) and Black Mountain Farms, Cranshaws Ltd, Moorfoot Capital Management, Faccombe Estates Ltd, Lauderdale Estates, Burncastle Estate, Horseupcleuch Estate and the Lammermuir Protection Group (Black Mountain Farms). A full list of witnesses appearing on behalf of these parties appears below. Scottish Natural Heritage and Scottish Borders Council made additional written submissions to the inquiry and the council took part in the discussion about conditions. East Lothian Council chose not to appear.

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4. Consultation responses on the 2010 Supplementary Environmental Information were received from 18 organisations.

5. I made another accompanied inspection of some of the site and the surrounding area on 5 May 2010. In addition, I undertook unaccompanied site inspections of the surrounding area before, during and after the inquiry.

6. My report contains 7 chapters and 2 appendices: Chapter 1 – Background; Chapter 2 – The case for North British Windpower; Chapter 3 – The case for the Ministry of Defence; Chapter 4 – The case for parties against the development; Chapter 5 – Conditions; Chapter 6 – Findings of fact; Chapter 7 – Reasoning and recommendation; Appendix 1 – Suggested conditions; and Appendix 2 – Inquiry documents.

7. The original and re-opened inquiries were run, by analogy and with the agreement of all parties, in accordance with the Town and Country Planning (Inquiries Procedure) (Scotland) Rules 1997 as amended in 1998. Circular 17/1998 explains the operation of the rules. The circular states that, in exceptional circumstances, evidence may be considered after the inquiry is closed, but only after parties have been given an opportunity to comment on it either in writing or at a re-opened inquiry (paragraph 54, Annex B).

8. After the close of the inquiry, Black Mountain Farms’ planning agent submitted copies of correspondence that had taken place in June and July 2010 with the Renewable Energy Division of the Scottish Government in relation to the consented capacity of a wind farm scheme. North British Windpower commented on this exchange on 14 July 2010. Copies of this correspondence are on the case file. In this case, I do not consider that there are any exceptional circumstances and I have not taken this correspondence into account in my report. In any event, at the inquiry Black Mountain Farms raised the issue of the precise balancing exercise in my previous report. I have dealt with this issue in Chapter 6 of this report. I do not consider that the correspondence referred to adds anything new to this matter.

9. Prior to the re-opening of the inquiry, there was extensive correspondence between Black Mountain Farms and the Directorate of Planning and Environmental Appeals regarding the re-opening. In brief, Black Mountain Farms alleged that the reopening was not competent for various reasons. These submissions were also made by Black Mountain Farms in closing submissions to the inquiry. I have summarised this part of their closing submissions in Chapter 4 of this report. North British Windpower commented on these submissions and I have summarised these comments in Chapter 2. I have made no findings of fact in relation to these issues, as I do not consider that they are matters for me to determine. Copies of all parties’ closing submissions to the inquiry accompany this report.

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Appearances

For North British Windpower:

Roy Martin QC, who led,

Andrew Shaw, MA, ACA, Managing Director North British Windpower LtdRebecca Rylott, BA (Hons), Dip UD, MLI, Entec UK LtdDavid Kenyon, BA (Hons), MRTPI, Entec UK Ltd

For the Ministry of Defence:

Ailsa Wilson QC, who led,

Group Captain Christopher Knapman, Royal Air Force

For Black Mountain Farms, Cranshaws Ltd, Moorfoot Capital Management, Faccombe Estates Ltd, Lauderdale Estates, Burncastle Estate, Horseupcleuch Estate and the Lammermuir Protection Group (Black Mountain Farms):

John Campbell QC, who led,

Carol Anderson, Dip LA, MLI, landscape architectMark Steele, Dip LA, MLI, landscape architect, Mark Steele ConsultantsThe Duke of Northumberland, MRICS, landowner Burncastle EstateIan Kelly, BSc (Hons), Dip TP, MRTPI, Graham and Sibbald

For Cranshaws, Ellemford and Longformacus Community Council and Gordon and Westruther Community Council (the Joint Community Councils)

David Lochead, BSc (Hons), Chair of Cranshaws, Ellemford and Longformacus Community CouncilMark Rowley, Vice Chair of Cranshaws, Ellemford and Longformacus Community Council

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Abbreviations

dB decibel (unit of noise measurement)dB(A) decibels measured on a meter with a frequency weighting (A)ECoW ecological clerk of worksES environmental statement GLVIA Guidelines for Landscape and Visual Impact AssessmentGW GigaWatt (one billion (109) watts)km kilometrekm2 square kilometrekV kilovolt (one thousand volts)LBAP local biodiversity action planLCA landscape character areaLCT landscape character typem metrem/s metre per secondMOD Ministry of DefenceMW MegaWatt (one million watts)NATS National Air Traffic ServicesNERL NATS (En-Route) LtdNBWP North British Windpower LimitedNPF National Planning FrameworkNPPG National Planning Policy GuidelineOS Ordnance SurveyPAN Planning Advice Note RAF Royal Air ForceRAP recognised air pictureRSPB Royal Society for the Protection of BirdsSAC special area of conservationSBC Scottish Borders Council SEI supplementary environmental informationSEPA Scottish Environment Protection AgencySNH Scottish Natural HeritageSPP Scottish Planning PolicyUK United KingdomUCCS UK Command and Control SystemZTV zone of theoretical visibility

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Chapter 1

Background

1.1 The contents of this chapter update the information contained in Chapter 1 of the previous report. All of the information in Chapter 1 of the previous report remains extant, unless specifically superseded by paragraphs in this Chapter.

Environmental information

1.2 Additional Supplementary Environmental Information was submitted in February 2010. This consists of two volumes. Volume 1, Text, comprises: Introduction; Overview of New Information; Energy Policy; Planning Policy; Ornithology; Cumulative Landscape and Visual Impact; Landscape and Visual Addenda: A – Methodology, B – Baseline Description of Landscape Resource, C – Indirect Cumulative Landscape Effects, Viewpoint Analysis, Effects on Routes, Effects on Recreational Sites and the A3 figures and visualisations are contained in Volume 2: Figures.

Energy policy and legislation

1.3 The Climate Change Act 2008 (NBW20) sets a target to ensure that the net UK carbon account for 2050 is at least 80% lower than the 1990 baseline.

1.4 The European Union Climate and Energy package was formally agreed in April 2009. This is Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources (MOD21). This commits the European Union to achieving a reduction in greenhouse gas emissions of 20% by 2020 compared to 1990 levels. The package includes a binding renewables target of 20%. The UK’s share of this target is to deliver 15% renewable energy by 2020.

1.5 The UK Low Carbon Transition Plan 2009 is a White Paper setting out the UK Government’s low carbon transition plan to 2020 (MOD23). It identifies a number of key steps, including an intention to produce 30% of the UK’s electricity by renewable means by 2020.

1.6 The UK Renewable Energy Strategy published in July 2009 (MOD22) confirms the 15% renewable energy by 2020 target. It explains that the precise breakdown of the target between technologies will depend on how investors respond to the incentives put in place. However, renewables could provide more than 30% of UK electricity compared to around 5.5% in July 2009. The strategy envisages that more than two thirds of that could come from on and offshore wind, but there could also be important contributions from hydro, sustainable bioenergy, marine sources and small scale technology.

1.7 The Climate Change (Scotland) Act 2009 (NBW23) sets a target for reduction in greenhouse gas emissions for 2050 and an interim target for 2020. The 2050 target is to ensure that emissions for that year are at least 80% lower than the baseline. The interim target for 2020 is to ensure that emissions are at least 42% lower than the baseline.

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1.8 The Scottish Government Climate Change Delivery Plan 2009 (NBW24) identifies the measures required to meet the interim target for 2020 and the work to be done to prepare for the more radical changes needed by 2030 if the emissions target for 2050 is to be achieved. The four transformational outcomes which the Scottish Government is working towards are:

a largely decarbonised electricity generation sector by 2030, primarily using renewable sources for electricity generation, with fossil fuelled plants using carbon capture and storage;

a largely decarbonised heat sector by 2050, with significant progress by 2030; almost complete decarbonisation of road transport by 2050, with significant progress

by 2030; and a comprehensive approach to ensure that carbon is fully factored into strategic and

local decisions about rural land use.

1.9 The Scottish Government Renewables Action Plan 2009 (NBW25) was published at the same time as the Delivery Plan. Its purpose is to identify what needs to be done within the renewables sector and by when in order to support the Delivery Plan objectives. The Action Plan explains that Scotland is currently committed to achieve a headline target of 20% of total Scottish energy use coming from renewables sources by 2020. To achieve this energy target, individual targets on renewable electricity, heat and transport have been put in place. For electricity, the target is to achieve 50% of gross electricity consumption from renewable sources by 2020, with an interim target of 31% by 2011. The plan indicates that 20.1% of electricity consumption from renewables was achieved by June 2009.

1.10 The plan states that there will be a continued expansion of the portfolio of onshore wind farms to help meet the renewables target, with a robust planning framework supporting timely processing of consents applications and ensuring wind farms are consented where they are environmentally acceptable.

1.11 With regard to aviation, the plan explains that there are currently 10 section 36 projects with an objection in place concerning either civil or defence radar. With the inclusion of council planning authority applications, there are at least 14 applications (equating to 1 GW of potential renewable energy) clustered in the south-west of Scotland which have an objection. The plan identifies the establishment of the South West Scotland Regional Aviation Solution Group to bring together key players to find a solution.

National planning policy and advice

1.12 National Planning Framework 2 was published in June 2009. It states the Scottish Government commitment to establishing Scotland as a leading location for the development of renewable energy technology and an energy exporter over the long term. It mentions that hydropower and onshore wind are the renewable technologies likely to make the largest contributions initially.

1.13 The Scottish Planning Policy (SPP) was published in February 2010. It collates and replaces all of the previous SPPs and NPPGs. It provides a more succinct policy statement on all of the subjects covered by the previous documents, although the essence of the policies remains unchanged. The following paragraphs on the SPP supersede paragraphs 1.28-1.42 and 1.49-1.52 in Chapter 1 of the previous report.


1.14 The SPP states that the planning system has an important role in supporting the achievement of sustainable development through its influence on the location, layout and design of new development. Amongst other things, decision making in the planning system should:

contribute to the reduction of greenhouse gas emissions in line with the commitment to reduce emissions by 42% by 2020 and 80% by 2050, contribute to reducing energy consumption and to the development of renewable energy generation opportunities;

protect and enhance the cultural heritage; and protect and enhance the natural environment, including biodiversity and the

landscape (paragraph 37).

1.15 In the section on Renewable Energy, the SPP states that the commitment to increase the amount of electricity generated from renewable sources is a vital part of the response to climate change. Renewable energy generation will contribute to more secure and diverse energy supplies and support sustainable economic growth. The current target is for 50% of Scotland’s electricity to be generated from renewable sources by 2020 and 11% of heat demand to be met from renewable sources. These targets are not a cap. Hydroelectric and onshore wind power are currently the main sources of renewable energy supplies. This is expected to continue, but will increasingly be part of a wider renewables mix, as other technologies become commercially viable (paragraph 182).

1.16 When granting planning permission, authorities should include conditions for the decommissioning of developments, including their ancillary infrastructure, and for site restoration. Authorities should also ensure that sufficient finance is set aside to enable operators to meet their restoration obligations, and should consider financial guarantees through a section 75 agreement (paragraph 186).

1.17 Planning authorities should support the development of wind farms in locations where the technology can operate efficiently and environmental and cumulative impacts can be satisfactorily addressed (paragraph 187). When considering cumulative impact, planning authorities should take account of existing wind farms, those which have permission and valid applications for wind farms which have not been determined. Decisions should not be unreasonably delayed because other schemes in the area are at a less advanced stage in the application process. The weight that planning authorities attach to undetermined applications should reflect their position in the application process. Cumulative impact will largely relate to the scale and proximity of further development (paragraph 188). Existing and approved grid capacity should be maximised wherever possible. However, grid constraints should not be used as a development constraint where renewable energy potential exists (paragraph 191).

1.18 The previous report referred to NPPG 5 – Archaeology and Planning (paragraphs 1.29-1.31, previous report) and NPPG 18 – Planning and the Historic Environment (paragraphs 1.41-1.42, previous report). In October 2008 both documents were replaced by SPP 23 – Planning and the Historic Environment, which superseded and consolidated NPPGs 5 and 18. SPP 23 set out the national planning policy for the historic environment and indicated how the planning system would contribute towards the delivery of Scottish Ministers’ policies as set out in the Scottish Historic Environment Policy (SHEP)


produced by Historic Scotland. SPP 23 has also now been superseded by the Scottish Planning Policy (SPP).

1.19 The SPP deals with the Historic Environment in paragraphs 110-124. Amongst other things, the SPP states that the historic environment is a key part of Scotland’s cultural heritage and it enhances national, regional and local distinctiveness, contributing to sustainable economic growth and regeneration. It is of particular importance for supporting the growth of tourism and leisure, and contributes to sustainable development through the energy and material invested in buildings, the scope for adaptation and reuse and the unique quality of historic environments which provide a sense of identity and continuity for communities (paragraph 110).

1.20 Developers should take Government policy and guidance on the historic environment into account when forming development proposals (paragraph 110). Scheduled monuments are archaeological sites, buildings or structures of national or international importance. The purpose of scheduling is to secure the long term legal protection of the monument in the national interest, in-situ and as far as possible in its existing state and within an appropriate setting. Scheduled monument consent is required for any works that would demolish, destroy, damage, remove, repair, alter or add to the monument. Where works requiring planning permission affect a scheduled monument, the protection of the monument and its setting are important considerations. Development which will have an adverse effect on a scheduled monument or the integrity of its setting should not be permitted unless there are exceptional circumstances (paragraph 118).

1.21 Archaeological sites and monuments are an important, finite and non-renewable resource and should be protected and preserved in situ wherever feasible. The presence and potential presence of archaeological assets should be considered by planning authorities when allocating sites in the development plan and when making decisions on planning applications. Where preservation in-situ is not possible, planning authorities should, through the use of conditions or a legal agreement, ensure that developers undertake appropriate excavation, recording, analysis, publication and archiving before and/or during development. If archaeological discoveries are made during any development, a professional archaeologist should be given access to inspect and record them (paragraph 123).

1.22 Scotland’s landscape and natural heritage are internationally renowned and important, underpinning significant industries such as the food, drink and tourism industries, and are a key component of the high environmental quality which makes Scotland an attractive place in which to live, do business and invest. Improving the natural environment and the sustainable use and enjoyment of it is one of the Government’s national outcomes (paragraph 125).

1.23 International and national designations can be complemented by local designations which protect, enhance and encourage the enjoyment and understanding of locally important landscapes and natural heritage. Local designations should be clearly identified and protected through the development plan. The reasons for designation should be clearly explained and the on-going relevance and function of local designations should be considered when development plans are prepared. Some local designations, such as Local Nature Reserves, are a statutory designation. Other local designations are non-statutory. Planning authorities are encouraged to limit non-statutory designations to two


types - local landscape areas and local nature conservation sites. Both statutory and non-statutory local designations should be identified and protected in the development plan and the factors which will be taken into account in development management decision making should be set out. The level of protection given to local designations through the development plan should not be as high as the level of protection given to international or national designations (paragraph 139).

1.24 The purpose of designating a local landscape area in the development plan should be to:

safeguard and enhance the character and quality of landscapes which are important or particularly valued locally or regionally, or

promote understanding and awareness of the distinctive character and special qualities of local landscapes, or

safeguard and promote important settings for outdoor recreation and tourism locally (paragraph 140).

1.25 PAN 45 – Renewable Energy Technologies Annex 2 – Spatial Frameworks and Supplementary Planning Guidance for Wind Farms was published in November 2008. Appendix 1 to Annex 2 gives advice on the use of suspensive conditions and states:

“Text of a statement on the Energy Consents website dated 4 August 2008

We have been asked a number of times to clarify our position on whether we will use suspensive conditions to consent s36 applications while leaving the resolution of any outstanding aviation and radar issues to a later stage. As we wrote to Airtricity and NATS in respect of the Clyde Windfarm application in October last year, it is important that any such conditions which require subsequent approval by Scottish Ministers need to provide specification of the nature and extent of the mitigation measures required. It is also important that there is clarity about the identification of the type of solution or solutions to be developed and that there is agreement between the developer and the relevant operator that such a solution can be delivered in a reasonable timeframe. Where such specification and clarity can be made and agreed between the developer and the relevant operator then we will consider the use of suspensive conditions in this way.”

Development plan policies

1.26 The Consolidated Borders Structure Plan (SBC101) comprises:

the Scottish Borders Structure Plan 2001-2011, approved in 2002 (this was considered at the previous inquiry;

the Scottish Borders Woodland Strategy, approved 2005; and the structure plan alteration on housing, approved in June 2009 (updates Chapters

1 and 7 and replaces Chapter 4 of the structure plan 2001-2011).

1.27 The relevant structure plan policies were outlined in paragraph 1.55 of the previous report. The consolidation of the structure plan has not resulted in any change to these policies. The structure plan alteration has extended the life of the structure plan to 2018.


1.28 At the previous inquiry the site lay within the areas of two adopted local plans: the Berwickshire Local Plan 1994 and the Ettrick and Lauderdale Local Plan 1995. Policies of the Scottish Borders Finalised Draft Local Plan 2005 were also considered. The Scottish Borders Local Plan was adopted in September 2008. Paragraphs 1.56 and 1.57 detailing the policies of the previously adopted local plans are now superseded. There has been no change to the draft policies considered at the previous inquiry and detailed in paragraph 1.58 of the original report*.

*[Note: there is an error in the previous report which states at paragraph 1.58 that policies of the Scottish Borders Consolidated Draft Local Plan 2004 were referred to. The wrong version of the local plan was cited, but the policies outlined in this paragraph are those of the Scottish Borders Consolidated Draft Local Plan 2005].

1.29 Scottish Borders Council published a Finalised Local Plan Amendment to the Scottish Borders Local Plan in August 2009. This updates the housing chapter of the adopted local plan amongst other things. It does not contain any matters of relevance to the proposed Fallago Rig wind farm.

Consultation responses

1.30 The Scottish Government Renewable Energy Division consulted a number of bodies regarding the Supplementary Environmental Information 2010. Their responses are summarised below.

Cranshaws, Ellemford and Longformacus and Gordon and Westruther Community Councils

Access to the Supplementary Environmental Information (SEI) is unnecessarily restrictive. It should be available online. The SEI does not mention strong policy support of offshore wind and tidal generation since 2008. It underplays new ornithological information. The cumulative landscape and visual impact of wind farm development in the Lammermuirs since 2008 has been massively underestimated, with no mention made of the considerable proposals at scoping stage. The Joint Community Councils’ concerns about the proposed development are more fully summarised in Chapter 4 of this report.

Royal Society for the Protection of Birds Scotland (RSPB)

Responded to original proposals in 2005 and the Supplementary Environmental Information in 2007. RSPB did not object to the proposed development. However, since then two potentially significant pieces of information have come to light, which are:

a research paper published in the journal ‘Mires and Peat’ in 2008 by Pearce-Higgins and others; and

RSPB 2009 survey of upland plots across southern Scotland.

This new information provides strong evidence to suggest the Lammermuirs may be of greater significance for at least two wading bird species, golden plover and curlew, than RSPB was previously aware of. The number of these species found in the survey in the environmental statement is now considered to be surprisingly low. Had this information been known at the time of the original RSPB response, they would have queried the environmental statement results more closely. It is likely that they would, at least, request additional survey effort to ensure the risk of under-recording was minimised.


Scottish Natural Heritage

Reiterated its response to the environmental statement and earlier Supplementary Environmental Information. Scottish Natural Heritage’s response to the proposed Fallago Rig wind farm is included in the previous report at Chapters 1 and 3 and in this report at Chapter 4.

1.31 The following organisations had no comment or made no change to their previous consultation response: Association of Salmon Fisheries Boards, Civil Aviation Authority, The Crown Estate, East Lothian Council, Health and Safety Executive, Historic Scotland, Marine Scotland, Ministry of Defence, NATS, Ofcom, River Tweed Commission, Scottish Borders Council, Scottish Environment Protection Agency, Scottish Government – Environmental Quality Directorate, and Transport Scotland.

1.32 There was no consultation response from BT, Mountaineering Council of Scotland, Forestry Commission Scotland, Scottish Rights of Way and Access Society and Forest Enterprises.


Chapter 2

The case for North British Windpower

Introduction

2.1 In correspondence before the inquiry, the Reporter indicated the matters that were relevant for consideration at the re-opened inquiry. These were as follows:

the new evidence on radar interference; the change to cumulative landscape and visual impact; the works that have been undertaken on site; any changes to the suggested conditions; the differences between the Scottish Borders Council Local Plan adopted on 4

September and the Finalised Local Plan; and relevant changes to the national policy framework.

2.2 Of these matters, North British Windpower considers the principal ones are the new evidence on radar interference, any change in the cumulative landscape and visual impact and changes in the local plan and national planning policy framework. Accordingly, these are the determining issues for the re-opened inquiry, along with conditions that would be appropriate if consent were to be granted.

2.3 Black Mountain Farms raised a number of issues said to be relevant in correspondence with the Directorate for Planning and Environmental Appeals before the inquiry re-opened. These related to the manner in which Scottish Ministers had come to re-open the inquiry; the conduct of the Reporter in relation to the procedure leading up to the re-opened inquiry; and the works which have taken place on the application site which were said to be unauthorised. Black Mountain Farms have withdrawn paragraphs 40-42 of the Statement of Case, which suggested that the Reporter had given rise to the appearance of bias and that she should either recommend refusal of the application without hearing evidence or recuse herself.

2.4 Black Mountain Farms also questioned the re-opening of the inquiry by reference to Rule 21 of the Town and Country Planning (Inquiries Procedure) (Scotland) Rules 1997 (the Inquiries Procedure Rules). This is misconceived. The inquiry is one made under section 36 of the 1989 Act and, in accordance with subsection (8), the procedure is provided by Schedule 8. In terms of paragraph 2(2) of that Schedule, the Scottish Ministers are required to hold a public inquiry where there has been an objection from the relevant planning authority. The Minute of Appointment of the Reporter states that this is the power being exercised by Scottish Ministers.

2.5 It is customary for the Inquiry Rules to be adopted in public inquiries under the Electricity Act 1989. Paragraph (4) of Rule 21 provides for the re-opening of an inquiry in specified circumstances. Paragraph (5) is critical to the argument advanced by Black Mountain Farms, and this provides that:


“The Secretary of State may in any case if he thinks fit cause the inquiry to be re-opened and shall cause it to be re-opened if asked to do so in accordance with paragraph (4) of this Rule.”

2.6 The effect of paragraphs (4) and (5) is that, whilst the Scottish Ministers may be required to re-open an inquiry in specified circumstances, they also have a general discretion to do so. In any event, Black Mountain Farms did not challenge the re-opening of the inquiry by way of an application for judicial review to the Court of Session and participated in the inquiry fully.

Radar issues

2.7 A revised section 36 aviation condition has been proposed by the Ministry of Defence and is acceptable to North British Windpower. The requirements of this aviation condition comprise three elements:

before erecting any turbine, North British Windpower must agree a Radar Mitigation Scheme for approval by the Scottish Ministers;

before operating any turbine, North British Windpower must implement all the measures of the Radar Mitigation Scheme required to be implemented by that time; and

post operation North British Windpower must comply with other obligations, including to take certain further steps if a defined aviation specification is not met.

2.8 The proposed aviation condition refers to the Heads of Agreement, which sets out the measures and obligations for the Radar Mitigation Scheme. The aviation condition and the Heads of Agreement therefore need to be considered together. The aviation specification is set out in the aviation condition and means that outside the defined airspace above the wind farm the operation of the turbines should not cause or contribute to a reduction in probable radar detection rates below a specified level. The heads of terms provide further details as to how the aviation specification would be tested and how it may be modified in certain circumstances.

2.9 As set out in the Heads of Agreement, the mitigation scheme would be a contract between North British Windpower and the Ministry of Defence. It would comprise:

the steps required to integrate the air traffic control radar at RAF Leuchars into the air surveillance and control system (the integration);

North British Windpower’s undertaking to promote a further scheme of mitigation in certain circumstances;

the payment which North British Windpower may be obliged to make; and the bond securing North British Windpower’s financial obligations.

2.10 With one exception, the contents and detailed obligations of the mitigation scheme contract have been agreed between North British Windpower and the Ministry of Defence in the Heads of Agreement, subject to formal legal drafting. The only element which is now missing to enable completion of the scheme is the detail of the steps required to complete the integration. As explained in the Heads of Agreement, this would be informed by a feasibility study. That feasibility study is underway as part of wider studies which are being taken forward by the Ministry of Defence and representatives of the UK


wind industry. The feasibility study would set out the detailed steps required to complete the integration, such that they can be readily incorporated into the Radar Mitigation Scheme. All reasonable endeavours would be used to complete the mitigation scheme within one month after the results of the related feasibility study become available.

2.11 Accordingly, it is clear what the mitigation scheme would comprise and how it would be produced. It is the first requirement of the aviation condition that the scheme must be agreed and approved before any turbine can be erected.

2.12 The second requirement of the aviation condition is that no turbine shall become operational until all measures required by that time in terms of the mitigation scheme have been carried out and approved. As set out in the Heads of Agreement, the only measure required by that time is the completion of the integration. The procedure for the implementation of the integration would have been set out in detail, first in the feasibility studies and then in the Radar Mitigation Scheme.

2.13 The Ministry of Defence has agreed to use its reasonable endeavours to complete the integration within two years of the release of funds for this purpose. This is consistent with the expected timetable for construction of the wind farm. In any event, it would be in North British Windpower’s commercial interests to avoid completion of the wind farm construction significantly in advance of the completion of the integration which would enable its operation.

2.14 The third requirement of the aviation condition is that, once the wind farm was operational, North British Windpower must comply with all other obligations of the Radar Mitigation Scheme. These obligations include meeting costs incurred by the Ministry of Defence in connection with the operation and maintenance of the integration as long as it was required. They also include provisions in the event that the mitigation provided by the integration failed to achieve the defined Aviation Specification.

2.15 Whether or not the Aviation Specification would be met is an empirical test which cannot be undertaken until the wind farm becomes operational. It can never be absolutely certain in advance to what extent that test would be satisfied. The Ministry of Defence is satisfied that the integration would be sufficient to allow the development to become operational. North British Windpower understand that, even if the Aviation Specification was not met in full, the benefits of the mitigation would be sufficient (not only for Fallago Rig but also for other existing wind farms in the area) to enable any residual effects to be managed, without any threat to national security.

2.16 The operation of the turbines is not dependent on the Aviation Specification’s being met. The Ministry of Defence has stated that it anticipates that the integration would allow the Aviation Specification to be met, but there is no requirement in the aviation condition or Heads of Agreement that the turbines must cease from operation if the Aviation Specification was not met.

2.17 Nevertheless, the aviation condition does require that the Radar Mitigation Scheme would provide for further steps to be taken by North British Windpower if the Aviation Specification was not met. These are set out in the Heads of Agreement, where North British Windpower would promote a further scheme of mitigation. If this cannot be


achieved, North British Windpower would make a specified financial contribution to the costs of any further mitigation implemented by the Ministry of Defence.

2.18 North British Windpower is reluctant to accept a condition restricting any construction work until the air traffic control radar at Leuchars has been integrated. It is hoped that the wind farm would be constructed when the integration process was underway. The integration should be achieved by the beginning of 2013. Not allowing the wind farm to begin construction until that time would therefore cause considerable delay in the production of renewable energy.

2.19 Circular 4/1998 states that there is no requirement to be satisfied that there is a reasonable prospect that the measures required to make a development acceptable will be provided within the lifetime of the permission concerned. An example is given where houses are built but cannot be occupied until sewage infrastructure in place. This is similar to the erection but not operation of turbines until a Radar Mitigation Scheme is in place. In the case of Fallago Rig, there is every possibility that the mitigation would be provided, as confirmed by the Ministry of Defence in the letter of 1 July 2009.

2.20 North British Windpower included extracts from a number of recent wind farm decisions where suspensive conditions relating to aviation have been applied. These include Clyde wind farm (NBW14), Middlemoor (NBW15) and Tween Bridge, (NBW13). In all cases the consistent approach taken by Reporters/Inspector and/or the Scottish Ministers/Secretary of State is to phase conditions to the agreement of a radar mitigation scheme (or similar) followed by implementation of recommendations prior to the operation of turbines. The conditions do not prevent the erection of turbines prior to the operation of the appropriate radar fix. This is the approach agreed at Fallago Rig. North British Windpower considers that this provides sufficient safeguards with regard to the protection of national security interests. North British Windpower has every confidence that a Radar Mitigation Scheme can be agreed.

2.21 Scottish Borders Council’s written submission states that the potential for environmental harm resulting from constructed, but non-operational, turbines would outweigh any benefits. North British Windpower does not believe that this situation would arise. The Ministry of Defence has stated that it has every confidence that the technical measures identified would provide sufficient mitigation.

2.22 North British Windpower considers that the evidence given on radar issues by the Ministry of Defence should be regarded as the most reliable evidence. The Ministry of Defence is responsible for the air defence of the United Kingdom. They identify and assess the risks which may be posed as a result of wind farm development. The planning system is not responsible for ensuring that the air defence system is in good and effective order.

2.23 There was no competing evidence on radar issues from any other witness. The Black Mountain Farms’ planning witness was critical of the Ministry of Defence’s position but he had no proper basis for being so. His evidence was effectively to suggest that the Ministry of Defence’s evidence should not be accepted. In cross-examination he accepted that the air defence of the United Kingdom was a matter for the Ministry of Defence and not the planning system and that this ought to be the end of any challenge to the position of the Ministry of Defence. This was Black Mountain Farms’ position at the original inquiry, when they supported the Ministry of Defence.


2.24 Black Mountain Farms considers that the aviation condition does not comply with SEDD Circular 4/1998, because the Radar Mitigation Scheme must comply with the circular. The principle in the Grampian case (Grampian Regional Council v City of Aberdeen District Council 1984 SC (HL) 58) was that commencement of development may be made dependent upon the occurrence if an external event which is beyond the control of the applicant and the planning authority. That case involved the making of a roads stopping up order. The case did not suggest that the order itself needed to be judged against planning principles. It was an external event upon which the commencement of development would depend. The suggested Radar Mitigation Scheme for Fallago Rig is similar. The scheme is a matter for the Ministry of Defence in exercise of their air defence responsibilities. The scheme would be comprised in a legally binding contract between North British Windpower and the Ministry of Defence, with the Ministry of Defence responsible for monitoring compliance.

2.25 Scottish Borders Council considers that the aviation condition is unacceptable. The council is concerned that the turbines would not become operational until the aviation specification was achieved and the Ministry of Defence cannot state that it would be achieved. The council suggests that the adverse impacts of the wind farm may be experienced without the corresponding benefits from its operations. This is misconceived.

2.26 The Ministry of Defence is content that, once the Radar Mitigation Scheme has been agreed, the turbines can become operational as long as the Leuchars integration has been completed. By that time there would be no uncertainty such as the council suggests. Even if the integration were not by itself sufficient to achieve the Aviation Specification, the Ministry of Defence is satisfied that other steps could be carried out. A judgement must be made between deferring the benefits of the renewable energy from the scheme in return for certainty that the adverse effects would not arise without them and enabling the benefits to be realised as soon as possible. The evidence has demonstrated that there would be no material risk if the aviation condition were to be imposed.

2.27 Although Black Mountain Farms suggested there had been no change since 2008, in cross-examination the planning witness accepted that there were a number of matters which provided additional support for the need to address the potential effect of wind farm development on defence and civilian radars. These include the EU Directive (MOD21), the UK Renewable Energy Strategy (MOD22) and the UK Low Carbon Transition Plan (MOD23).

2.28 The report of the previous inquiry concluded that consent should be refused on the ground that the detrimental impact on national security weighed heavily against the proposed development. As the Ministry of Defence has withdrawn its objection, that position no longer prevails. There is no longer any reason with regard to radar issues why the application cannot be granted, subject to the imposition of an appropriate aviation condition.

Cumulative landscape and visual impact issues

2.29 North British Windpower prepared further Supplementary Environmental Information dated February 2010 (NBW37), which updates the cumulative landscape and visual impact assessment. It takes account of changes that have arisen since the original


Environmental Statement of May 2005 and the subsequent cumulative landscape and visual impact assessment reported in the Supplementary Environmental Information 2006 and at the 2008 inquiry.

2.30 Scottish Planning Policy (paragraph 188) advises that, when considering cumulative impact, planning authorities should take account of existing wind farms, those which have permission and valid applications which have not been determined. It states that decisions should not be unreasonably delayed because other schemes in the area are at a less advanced stage in the application process. The weight that planning authorities attach to undetermined applications should reflect their position in the application process. This advice is reflected in PAN 45 (paragraph 91). Both documents also advise that schemes should not be delayed in the absence of a spatial framework.

2.31 All of the environmental information on cumulative landscape and visual impact to date has considered the other wind farm development within a 60 kilometre search area. The methodology used is consistent with current guidance and that employed at the 2008 inquiry and agreed to in the Statement of Common Ground with Scottish Borders Council, East Lothian Council and Scottish Natural Heritage in 2007 (2008 inquiry document NBW55).

2.32 The same panoramic photographs were used in the 2008 inquiry and in the 2010 Supplementary Environmental Information. This was due to the limited time available for the preparation of the information and the time of year it had to be done. Photographs taken in the winter would not meet the strict criteria in the guidance The applicant’s landscape witness acknowledged that the label ‘Existing view’ used on the photomontages in the 2010 assessment was an error. She had visited each of the locations in order to check the appropriateness of the earlier photographs. In any event, the wireframes demonstrate the effect of all relevant wind farm developments (actual, consented and applications). No photograph could achieve this because there are some consented applications which have not yet been constructed.

2.33 The revised scope of the cumulative assessment may be considered in three parts: those wind farms previously assessed, which were existing in 2008, those whose status has changed since 2008and those wind farms which are the subject of new undetermined planning applications or appeals that have emerged since the inquiry in 2008.

2.34 The previously existing wind farms considered in the 2008 inquiry were Crystal Rig 1, Dun Law 1, Blackhill, and Bowbeat. There is no change to the cumulative assessment conclusions in respect of these wind farms from the 2008 inquiry.

2.35 The developments considered at the 2008 inquiry, but whose status has subsequently changed are as follows:

Crystal Rig 2 – now under construction (previously consented) Crystal Rig 2a – now under construction (previously an application) Aikengall – now constructed (previously consented) Dun Law 2 – now constructed (previously under construction) Toddleburn – now constructed (previously consented) Halkburn – now under construction (previously consented) and


Carcant – now under construction (previously consented).

2.36 All of the above wind farms were included in the assessment for the 2008 inquiry. The change in status leads to no change to the conclusions of the revised assessment because each of these developments was assessed on the assumption of their prior existence to Fallago Rig. All of these wind farms were included in the 2008 inquiry and illustrated on the relevant visualisations, allowing their cumulative affects to be judged as though they were existing.

2.37 The developments not previously considered at the 2008 inquiry are as follows:

Drone Hill / Coldingham Moor – consented (previously excluded as refused) Pogbie –consented Wester Dod (Aikengall 2) – Section 36 application Rowantree –Section 36 application Brockholes –application and Keith Hill –refused on appeal.

2.38 Due to the limited nature of the cumulative effects of these wind farms in combination with Fallago Rig, there would be no change to the original conclusions of the cumulative assessment considered at the 2008 Inquiry for the following reasons:

i) new proposals within the uplands have generally replicated the existing pattern of wind farm development (and effects). The new proposals appear as extensions or associations to existing clusters of development (Pogbie, Wester Dod, and Rowantree);

ii) the conclusions of the 2010 assessment are supported by the cumulative assessments undertaken by other landscape architects in respect of the Pogbie, Wester Dod, and Rowantree proposals (NBW 38);

iii) new development within the lowlands is physically remote and located within different areas of landscape character (Drone Hill and Brockholes);

iv) there is no new development proposed within the Central Lammermuirs, the landscape qualities of spaciousness, scale, and openness are uncompromised in terms of capacity and the separation distances considered at the 2008 inquiry remain unchanged; and

v) Fallago Rig would suffer from no apparent ‘extension’, ‘add-on’ or ‘overlapping’ of schemes that by default may appear to alter the proposed development.

2.39 Wester Dod (Aikengall 2) is a Section 36 application of 30 turbines, located on the south eastern edge of the Aikengall Wind Farm and the overall Crystal Rig group, on the eastern periphery of the Lammermuir plateau, 12.38 kilometres from Fallago Rig. Considering the distance separating these two proposals and the maintenance of the separation distance of about 8 kilometres between Fallago Rig and the Crystal Rig group considered at the 2008 inquiry, it is difficult to see how this could contribute towards new significant effects. As an ‘extension’, Wester Dod fits within the existing pattern of wind


farm development, appearing subsumed within the larger Crystal Rig group, either overlapping or contiguous with it. The previously predicted significant landscape and visual cumulative effects acknowledged at the 2008 inquiry and in the previous report are replicated. The Crystal Rig group appears ‘reinforced’ from the viewpoints where significant effects were previously noted (viewpoints 2, 4, and 5).

2.40 Wester Dod would mostly be experienced from the eastern-most section of East Lothian and the Monynut Edge (NBW 37, Figure 4a), an area where Fallago Rig wind farm would have limited influence and an insignificant effect. Cumulatively, the proportion of landscape and visual effect occurring would be greater for the Wester Dod development. Wester Dod would also reinforce the visibility of the Crystal Rig group from East Lothian (viewpoints 11, 13, 14, 15, 16, 17, 18, and 20), but this would not be a significant cumulative effect attributable to the Fallago Rig Wind Farm, particularly given its limited contribution to the cumulative effects.

2.41 Rowantree is a Section 36 application of 23 turbines, located within the Lauder Common, an area of upland separated from the Lammermuir Plateau by Lauderdale, 12.728 kilometres from Fallago Rig. This development would not affect the separation distances between the wind farms considered at the 2008 inquiry. It is associated with the Dun Law group and the pattern of wind farms seen within the Lauder Common and Fala Moor area. Due to the intervening distance and the separating effect of the Lauderdale river valley, Rowantree Wind Farm would not contribute towards new significant cumulative landscape and visual effects in association with Fallago Rig (viewpoints 4, 5, 19 and 21). Significant cumulative landscape and visual effects resulting from Rowantree would be experienced from Lauderdale and the Lauder Common, an area where Fallago Rig would have limited non-significant effects.

2.42 The Pogbie Wind Farm (consented) is a relatively small proposal, which presents limited new areas of visibility and would not contribute significantly to cumulative landscape or visual effects. It is located within a different area of landscape (Fala Moor), close to the Dun Law Wind Farm. It would appear subsumed within the Dun Law group, either overlapping or contiguous with it (viewpoints 4, 13, 14, 16, 17, 18, 19). The effect of this is to largely limit the potential landscape and visual effects of this wind farm (whether simultaneous, successive, or sequential) to those already accounted for by the Dun Law group (Dun Law 1 and 2 in particular). The addition of this wind farm would not affect the separation distance of 7.7 kilometres between Fallago Rig and the Dun Law group considered at the 2008 inquiry.

2.43 The Drone Hill Windfarm (consented) was assessed in 2006 and in 2010, both assessments concluded that cumulative effects would not be significant. This wind farm would be cumulatively visible with Fallago Rig rarely (viewpoint 5 at 25 kilometres distance) and occurs in an entirely different area of landscape (Coastal Moorland), towards the outer edge of the study area.

2.44 The Brockholes Wind Farm is a new application for 3 turbines which would be visible with Fallago Rig rarely (viewpoints 2 and 5 at 20-21 kilometres distance) and occurs in an entirely different area of landscape, towards the outer edge of the study area. It would not contribute significantly to new cumulative landscape or visual effects.


2.45 The Joint Community Councils have suggested that a large number of additional turbines will be erected in the Lammermuirs as a result of all the potential developments they have identified. The actual numbers of turbines (totalling 243) in the different wind farm developments which were taken into account at the previous inquiry are as follows:

Existing wind farms

Crystal Rig 1 25 Dun Law 1 26 Blackhill 22 Bowbeat 24

Previously consented

Crystal Rig 2 and Crystal Rig 2a 61 Aikengall 16 Dun Law 2 35 Toddleburn 12 Halkburn 19 Carcant 3

2.46 The numbers which were not taken into account (totalling 84) are as follows:

Aikengall II/Wester Dod 30 Pogbie 6 Brockholes 3 Drone Hill 22 Rowantree 23

2.47 The wind farms which have not yet received consent require their own assessment. As applications, less weight may be attached to them (paragraph 188 of the SPP). There is no certainty that the proposed schemes will be built. The Joint Community Council’s claim that there will be an additional 200 turbines is exaggerated and takes into account possible developments which should not be considered.

2.48 The 2010 assessment confirms that the overall cumulative magnitude of change would be medium, leading to a moderate and non-significant effect on the host landscape of the Lammermuir Plateau and the Lammermuirs Area of Great Landscape Value. Localised significant effects would affect the local vicinities of Fallago Rig and the Crystal Rig group (moderate/substantial). There would be a slight increase in the occurrence or extent of localised significant effects on the margins of this landscape at the Crystal Rig wind farm group, resulting from the addition of Wester Dod to the Crystal Rig group. There would be no change to the original conclusions of the cumulative assessment in this respect.

2.49 In visual terms, there are few people who could reasonably be expected to experience the wind farms at close range (there are no residential properties or notable footpaths near to the site). Most people viewing the development would experience it from local footpaths or minor roads, in combination with other similar wind farm development, all


of which is engulfed or absorbed by the vast scale and strength of the surrounding moorland landscape.

2.50 There would be no significant cumulative effects on the closest settlements within 10 kilometres of Fallago Rig. Additionally there are no residential receptors within 5 kilometres of the wind farm site.

2.51 Significant cumulative visual effects would affect views from part of the Southern Upland Way around Twin Law Cairns and a minor road between Longformacus and the junction with the B6355. Further significant cumulative visual effects to which the Fallago Rig Wind Farm would play a lesser contributory role (significant effects triggered by the greater visibility of other wind farms) include hill track footpaths numbers 2, 3, and 4 and the B6362. In the two years ending in 2009, 2,424 average annual visitors were recorded walking the Southern Upland Way compared to 2,138 in the two years ending in 2007. This continues the trend of relatively low numbers of receptors identified at the previous inquiry.

2.52 There would be no significant cumulative effects on A class roads, the National Cycle Route, or the majority of the Southern Upland Way. Within the Lammermuirs there would be no cumulative visual effects on the local recreational sites at White Castle Hill Fort, Cranshaws Chapel and the picnic sites at Whiteadder and Watch Water Reservoirs. There would be no change to the original conclusions of the cumulative assessment in this respect.

2.53 In conclusion, there would be no change to the original conclusions of the cumulative assessment and there are no significant changes to the predicted landscape and visual effects resulting from the changes in the pattern of existing, consented, and application developments since that assessed in 2008. As such those levels of significant cumulative effect that would occur should be deemed acceptable. Fallago Rig would create a new wind farm group reasonably well spaced between the other groups (Dun Law and Crystal Rig).

2.54 Much of the landscape and visual impact evidence given on behalf of Black Mountain Farms relates to the current baseline and fell outwith the remit of the re-opened inquiry. Although the new Scottish Natural Heritage guidance was referred to, the visual impact witness did not identify how it changed the cumulative assessment. The footpaths were assessed for the previous inquiry. The Black Mountain Farms’ witness accepted that their use probably had not changed. The only change is an acknowledgement of their use in the Borders Core Paths Plan.

2.55 Scottish Borders Council’s written submission accepts the validity of the 2010 Supplementary Environmental Information and concludes that, “the expansion of wind farm in the east and west of the Lammermuirs since the first inquiry does not significantly increase the cumulative landscape impacts on the Central Lammermuirs that would result from Fallago Rig”. The council seeks a re-assessment of the conclusions of the original report, providing little analysis to justify this proposition, apart from stating that wind farm development has increased.

2.56 The critical issue for the re-convened inquiry is whether there has been any matter arising since February 2008 which has resulted in an increase in the cumulative landscape and visual impact which is so significant that it would justify a finding that the


impact was no longer acceptable. This would require departure from the conclusions of the original report. North British Windpower’s evidence has demonstrated that this would not be justified. The evidence for objectors has been either irrelevant of insufficient to demonstrate any particular effect.

Ornithology

2.57 The Royal Society for the Protection of Birds (RSPB) has accepted that when the findings of the Pearce-Higgins study (NBW34) are applied to the survey results in the environmental statement there are no significant implications. Black Mountain Farms suggests that the ornithological population has either grown significantly since the environmental statement or that the surveys in the environmental statement were inaccurate. North British Windpower considers that there is nothing to suggest that there has been any significant change in the bird population at Fallago Rig and the RSPB agree.

2.58 In the response to the environmental statement in 2005 Scottish Natural Heritage concluded that the application site does not contain the range of bird species that would flag it as being sensitive. Accordingly Scottish Natural Heritage did not consider that the proposed development would impact significantly on bird interests. In January 2010 Scottish Natural Heritage confirmed that there did not need to be an updated assessment of the likely affects on upland birds and that the Pearce-Higgins study did not alter their previous position on birds.

Tourism and economic impact

2.59 The evidence given by the Joint Community Councils did not demonstrate any measurable change in tourist attitude since the original inquiry. There has been nothing to change the conclusion reached on tourism in the original report.

2.60 In relation to the Scottish Borders Council Household Survey, it does not appear that concern about wind farms is high on the list of priorities for those living in Berwickshire who took part. Out of 217 responses, only 6 expressed wind farms as a concern.

Works on site

2.61 The issue of potential unauthorised development is a matter for Scottish Borders Council as the planning authority. The council carried out an investigation with SEPA, following which no action has been taken. The planning witness for Black Mountain Farms appears to consider that North British Windpower might be able to gain an advantage if they were able to suggest that the development had been started as a result of the alleged unauthorised works, but the legal basis for that proposition is unsound.

2.62 A planning permission cannot be implemented until it has been granted. If section 36 and deemed planning permission are granted for Fallago Rig, North British Windpower would be entitled to begin the development. If there were physical works on the land, the applicant could make use of them in implementing the development, subject to complying with any relevant planning condition. Whether these works had been carried out in breach of planning control (which is not accepted) would not be material. If the works had been the subject of enforcement action, they could not be used. All of these propositions were accepted by Black Mountain Farms’ planning witness.


The original report

2.63 Black Mountain Farms have criticised the reasoning in the original report. This evidence was irrelevant and was objected to by North British Windpower. A party to an inquiry is not usually in a position to make criticisms of the reporter’s reasoning until after the decision has been made. This would be done by a statutory appeal or application for judicial review to the Court of Session. The Court would decide whether the reasoning was adequate.

2.64 The criticism is misconceived. It disregards the scope to the re-opened inquiry, as set out by Scottish Ministers. North British Windpower does not accept that the report contains “sweeping statements”. In any event, what is done in the report in striking the balance is no different to what has been done by Black Mountain Farms’ planning witness in his precognition.

2.65 If the inquiry report was evidence in its own right, in every case where Scottish Ministers receive a report following an inquiry, that report would constitute new evidence for the Inquiries Procedure Rules. This would give rise to the possibility of submissions being made seeking a re-opened inquiry because the report had been submitted. Black Mountain Farms’ witness accepted that this was a possible consequence of the approach he took and that this would be difficult to resolve. The terms of Rule 21 of the Inquiries Procedure Rules do not give any support to the proposition that a report of an inquiry should itself be treated as evidence in the inquiry process. The new report should relate to the matters within the scope of the re-opened inquiry and not amount to a re-drafting of the original report.

Planning and policy issues

2.66 No relevant changes have been made to the Scottish Borders Structure Plan since the close of the last inquiry.

2.67 The Scottish Borders Local Plan was adopted in September 2008. As such, the Berwickshire and Ettrick and Lauderdale local plans, which had formed part of the development plan at the time of the first public inquiry, were extinguished. The primary Scottish Borders Local Plan policy is D4 (Renewable Energy Development). The previous 2008 report concluded at paragraph 5.80 that the development complied with the then finalised draft policy D4 but that it did not comply with some of the policies within the extant local plans. No changes have been made to policy D4 as part of the adoption process, whilst the previous local plans have now been extinguished. The policy status of the development has therefore been enhanced by the adoption of the Scottish Borders Local Plan because it can now be considered to be compliant against the primary development plan policy.

2.68 The 2008 report identified policy EP2 (Areas of Great Landscape Value) as a substantive policy. No material changes have been made to this policy during the adoption of the local plan. The report considered that this policy mirrored structure plan policy N11 and concluded that the proposal, on cumulative landscape and visual grounds, was not compliant with either policy and, by extension, that it was contrary to structure plan policies I19 and I20.


2.69 Policy N11 allows for adverse impacts where they are outweighed by social or economic benefits. Socio-economic benefits were identified within the Renewables Statement of Need which is set out within the 2007 White Paper (NBW18). Since the 2008 inquiry, the indirect economic benefits of renewables in terms of security of supply and the direct benefits of job creation have been made explicit in Chapter 1 of the UK Renewable Energy Strategy 2009 (NBW 22) and also within the Scottish Renewables Action Plan 2009 (NBW 25), which recognises the economic potential of Scotland’s renewable resource. Scottish Planning Policy (NBW 29) also confirms the need to tackle climate change and reduce emissions as a principal challenge of sustainable economic growth. These policy documents confirm that the need for renewable energy can now be classified as a social and economic benefit which should be weighed in favour. The development is therefore compliant with policy EP2 and with structure plan policies N11, I19 and I20.

2.70 North British Windpower considers that the environmental benefits, together with the social and economic benefits, arising from Fallago Rig continue to outweigh any limited landscape and visual harm identified.

2.71 Scottish Borders Council is preparing supplementary planning guidance (SPG) on wind and renewable energy, intended to be released in April of 2010. The Planning etc. (Scotland) Act 2006 provides procedures for the preparation of SPG which will attain the same status as the development plan, although it is not the purpose of any SPG to introduce new policy. Therefore, the forthcoming SPG will provide little in the way of additional guidance. It will not introduce new policy for consideration and, being at best a consultation draft, it should carry little or no weight as a material consideration.

2.72 The changes to national energy policy since the 2008 inquiry reinforce the importance of renewable energy, including onshore wind, as a means to address climate change and improve the nation’s security of supply. They include legislation which has enshrined into law a requirement to set and achieve carbon reduction budgets and they identify barriers to greater deployment and ways in which these can be tackled. The continuing contribution of onshore wind generation is shown in The UK Renewable Energy Strategy (NBW22). In the case of Scottish energy policy the continuing steps to assist the issuing of consents for onshore wind generation are shown in the Renewables Action Plan (NBW25).

2.73 Scottish Planning Policy sets out the important role for planning in achieving the substantial carbon reductions sought by national legislation. Paragraph 137 recognises the Scottish Government’s target of meeting 50% of electricity generation from renewable sources by 2020. National Planning Framework 2 is supportive of renewables generation. Annex 2 to PAN45 (paragraph 41) advises that, in relation to natural heritage areas of regional and local importance, planning authorities should ensure that policies do not unreasonably restrict the ability of the plan area to contribute to national renewable energy targets.

2.74 North British Windpower considers that the changes made to national and development plan policies since the original inquiry have strengthened the case in support of Fallago Rig.


Conclusion

2.75 The recommendation in the original report was to refuse consent and deemed planning permission because of the objection from the Ministry of Defence. That objection has now been withdrawn. The national energy and development plan policy support for a wind farm at Fallago Rig has increased. The emergence of further consented and possible wind farm development in the vicinity has not increased the cumulative visual and landscape impacts associated with the application. No other relevant material consideration has changed. In particular, the design of the proposed wind farm is the same as that which was found to be acceptable previously.

2.76 North British Windpower invites the Reporter to report that, following the withdrawal of the Ministry of Defence’s objection, the application may now be granted. Scottish Ministers are invited to accept that recommendation and to grant section 36 consent and deemed planning permission, subject to conditions.


Chapter 3

The case for the Ministry of Defence

3.1 At the previous public inquiry North British Windpower did not propose any satisfactory detailed mitigation options and disputed the technical and operational effects of the proposed Fallago Rig development. North British Windpower argued that if mitigation was required this would be provided by the T102 replacement radar at Brizlee Wood. The applicant also argued that the Buchan radar could provide sufficient low level coverage in the airspace affected by the Fallago Rig wind farm. None of these arguments was accepted by the Ministry of Defence.

3.2 The Ministry of Defence discounted the suggested mitigation of an infill radar, as the integration of such radar had never been considered and attempted before. Technological understanding and capability at the time was that it was not feasible. In order to establish if the integration of an Air Traffic Control radar, such as that at RAF Leuchars, could provide mitigation, consierable time and technical investigation would have been required.

3.3 Since February 2008, there has been a significant evolution in the approach taken by the Ministry of Defence to wind farm developments, in both policy and the assessment process. In June 2008, Ministry of Defence reviewed its position on air defence objections to wind farms to adopt a more informed and pragmatic risk-managed approach to wind farm developments. This reflected the commitment made by the Ministry of Defence through the Aviation Memorandum of Understanding between the British Wind Energy Association and other aviation interests (NBW7).

3.4 The sea-change that occurred within the wind energy industry in relation to aviation impacts can be attributed to the Memorandum of Understanding. Black Mountain Farms allege that the Ministry of Defence was involved with ‘covert’ communications with the developer and officials from the Scottish Government Renewable Energy Division. Any discussions should be viewed in the context of the memorandum. They took place to explore whether or not mitigation measures could be identified.

3.5 Officials from the Scottish Government Renewable Energy Division were fulfilling a similar role as the Department of Energy and Climate Change (see summary of written statement below). There is nothing covert in this, as the Memorandum of Understanding and policy statements make clear. It is the Government’s expectation that such co-operation between stakeholders will take place. Black Mountain Farms and others are not key stakeholders and it is not surprising that they were not involved in these discussions. Their only complaint could be whether their position in the public inquiry process was thereby prejudiced. The decision to re-open the inquiry to allow them and other parties to participate in a public examination of the evidence means that any complaint has fallen away.

3.6 The Ministry of Defence is aware of Government policy on renewable energy and the impact that this policy will have on Ministry of Defence interests. This is referred to in the statement prepared by the Department of Energy and Climate Change which has been


summarised below (MOD27). Since February 2008, the Ministry of Defence has been working with numerous developers to find mitigation that will allow wind farm developments without compromising national security.

3.7 There are now a number of technical solutions that can be considered to mitigate the impacts of wind turbines on air defence radars. These solutions are: the technical modification of current operational air defence radars; the integration of additional radars into the UK Air Defence Ground Environment Command and Control System (UCCS); and the provision of additional radar data from NATS En Route Limited to the UCCS. It is one of these options, the integration of the air traffic control radar at RAF Leuchars, which is considered to be the most appropriate form of mitigation for Fallago Rig.

3.8 In February 2008, the full integration of air traffic control radars was not considered feasible due to the limitations of the UCCS and the differences in radar output format. At that time, the UCCS had only two spare radar data ports to take additional radar feeds. In addition to the capacity of the UCCS system, the tracker, which processes and displays aircraft positions within the system, was designed to work with long range air defence radars and to use only three radars to update the position of a detected aircraft. It could not be stated that the number of radar data ports on the UCCS could be increased and the tracker enhanced to process more than three radar feeds for an individual track.

3.9 On 24 September 2009 the Ministry of Defence commissioned a detailed study into how the UCCS could be enhanced to take extra feeds from air traffic control and other types of radars. This study is known as the Additional Radar Study. The report was delivered to the Ministry of Defence on 15 March 2010 and covered the changes that need to be made to the UCCS to enable it to accept and process the additional radars needed for wind farm mitigation. The report itself is classified but an unclassified summary of this report will be prepared in due course. The report indicates that this type of mitigation solution is technically feasible.

3.10 In parallel with the Additional Radar Study, a second study has been commissioned to examine how data can be extracted in the correct format from air traffic control radars and transported to the UCCS to enable it to be used for mitigation. This study, the Air Traffic Control Radar Data Transport Study, has commenced and is expected to report in June/July 2010. It will also be classified. Its purpose is to:

advise the Ministry of Defence what changes need to be made to Ministry of Defence owned air traffic control radars;

identify how to establish the communications links to the UCCS; and scope, quantify and specify the types of associated support arrangements required

throughout the life of the additional infrastructure.

3.11 The outcome of both the Additional Radar Study and the Air Traffic Control Radar Data Transport Study will inform the Ministry of Defence and wind farm developers of the measures required to complete the integration work and achieve the required mitigation.

3.12 In closing submissions to the inquiry, Queen’s Counsel for Black Mountain Farms said that the Additional Radar Study had neither been scoped nor commenced. He has disregarded the evidence of the Ministry of Defence’s witness that the study was completed in March. He also made a similar comment about the Data Transport Study. However, the


Ministry of Defence’s witness explained that that work was underway and that there was sufficient understanding to indicate that this would not be likely to cause a difficulty for the integration, albeit the timetable for integration had been pushed back to 2013. He has a high level of confidence that it would be achieved within that timescale.

3.13 Black Mountain Farms contend that there is no new evidence on the radar issue that had not been raised at the original inquiry (paragraph 23 of their Statement of Case). However, the policy changes have given rise to new issues of fact. The Memorandum of Understanding has led to a level of collaboration between the aviation stakeholders, Government and the wind energy industry that was not in contemplation at the time of the last inquiry. This has resulted in the identification of the mitigation scheme contained within the proposed conditions.

3.14 The impact with which the Ministry of Defence is concerned is the degradation of radar performance such that there would be an unacceptable impact on the accuracy and completeness of the recognised air picture. The integration of the RAF-controlled air traffic control radar at RAF Leuchars is proposed to mitigate the impact of the Fallago Rig wind farm development on the air defence radar at Brizlee Wood. The integration would provide a completely new layer of mitigation of assured radar coverage and, importantly, the radar and surrounding infrastructure is entirely in the control of the Ministry of Defence.

3.15 This integration would most likely provide the data needed to compensate for the loss of coverage from Brizlee Wood for the purposes of creating the recognised air picture. Mitigation measures can either reduce the level of a particular impact or compensate for that impact. This strategy involves compensatory measures rather than reduction of the impact on Brizlee Wood radar.

3.16 Black Mountain Farms appear to have misunderstood the nature of the proposed mitigation. It has never been suggested that the Radar Mitigation Scheme (see below) would reduce the impact on Brizlee Wood to such an extent that a sufficiently precise recognised air picture would be produced from that radar. The purpose of the integration of the infill radar is to allow the creation of the recognised air picture from a radar which has no interference. The Ministry of Defence is satisfied that the use of the Leuchars radar as infill would result in a sufficiently complete recognised air picture for operational purposes. It can therefore live with the impact on Brizlee Wood.

3.17 The Ministry of Defence has developed aviation conditions for a number of wind farms, based on clearly defined volumes of airspace within which some degradation to radar performance can be accepted. The term Aviation Specification is used to refer to this volume of airspace. The expectation is that there could be no radar coverage within this volume and the Ministry of Defence is willing to take the risk that this may be the outcome at Fallago Rig. However, it is expected that there would be some degraded coverage within the volume. Outside this volume radar coverage would be assured by mitigation provided by the developer. The Ministry of Defence’s requirements in terms of the Aviation Specification are derived from operational considerations and the Aviation Specification is determined on a case by case basis. The Ministry of Defence witness expects that the Aviation Specification would be met at Fallago Rig.

3.18 Following discussions between the Ministry of Defence and North British Windpower, a Heads of Agreement has been signed (MOD25). The Ministry of Defence


has agreed the terms of the aviation condition reflected in the Heads of Agreement. The proposed suspensive condition would require North British Windpower to enter into a Radar Mitigation Scheme with the Ministry of Defence. The Radar Mitigation Scheme would provide that the development may only be operated in accordance with the terms of that scheme. The Ministry of Defence expects that the mitigation scheme would help to mitigate the effects of other existing wind farms in the area, but this has not been modelled in any detail.

3.19 The Radar Mitigation Scheme would set out the following matters:

(i) The steps required to integrate the RAF Air Traffic Control Radar at RAF Leuchars into the United Kingdom Command and Control System. The integration would be completed before any of the turbines became operational.

(ii) The developers’ undertaking to promote a further scheme of mitigation to enable the Aviation Specification to be met in respect of the operation of any turbine in the development, should the Aviation Specification not have been met through the integration. The Radar Mitigation Scheme would not detail the nature of the further scheme of mitigation but would state that a further scheme of mitigation, if required, would enable the Aviation Specification to be satisfied.

(iii) A payment which the developer would be obliged to make to the Ministry of Defence and the circumstances in which that payment would be required, in the event that the developer’s further scheme of mitigation did not satisfy the Aviation Specification. The payment would be put towards the Ministry of Defence’s own radar mitigation scheme.

(iv) The bond or other security which would be put in place by the developer in favour of the Ministry of Defence, with its financial obligations in terms of the Radar Mitigation Scheme.

3.20 There are a number of other options for mitigation that could be investigated if the integration proved not to be successful. These could include the deployment of other Ministry of Defence assets. In the worst case, and if absolutely necessary, the deployment of a mobile radar could be considered. The justification for the setting of the Aviation Specification volume in the proposed condition relates to issues of national security and cannot be explained further. However, in broad terms the requirements are based upon the nature of the threat and the likely impact of the reduction of radar coverage within the Aviation Specification volume.

3.21 The condition requires the Radar Mitigation Scheme to be agreed before any turbine is erected on site. The turbines can become operational once the Air Traffic Control radar at RAF Leuchars has been fully integrated in the UCCS. There are now reasonable prospects of the data from this radar being fed into the UCCS in a compatible format. The Ministry of Defence does not believe there is a high likelihood of the turbines being erected but not being allowed to become operational.


3.22 The assessment that would be conducted to consider the impact of the development on the Brizlee Wood radar following the integration is an operational matter for the Ministry of Defence. The details of this assessment may raise issues of a sensitive nature which cannot be divulged due to restrictions on the disclosure of classified information.

3.23 Black Mountain Farms consider that there is insufficient information in the proposed condition and related legal agreement to support the use of a suspensive condition to address the Ministry of Defence’s concerns. The suitability of this condition has been tested by planning witnesses for North British Windpower and Black Mountain Farms against the tests in Circular 4/1998 – The Use of Planning Conditions in Planning Permissions.

3.24 Guidance was issued by the Scottish Government Renewable Energy Division on 4 August 2008 (MOD26). This addressed the circumstances in which it is appropriate to use suspensive conditions for section 36 applications where there are outstanding aviation and radar issues to be resolved at a later stage. This guidance is of greater relevance to the aviation condition than that contained in Circular 4/1998. The relevant questions to be considered are whether:

the condition provides specification of the nature and extent of the mitigation measures required;

there is clarity about the identification of the type of solution to be developed; and there is agreement that such a solution can be delivered in a reasonable timeframe.

3.25 The specification of the Radar Mitigation Scheme that will require the subsequent approval of Scottish Ministers, in consultation with the Ministry of Defence, does provide specification on the nature and extent of mitigation measures required. The Ministry of Defence is satisfied about the technical feasibility of integrating additional radars into the UCCS and the technical studies are sufficiently far advanced to give a timeframe of early 2013 for implementation.

Department of Energy and Climate Change statement

3.26 A statement was prepared by The Department of Energy and Climate Change (DECC) in March 2010 and was produced at the inquiry by the Ministry of Defence as a document in support of its case (MOD27). The Ministry of Defence asked DECC to prepare this statement because DECC has been a major driver in bringing stakeholders together to resolve the aviation interference issues. The statement is summarised here.

3.27 DECC is a Department of the UK Government which was created in October 2008 to have responsibility for energy policy and climate change mitigation policy. The creation of DECC reflected the UK Government’s belief that the twin challenges of avoiding dangerous climate change and securing a clean, safe and affordable energy supply cannot be satisfactorily addressed in isolation from each other, and that the UK Government’s efforts to tackle them should therefore be linked as closely as possible at an institutional level. Encouraging the development and deployment of renewable sources of electricity generation is at the heart of DECC’s mission.


3.28 The UK’s prime renewable energy resources are wind and wave/tidal power. It has been estimated that the UK has about a third of Europe’s potential offshore wind resources and that Scotland has a quarter of Europe’s total wind resource. In the current state of wave and tidal technology, and given the long lead-time for projects of any significance in those fields, the major proportion of any substantial increase in UK renewable electricity generation capacity must inevitably come from wind farms.

3.29 European Union Directive 2009/28/EC (the Renewables Directive) (MOD21) requires the UK to meet a target of obtaining 15% of its energy from renewable sources by 2020, thereby contributing its share to the attainment of an European Union-wide target of obtaining 20% of the European Union’s energy from such sources by that date. This includes energy for heating and transport, as well as the generation of electricity.

3.30 In the UK’s case, it is considered likely that, in order to meet its target of 15% of overall energy, it will be necessary to obtain some 30% of the UK’s electricity from renewable sources by 2020. As noted in the Renewable Energy Strategy 2009 (MOD22), this will mean increasing the share of UK electricity generation accounted for by renewables by a factor of almost seven. It is expected that increased use of wind power as a generating source will account for much of this.

3.31 A further driver for increasing the proportion of renewable energy in the UK’s electricity generating mix is the system of domestic greenhouse gas emissions reduction targets put in place by the Climate Change Act 2008, since the generation of electricity accounts for a substantial proportion of such emissions. This requires the government to achieve a 34% reduction in greenhouse gas emissions by 2020, as a staging post on the way to achieving reductions of at least 80% by 2050.

3.32 The most up-to-date statement of the UK Government’s policies on renewable energy may be found in The UK Renewable Energy Strategy (MOD22) and The UK Low Carbon Transition Plan (MOD23), both published in July 2009. These documents make clear the importance which the UK Government attaches to securing the rapid deployment of very large amounts of new renewable electricity generating capacity generally, and wind-powered capacity in particular, given the urgency of the UK’s energy security of supply needs and the need to avoid dangerous climate change.

3.33 The rotation of wind turbines can impair the operational effectiveness of radar (whether used for civilian air traffic control or military defence purposes) in various ways. Some of the most promising sites for significant wind farm developments, both onshore and offshore, are in places where wind turbines would, if constructed without appropriate mitigation, interfere significantly with military or civilian radar operating in the vicinity. Indeed, the relative positions of various areas suitable for major wind farm developments and various radar installations is such that the more ambitious the UK’s plans to expand the share of renewables in the electricity generating mix have become, the more the potential adverse impacts on radar have presented a potential constraint on such expansion.

3.34 The nature of the potential impacts of wind farms on aviation interests has been known for some time, and DECC has been making efforts to work with stakeholders to find ways of dealing with this problem. In 2001, the Department of Trade and Industry (DTI) formed the Wind Energy, Defence and Civil Aviation Interests Working Group to consider the combined interests of wind farm developers, aviators and government. In 2002, the


Wind Energy and Aviation Interests: Interim Guidelines were published. Annex D to the Guidelines sets out in some detail all the basic problems which wind turbines can cause in the radar context and some potential mitigating measures.

3.35 In 2003, the DTI published an Energy White Paper entitled: Our Energy Future: Creating a Low Carbon Economy, which set a target of obtaining 10% of UK electricity supply from renewable energy by 2010, with a further aspiration to derive 20% of electricity from renewable sources by 2020. In July 2006, the DTI published The Energy Challenge, in which it was noted that the pace of development of renewable energy sources would have to increase in order to meet the targets set in 2003. Also in 2006, following the report of the Stern Review of the economics of climate change, a draft Climate Change Bill was published, which became the Climate Change Act 2008 some two years later. The Scottish Parliament has since passed its own legislation, the Climate Change (Scotland) Act 2009, creating a framework of targets for Scotland.

3.36 In May 2007, the DTI published an Energy White Paper, which noted both progress and continuing barriers in the delivery of significant quantities of renewable (and specifically wind) electricity generating capacity. It was during 2007 that political agreement was reached on the overall European Union target of 20% of energy from renewables to be achieved in the context of the Renewables Directive, with the figures for individual Member States’ contributions to the attainment of that overall target (including the figure of 15% for the UK) subsequently being proposed.

3.37 By the start of 2008 it had become clear that the target of 10% of electricity to be generated from renewable sources by 2010 might well not be met, while at the same time the need to make progress with the deployment of renewables, and in particular wind power, was becoming ever more pressing.

3.38 The planning barrier faced by aviation was recognised by the then Prime Minister Gordon Brown in November 2007 during a speech in advance of the Bali summit on climate change. He asked the Secretaries of State for Defence, Transport and Business to “…step up their efforts in cooperation with industry and the regulators to identify and test technical solutions to the potential difficulties that wind farms pose to air traffic and defence radar.”

3.39 The Memorandum of Understanding was concluded between the Department for Bunsiness Enterprise and Regulatory Reform, the Department for Transport, the Ministry of Defence, the Civil Aviation Authority, NATS and the British Wind Energy Association on 11 June 2008. It acknowledges not only the importance of deploying electricity from renewable sources and the fact that wind turbines can have significant effects on aviation, but the fact that those aviation effects pose a significant risk to the UK’s commitment to meeting its fair share of the European Union 2020 renewables target.

3.40 New institutional arrangements were agreed, including the establishment of a senior-level Aviation Management Board and of a fund to provide financial support for various work streams within the Aviation Plan, the recruitment and allocation of staff to work on these work streams and the formalisation of project information. All parties to the Memorandum of Understanding committed to implement the Aviation Plan approach to ensure the timely and effective delivery of solutions to reduce the effect of wind turbines on aviation. The Ministry of Defence committed to shorten pre-planning consultation


timescales and work with developers on a site by site basis to identify appropriate mitigation measures where possible.


Chapter 4

The case for parties against the development

Cranshaws, Ellemford and Longformacus Community Council and Gordon and Westruther Community Council (the Joint Community Councils)

4.1 The primary reason for the objection to the Fallago Rig wind farm is the cumulative impact of this development along with the extensive number of turbines already existing, having approval, and in the planning system affecting the Lammermuir Hills. The concern about cumulative impact is not limited to a narrow analysis of visual intrusion on the landscape. It is set within the broader concept of community planning and relates to socio-cultural and economic factors as well as the loss of amenity and degradation of the overall landscape character. Further wind farm development is a serious threat to the economy of the area and will hasten the decline and depopulation of the rural communities.

4.2 The local community has experienced the gradual expansion of wind turbines across the Lammermuir Hills and has experienced the planning processes and subsequent impact of construction and the loss of amenity. This experience has moved the local community from an initial position of support for limited development to one of opposition to any further development. This opposition is not only based on the view that the landscape cannot absorb any further turbines without serious and irrecoverable damage to its character and quality, but is also based on an increased understanding of the limited contribution commercial wind power can make to the overall supply of energy.

4.3 The local community understands that the planning process is essentially about balancing competing interests and believes that that balance should now be weighted firmly against further turbine development. It is considered that the existing planning policy framework is inadequate to deal with the avalanche of planning applications in the current ad hoc manner. There should be a moratorium on this application and further approvals until a spatial framework that would allow proper consideration of cumulative impact is put in place.

4.4 The community councils are further concerned about activities by the applicant since the initial inquiry proceedings. The recorded extensive and repeated controversial engagement between Scottish ministers at the highest level, the landowner and directors of North British Windpower, all outwith the planning process, coupled with actions which have prompted enforcement procedures, have seriously undermined the public perception of integrity in the planning system. In this context the Joint Community Councils consider that the application should be dismissed, leaving the applicant free to submit a new application that can be assessed in the light of current conditions and not blighted by dubious actions to date.

4.5 The rapid increase in wind farm applications built and in the planning system and the consequent increase in the cumulative impact since the initial inquiry have had a marked effect on local public opinion. This increased level of objection to wind farm


development can be gauged through representations to the community councils and the continual correspondence in the local and national press. Concern has most recently been demonstrated in the recently published Scottish Borders Council Household Survey, where asked “So you have any other comments that have not already been mentioned?” a number of respondents identified not wanting more wind farms as a concern.

4.6 The most significant change to the planning policy context since the initial inquiry is in the release of The Scottish Planning Framework in February 2010. This policy document sets out criteria for deciding applications for wind farm developments and states that: “The design and location of any wind farm development should reflect the scale and character of the landscape. The location of turbines should be considered carefully to ensure that the landscape and visual impact is minimised (paragraph 187)”. This basic requirement is not met at Fallago Rig wind farm, which would be located in the midst of the high central plateau of the Lammermuirs with a large area of visibility in all directions.

4.7 When coupled with the further guidance on cumulative impact, there is no doubt that the Fallago Rig application should be refused. The policy states that when considering cumulative impact: “planning authorities should take account of existing wind farms, those which have permission and valid applications for wind farms which have not been determined……The weight that planning authorities attach to undetermined applications should reflect their position in the application process (paragraph 188)”. The Joint Community Councils consider that applications at scoping stage should be included in the assessment.

4.8 Since the initial inquiry the Scottish Borders Council has adopted the local plan. The adopted local plan policies do not differ from the emerging policies considered at the initial inquiry. Similarly structure plan policies have not been altered. The report’s findings that the proposed development would have significant cumulative landscape and visual impact must therefore remain true and be multiplied in significance with the increase in built, approved and planned development since the 2008 assessment.

4.9 The focus of government policy has changed since 2008, with much greater emphasis being given to developing a mix of renewable technologies to meet the 2020 target. Part of this change has been the growing emphasis on offshore wind and other marine technologies that have the potential to grow associated research and development, manufacturing and supply industries which far outweigh the limited economic benefits of onshore wind farms. The generating capacity of these emerging renewable technologies greatly diminishes the contribution made by on shore wind developments.

4.10 For example, estimated generation from the Forth and Tay estuaries area alone is 3-4 GW. In relative terms the Fallago Rig generation capacity of 144 MW is 3.6% of this one offshore area. It represents a reduced significance in meeting national targets. There is therefore no doubt that the ambitious targets of the government will be met by developments completed and underway elsewhere, and little significance can be attributed to the Fallago Rig proposal in terms of the national interest.

Aviation

4.11 The Joint Community Councils did not lead any evidence on this issue but were present when the subject was being discussed at the inquiry and made comments on the


evidence heard in their closing submissions. They question the Ministry of Defence’s changed submission. They heard no evidence to give them confidence that the mitigation measures are deliverable within reasonable cost and within a reasonable time.

4.12 The Joint Community Councils express concerns about the secretive nature of the discussions between the Ministry of Defence and North British Windpower. They also question why the unclassified summary of the radar research study was not made available to the inquiry. There is no evidence that there is a workable tested solution to the radar problem. The situation is no different now compared to 2008. No solution to the radar problem has been found or tested. There is just a financial agreement between the Ministry of Defence and North British Windpower to find one. North British Windpower can build and operate the wind farm whether the solution works or not. Their commitment to funding a solution is capped at £1 million. The community could be in the worst possible state: blighted by a wind farm and also at increased risks from that wind farm because of the security implications it has caused.

Cumulative impacts

4.13 The photographs produced in the Supplementary Environmental Information 2010 and marked as ‘Existing view’ are not new photographs. They are the same photographs as were produced in 2008 and were taken in 2007. They show none of the hundreds of turbines that have appeared since 2008. There is therefore a high degree of doubt that viewpoints have been revisited. Very little weight can therefore be given to the assertion in the Supplementary Environmental Information 2010 that no additional significant environmental effects are predicted to arise.

4.14 The baseline has shifted immeasurably since 2008. There are now, at 243, almost as many turbines already constructed than were at any stage of the process in 2008. A further 28 are already consented. There is now daily experience of a huge number of turbines in the landscape and a fear that some of the current applications, including Fallago Rig with 48 turbines, Wester Dod with 30 and Rowantree with 23 would add to that changed landscape.

4.15 In 2008 just three wind farms were constructed: Black Hill, Dun Law 1 and Crystal Rig 1, with 73 turbines of an average height of 80 metres. A further five wind farms were consented: Aikengall, Crystal Rig 2, Dun Law 2, Longpark/Halkburn and Toddleburn, comprising 117 turbines with an average height of 103 metres. Only 9 turbines at Crystal Rig 2a were at the application stage in 2008, alongside the 48 at Fallago Rig.

4.16 The growth and extension of earlier schemes was beginning at that time, with both Dun Law and Crystal Rig having a second phase. This trend has accelerated since 2008, Dun Law has grown to become four wind farms, Crystal Rig has its own four phases plus Aikengall and potentially the proposed Wester Dod and Blackburn Farm schemes.

4.17 There are now twelve wind farms within the 30 kilometres study area of relevance to Fallago Rig: Aikengall, Black Hill, Bowbeat, Carcant, Crystal Rig 1, 1a, 2 & 2a, Dun Law 1 and 2, Longpark/Halkburn and Toddleburn, comprising 243 wind turbines. A further two wind farms are consented, at Drone Hill and Pogbie, adding another 28 turbines to the landscape. There are another 5 wind farms indicated in the Supplementary Environmental


Information as applied for: Brockholes, Fallago Rig, Keith Hill, Rowantree and Wester Dod. These potentially add a further 114 turbines with an average height of 126 metres. (Keith Hill has since been refused on appeal).

4.18 Dramatic though these changes are, they understate the extent of the change between 2008 and 2010, as the Supplementary Environmental Information 2010 omits a number of wind farm schemes that were actively pursuing scoping at the cut off date (31 January 2010). Scottish Natural Heritage notes that occasionally it may be appropriate to include more speculative proposals in an assessment of cumulative effect, particularly where clusters of development proposals emerge. They state that the weight accorded to such speculative proposals is a matter for the decision making authority.

4.19 The wind farms at scoping stage locally add another 79 turbines to the picture since 2008 and include:

Brunta Hill – 11 or 12 turbines, 125 metres high, 5 kilometres south of Fallago Rig. Blackburn Farm – 14 turbines, 125 metres high, east of Fallago Rig. Penmanshiel Moor – 19 turbines, 125 metres high, east of Fallago Rig. Sunwick – 5 turbines, 145 metres high, south east of Fallago Rig. Brotherstone Hill – 29 turbines, 125 metres high, described in Scottish Borders

Council’s wind farm database as being associated with Dun Law.

4.20 The Joint Community Councils consider that there are now 464 turbines constructed, consented or in the planning process compared to the 264 in 2008. The turbines have also changed in scale. The average height of a constructed turbine in 2008 was 80 metres, now the height at application has grown to 126 metres. The tallest turbines in Scotland (145 metres) are proposed at 2 sites locally. These would be 65 metres higher than the average constructed in 2008.

4.21 The Joint Community Councils have found no criteria to guide professional judgement on the assessment of cumulative impact and have not discovered any cited examples of best practice. Their experience to date confirms that professional judgement offered is predominantly determined by the interests of the commissioning authority. They consider they have, therefore, no reason to defer to professional opinion and believe that the views of the people who live in, work in, and experience the Lammermuirs provide the most valid basis for determining the significance of cumulative impact.

4.22 The Lammermuir Hills are a clearly defined geographical feature covering a relatively small area of approximately 26 kilometres by 15 kilometres. The hills, with their smooth lines, clean horizons and moorland vegetation type, are a particularly sensitive landscape with an extremely limited capacity to absorb built structures without visual intrusion. Yet the wind farms built and proposed for the area represent about 14% of the total renewables generating capacity required to meet the 2010 target for the whole of Scotland.

4.23 The Fallago Rig development would visually link the existing and approved turbines, creating a chain running on a south west/north east axis along the highest part of the Lammermuirs range, including both the west and east edges. It would destroy any remaining sense of wildness in the central plateau and blight the remaining unobstructed long distance views. It would be hugely detrimental to the character of this Area of Great


Landscape Value. The visual massing formed by linking to the existing and approved turbines would create an industrialised look and feel to the landscape, creating a fundamental change in its perception and the amenity value to both residents and visitors alike.

4.24 The previous report recognised that significant cumulative impacts would be caused by Fallago Rig, which was then interacting with just 264 potential turbines. Now with significantly more, and larger, turbines in the landscape, the scale and frequency of cumulative impacts would be far greater. The cumulative visual effects would be experienced throughout the hills and would repeatedly be:

simultaneous – where a number of developments may be viewed from a single viewpoint, within the viewers’ field of view without moving;

successive – where a number of developments may be viewed from a single view point successively by turning around at a viewpoint; and

sequential – where a number of developments may be viewed sequentially or repeatedly from a range of locations when travelling along a route.

4.25 The Supplementary Environmental Information 2010 argues that, as much of the development remains in the clusters formed by groups of wind farms on both the east and western areas of the hills, impacts from Fallago Rig would be minimised. That is not the case. The significant enlargement of the groups since 2008 significantly worsens the impact that Fallago Rig would have were it to fill the open core of the Lammermuirs. The Joint Community Councils agree with Scottish Borders Council’s case that with large wind farm developments surrounding the Lammermuirs this open space is now of strategic importance and of even higher value when it is contrasted with the wind farm affected landscapes in the surrounding areas.

4.26 The effect of Fallago Rig would be to:

significantly reduce the open core of the Lammermuir hills, rendering views of turbines totally unavoidable for anyone moving through the hills, whether on hill roads or walking routes;

damage the quality and character of the Area of Great Landscape Value designation of the Lammermuirs at the heart of the Area of Great Landscape Value site;

create a turbine horizon across the Lammermuirs when viewed or approached from East Lothian by linking the conglomerations centred on Dun Law and Crystal Rig/Aikengall;

make turbines the defining feature of the locally important Gifford to Duns road via Longformacus;

destroy much of the experience of elevated remoteness on the iconic section of the Southern Upland Way past the Twin Law Cairns; and

shorten distances between the numerous wind farm schemes, making turbines, already an intrusive feature in the landscape, a dominant feature.

4.27 There are already significant impacts from wind farms on the Southern Upland Way, Scotland’s only coast-to coast National Trail. In the Lammermuirs much of the stretch from Lauder to Longformacus has the turbines at Aikengall or Crystal Rig and Black Hill as a significant component of the view. The cumulative impact of Fallago on the walking experience of this largely elevated section of the route would be hugely detrimental and far


worse than it would have been in 2008 now that Aikengall is so prominent. The other schemes, especially Brunta Hill which is very close south of the route, would create significant additional impacts. Wind farms at Blackburn Farm, Brockholes or Penmansheil Moor would effectively render this route “The Southern Wind Farm Way”.

Social and economic Impact

4.28 At the time of the initial inquiry the number of turbines that could be observed in the landscape was much fewer than today. Although a few residents were aware of the forthcoming development and its potential impact, many based their views only on what they could see on the ground and limited their concern to a regrettable but acceptable loss of amenity.

4.29 Now it is different. Residents have observed the growth of turbines, decline in visitors, reversal of the property market and loss of value in their homes, the spoiling of habitat biodiversity and reduction of wild life. There is now not only widespread opposition to further development but considerable anger at the extent of development to date. There is increasing frustration that no recognition is given that access into the wider landscape is of particularly high value to many who live or work here and that it is being increasingly compromised.

4.30 The landscape character and sense of remoteness so close to urban services and centres are major features attracting people to live in the Lammermuirs. The growing impact of turbines is damaging to that attraction. Anecdotal evidence suggests that attraction is reducing, with properties difficult to sell.

4.31 Tourism activity is declining as wind farms become more prominent. In 2008 there were 3 active bed and breakfast businesses in Longformacus; there is now just one. Holiday cottages are at lower occupancy than previously despite the growing trend for ‘staycations’. The area represents a much higher recreational value than has been recognised. The following activities are all carried out in the area and support businesses interests and employment vital to its economic health: hill walking; mountain biking; cycling; fishing; sailing; motor-cross; off-road driving; horse riding; bird watching; shooting; long distance walking; and motorcycling.

4.32 It is not only the current level of tourism and recreational activity that is being blighted by wind farm development, the future potential is being severely damaged. This is contrary to the aspirations of government policy as well as the aspirations of local people. The Joint Community Councils expect, with Community Planning and joined–up government, a greater degree of coherence amongst government policy agencies promoting outdoor recreation and the assessment of the impact of wind farm development

4.33 The Lammermuir Hills are on the doorstep of the large population of the central belt and within 2 hours drive of Newcastle. With the natural resources of the area and the recreational activities on offer, local communities should expect to obtain benefits from the potential for growth in outdoor activity and tourism being so actively promoted by government agencies.


Black Mountain Farms, Cranshaws Ltd, Moorfoot Capital Management, Faccombe Estates Ltd, Lauderdale Estates, Burncastle Estate, Horseupcleuch Estate and the Lammermuir Protection Group (Black Mountain Farms)

Radar issues

4.34 The initial reason for the re-opening of the inquiry related to the Ministry of Defence and radar issues. The Ministry of Defence’s Statement of Case for the re-opened inquiry gives no real indication of what happened between the close of the inquiry and October 2008, when the Scottish Government Renewable Energy Division wrote to the Ministry of Defence. However, it appears that the Ministry of Defence probably did not seek to remove its objection until it was asked to supply further information. This then led to a considerable number of meetings, eventually resulting in the reopening of the inquiry. There is nothing to suggest that there was any evidence of an actual mitigation solution being in existence in October 2008.

4.35 The UCCS extra feeds study and the Data Transport Study are not before the inquiry and cannot be taken into account in the consideration of the Ministry of Defence’s position and the proposed suspensive condition. The Ministry of Defence Statement of Case refers to trials of other radar systems but nothing has been lodged. There is, therefore, no basis for assessing the relevance or significance of these trials for the position at Fallago Rig. In preparing for the inquiry, the various parties have no basis on which to start to test the Ministry of Defence’s position or even to understand the nature and detail of the technical advances.

4.36 Black Mountain Farms’ planning witness, Mr Kelly, accepted at the inquiry that the Ministry of Defence’s witness gave evidence on the present position of the studies. Black Mountain Farms do not challenge that evidence. It was also accepted that certain information cannot be produced by the Ministry of Defence. Mr Kelly agreed with the Ministry of Defence that the only document that could have been produced was the unclassified summary of the Additional Radar Study.

4.37 The detail of the Aviation Specification cannot be released for reasons of national security. The Radar Mitigation Scheme is also not specified in detail pending further technical work. There is a public interest question which needs to be set out and answered openly. It is obvious that the primary national security risk that is being protected is the potential for an air attack on Torness Nuclear Power Station, with probably secondary risks around Edinburgh Airport and the southern approaches to Leuchars Air Base itself. The aviation specification depends on the Ministry of Defence accepting a degradation of radar performance. If it is proposed to proceed on this basis, members of the public in this area of eastern Scotland are entitled to know the detail of the increased risk that they have to bear in order to allow North British Windpower and Roxburghe Estates to make some money.

4.38 The proposed Heads of Agreement cross references to the suggested conditions, which are predicated on a Radar Mitigation Scheme to be approved by Scottish Ministers. At that stage turbines can be erected. However, the initial steps of getting there are themselves predicated on a feasibility study which has yet to be commissioned, but which has to be funded up front by the applicants. There is then a provision to cover the possibility that the scheme of mitigation may not work. Provision is made to allow the


Ministry of Defence to amend the Aviation Specification to take account of wider benefits, but there is no provision for any related planning decision or approval.

4.39 If the Aviation Specification is not satisfied after the turbines start generating, a financial contribution would be made to the Ministry of Defence. Presumably this would allow the development to operate in a situation where there has been a breach of national security interests. Black Mountain Farms are at a loss to understand what or where the actual mitigation is or who approves that mitigation or who, in a planning sense, monitors and enforces the operation of the mitigation.

4.40 In the absence of an actual proven solution, Black Mountain Farms are far from convinced that the Heads of Agreement provides a satisfactory way forward. Furthermore, it contracts for something outwith the control of both parties, namely the addition of a condition to a section 36 consent. Only the Scottish Ministers can impose conditions and they are not party to the agreement.

4.41 Circular 4/1998 sets out government policy on the use of conditions. The six tests for planning conditions are set out in the circular: necessary, relevant to planning, relevant to the development, enforceable, precise, and reasonable in all other respects. Black Mountain Farms agree with the submission by Scottish Borders Council in relation to the suggested conditions (summarised below). Black Mountain Farms consider that it is reasonable and correct to apply the same tests to the section 36 conditions.

4.42 With reference to the aviation condition, Black Mountain Farms accept that some form of wide ranging suspensive condition would be needed. However, this proposed condition is not precise because the reader does not know what it is that will physically happen to achieve the mitigation. It is therefore also unenforceable, as the reader is not informed as to how he/she will know if the mitigation is actually operational. It is also expressed in a strange mixture of vague terms, such as “appropriate measures” combined with technical language, such as a “Swerling Case 1 target”, which is not capable of being fully understood by an intelligent lay person without specialist knowledge. How, at any stage, will the Scottish Government Renewable Energy Division or Scottish Borders Council know whether or not the operational probability of detection is above or below 80% and whether or not that is applying to an aircraft or a missile? The condition is also imprecise in that there are no timescales set out within it.

4.43 The condition is relevant to the development to be permitted, but the effect of the condition could be to change that development. For example, the turbines could be erected but not be operational or perhaps the number of turbines could be reduced or the output of the site could be reduced in some other way. Therefore, the planning balance could be changed. A condition that could have this effect does not meet the tests.

4.44 However, even this potential situation is not totally clear. One possible reading of the text of the condition is that if the initial agreed mitigation scheme failed, the development could be permitted to operate whilst some other mitigation scheme is devised. In the meantime, it is not known what the effect on national security would be. All of this introduces such a lack of certainty and precision (and potential for varying interpretations) that the condition is unenforceable.


4.45 The guidance in PAN 45 Annex 2 on the use of suspensive conditions cannot be complied with. There is not yet specification of the nature and extent of the mitigation measures required or clarity about the type of solution to be developed.

4.46 Black Mountain Farms consider that, as the condition fails the tests in the circular, it does not provide a basis for granting consent to the scheme. If matters proceeded on the basis suggested, neither the council nor the objectors would know exactly what has been put in place when and to what effect before the turbines start turning or know what is happening after they are operating. The basis of any suspensive conditions should be that the subsequent processes are completely transparent and in this case that would not be the situation.

4.47 Mr Kelly explained that the concern about the lack of precision stems from the lack of knowledge about the full Radar Mitigation Scheme. If it had been produced it could have been tested against the test in the circular. He accepted that if the Radar Mitigation Scheme does not fall under Circular 4/1998 his position was not correct. He agreed that there had been a number of other occasions when similar conditions regarding aviation had been imposed on wind farms either by reporters or ministers (NBW1-17).

4.48 The Ministry of Defence has lodged a statement on behalf of the Department of Energy and Climate Change. In the whole of this statement nowhere is there set out any precise assertions whatsoever as to what the effect of government energy policy has been, and will be, on “avoiding dangerous climate change”, nor does it set out any basis for altering the normal balanced planning assessment of this scheme.

4.49 Black Mountain Farms do not wish to be uncharitable to the Ministry of Defence, which is obviously under tremendous pressure from the conjoined forces of the British Wind Energy Association and the Department of Energy and Climate Change to stop obstructing the building of on shore wind turbines. However, there is no detailed mitigation solution that is before the inquiry to consider, which was also the position in February 2008. There is only a development of thinking on a possible solution, where that solution has still to be verified by a feasibility study. The outcome of that feasibility study, which has yet to be commissioned, is related to two other studies the outcomes of which are not before this re-opened inquiry and are therefore not known.

4.50 North British Windpower should have accepted the outcome of the first inquiry and set about finding a specific radar mitigation solution for Fallago (based on studies and tests) before reapplying with a new application in due course. No one could have had any legitimate complaint about such a process. Instead Black Mountain Farms’ time, and a considerable amount of money, has been wasted in preparing for an inquiry whose basic reason for re-opening still appears to be nothing other than an agreement to fund a study.

4.51 Under cross examination by the Ministry of Defence, Black Mountain Farms’ planning witness accepted that there is now a mitigation scheme for the impacts of Fallago Rig on the Brizlee Wood radar that was not available at the time of the previous inquiry. Mr Kelly also acknowledged that section 36(1) of The Electricity Act 1989 ensures that an operation is carried out in accordance with a consent and that section 36(6) states that failing to comply with the provisions of section 36 could result in a criminal prosecution.


4.52 During cross examination by North British Windpower, Mr Kelly agreed that:

the Memorandum of Understanding is dated June 2008; the Heads of Agreement is dated September 2009; the Ministry of Defence witness gave evidence at the inquiry on the two radar

studies; and these are new matters on the radar issue that have arisen since the last inquiry.

4.53 In relation to Directive 2009/28/EC (MOD 21), which gives a clearer policy impetus to the UK to ensure that it does everything possible to maximise renewable energy, Mr Kelly agreed that the Scottish Government Renewable Energy Division would have failed in its duty not to take this into account. He also accepted that the Government White Paper, The UK Low Carbon Transition Plan published in July 2009 (MOD 23), was an important development of government policy since February 2008.

Landscape issues

4.54 The East Lothian Wind Capacity Study (CD58) was undertaken prior to the issue of PAN 45 Annex 2. It provides an assessment of the relative sensitivity of landscapes to wind energy development and considers strategic cumulative landscape and visual effects, in accordance with the advice set out in Annex 2.

4.55 The Scottish Natural Heritage document Siting and Designing Windfarms in the Landscape explains how development of multiple wind farms within a particular area may create different types of cumulative effect, including where wind farms appear as a dominant characteristic of the area, seeming to define the character type as a ‘wind farm landscape character type’. Black Mountain Farms consider that this has been created within the ‘East Lammermuir Fringe’ and the ‘Plateau Grassland’ character areas due to the intensity, extent and dominance of existing and consented wind farm development.

4.56 The guidance states that if wind farms already exist within a particular landscape character type, further wind farm development should be limited to the same or similar types within the neighbouring area to avoid reduction in the distinction between types. In the Lammermuir Hills a distinctly different landscape character is associated with the open and relatively undeveloped core of the hills.

4.57 The guidance document considers that it is critical to achieve a balance between wind farms and the undeveloped open landscape retained between them. Adequate separation will help to maintain wind farms as distinct entities. It explains that the separation distance required will vary according to the landscape characteristics. This applies to Fallago Rig, as the landscape characteristics of the ‘Central Lammermuir Plateau’ are of strategic landscape and visual importance in separating concentrated areas of wind farm landscape on the eastern and western fringes of the Lammermuir Hills. The document also advises that multiple wind farm development should not change distinctive skylines. Fallago Rig would change the distinctive skyline of the higher core of the Lammermuir Hills as seen from parts of East Lothian.

4.58 Since the 2008 inquiry five wind farm developments have been constructed within the Lammermuir Hills (Crystal Rig 2 and 2a, Aikengall, Dun Law 2 and Toddleburn). The 6 turbine Pogbie wind farm has also recently been consented and applications for the


proposed Wester Dod (Aikengall 2) and Rowantree wind farms have yet to be determined. These developments form concentrated groupings associated with the lower eastern and western fringes of the Lammermuir Hills.

4.59 While other existing, consented and proposed wind farm developments in the wider study area would be seen as part of more distant/extensive or sequential views, it is the developments within the Lammermuir Hills which have the potential to incur significant cumulative landscape and visual impacts with the proposed Fallago Rig wind farm, including effects on the Lammermuir Hills Area of Great Landscape Value.

4.60 The Supplementary Environmental Information 2010 (page 47) considers that ‘Sense of openness and remoteness’ is capable of co-existing with wind farm development and is a feature of many existing wind farm sites. Black Mountain Farms dispute this, as the sense of openness and remoteness is unlikely ever to be a key characteristic of wind farm sites because of the nature and scale of such development.

4.61 The Supplementary Environmental Information also considers that the distances between the proposed and consented or existing wind farms are large. The distance between the existing Crystal Rig group of wind farms and Fallago Rig is approximately 7-8 kilometres, while the Dun Law group lies some 7 kilometres from Fallago Rig. Black Mountain Farms dispute that these distances are large, especially given the scale of these developments in terms of the number of turbines and their horizontal extent. The impact of Fallago Rig and other wind farm developments on the sense of scale and distance requires a fresh assessment based on what is built, as computer sided visualisations can never match what is seen on the ground.

4.62 In relation to views towards the Lammermuirs from East Lothian, the Supplementary Environmental Information states that Fallago Rig would be set back from the edge of the plateau such that it would have a limited effect on the skyline. Aikengall/Wester Dod would break this skyline (see viewpoints 13 and 18) but generally from locations where Fallago Rig would not be visible. The Supplementary Environmental Information therefore considers that there would not be significant cumulative visual effects in combination with Fallago Rig.

4.63 However, Black Mountain Farms point out that the Aikengall and Crystal Rig 2 and 2a developments have now been constructed. This allows a more accurate appraisal of the effects on views from lowland East Lothian than that considered in the 2008 inquiry These developments have a greater visual impact from parts of East Lothian, for example the eastern coastal plain around Tyninghame and North Berwick, than indicated in the visualisations produced for the 2008 inquiry. Fallago Rig would be set back from the edge of the Lammermuirs but turbines would be located sufficiently high for them to be clearly visible from the settled landscapes of East Lothian. The cumulative strategic landscape effect of adding Fallago Rig to a baseline where dense concentrations of turbines already occur at both ends of the backdrop of the Lammermuir Hills to lowland East Lothian is not adequately addressed in the Supplementary Environmental Information.

4.64 Black Mountain Farms consider that Fallago Rig would alter the landscape of the Lammermuir Hills from one where wind farm development formed a dominant feature on its fringes but was an incidental feature within the core of the plateau, to a landscape where


wind farm development formed a dominant characteristic across the extent of the hill range, creating a ‘wind farm landscape’

4.65 The Supplementary Environmental Information states that within the Lammermuir Hills none of the existing wind farm developments reduce the quality or value of landscapes or prevent enjoyment of the scenery. Black Mountain Farms do not agree. Some reduction in landscape quality, value and enjoyment is inevitable given the nature and scale of the wind farm development that has occurred in these areas, despite the affinity of some key characteristics of the ‘Eastern Lammermuir Plateau’ and the ‘Plateau Grassland’ character areas to large scale wind farm development.

4.66 The statement in the Supplementary Environmental Information that “Except at a local site level [a single wind farm]…cannot change or over-ride the existing landscape character, or become a new characteristic element or alter the existing landscape quality” is ill-founded and does not accord with Scottish Natural Heritage guidance, which this appendix has supposedly been revised to reflect. A wind farm development will always incur change to landscape character, although the degree of change will be dependant on the scale of the development in question and the character of the receiving landscape. Neither of these factors is considered in this statement within the Supplementary Environmental Information.

4.67 The concept of ‘Different landscapes – different approaches’ advocated in ‘Siting and Designing Windfarms in the Landscape’ is applicable to the Lammermuir Hills, where there are distinct differences between the ‘Central Lammermuir Plateau’ and the ‘East Lammermuir Plateau’/‘Plateau Grassland’ character areas. The Fallago Rig proposal would introduce wind farm development into a different character type within the neighbouring area and is therefore contrary to this approach.

4.68 The existing Dun Law and Crystal Rig wind farms and their consented extensions were considered as part of the baseline at the previous inquiry but where they have been constructed, this provides accurate confirmation of their impact in the field. This can be seen from many parts of lowland East Lothian where, despite distances exceeding the parameters for dominance/prominence set out in PAN 45, visibility is more pronounced, according with updated thinking from Scottish Natural Heritage on this issue in ‘Siting and Designing Windfarms in the Landscape’ (SBC111).

4.69 The Aikengall wind farm was also considered part of the baseline at the 2008 inquiry. Now this development has been constructed, it has contributed to the intensity and extent of wind farm development which now dominates the ‘East Lammemuir Plateau’. In terms of new wind farm applications, Wester Dod (Aikengall 2) has most relevance to the Fallago Rig proposal. While this proposal would appear as an extension to the Crystal Rig group, it would increase the density of turbines and extent of wind farm development seen in views.

4.70 The consolidation and extension of wind farm development has also occurred within the western parts of the Lammermuir Hills. Toddleburn wind farm has been constructed since 2008 and the consented Pogbie and Long Park developments are also situated within the ‘Plateau Grassland’ character type.


4.71 The increases in intensity, extent and dominance of wind farm development within the eastern and western parts of the Lammermuir Hills since 2008 has heightened the value of the remaining open and largely undeveloped uplands within the core of the hills.

4.72 The Keith Hill 10 turbine proposal was dismissed on appeal in February 2010. This decision recognised the Area of Great Landscape Value on its own merits despite an absence of citation for the designation. It supports the view that the Lammermuir Hills Area of Great Landscape Value designation remains current and has continuity across the Scottish Borders and East Lothian boundary. The consolidation of wind farm development on the fringes of the Area of Great Landscape Value since 2008 has further comprised its key qualities, particularly in the case of the Aikengall wind farm. That wind farm has adversely affected the sensitive landform of the Monynut Edge and has resulted in the remaining largely undeveloped core area of the hills being of increased importance in terms of its scenic quality, recreational value and perceived naturalness. The spread of wind farm development into the core ‘Central Lammermuir Plateau’ area would adversely affect the key characteristics and the values associated with this part of the Lammermuir Hills Area of Great Landscape Value and the integrity of the Area of Great Landscape Value as a whole.

4.73 The previous report concluded that the Fallago Rig wind farm proposal would result in significant cumulative landscape and visual impacts on the Lammermuir Hills, but countered this by stating that these effects would be reversible. Black Mountain Farms consider the 25 year operational phase of the wind farm to be a long term impact. Reversibility after this period is not guaranteed for either Fallago Rig or the other existing wind farms. The report does not consider the value of the open undeveloped core of the hills (despite acknowledging its difference) given a context where existing concentrations of wind farm development is a dominant and defining feature in the eastern and western parts of the Lammermuir Hills.

4.74 The number of turbines in constructed wind farms within the Lammermuir Hills has increased since 2008 from 51 to 175. Consented wind farms and other proposals such as Wester Dod would increase this figure. The Fallago Rig proposal would be sited in the middle of concentrated groups of existing and consented wind farm developments and, in the context of the fairly limited geographic extent of the Lammermuir Hills, this proposal would radically alter the character of the hills and result in the entire hill range being dominated by wind farm development.

4.75 Since the 2008 inquiry the balance has been further weighted in favour of the protection of the core of the Lammermuir Hills from wind farm development in terms of recent guidance on cumulative landscape and visual effects and the emphasis placed on strategic landscape planning for wind farm development.

Visual impacts

4.76 Figure 2.3 of the Supplementary Environmental Information 2006 is a representation of elevation. It is misleading and exaggerates the bowl effect of the surrounding topography. BMF1 Figure 1 illustrates that the Fallago Wind Farm would be located on a plateau which forms the central core of the Lammermuir Hills. All of the turbines (except turbine 27) would be sited at an elevation over 400 metres Above Ordnance Datum (AOD) and, far from being located in a bowl, the wind farm would be


located on the flank of Meikle Says Law (535 metres AOD), the highest summit in the Lammermuir Hills.

4.77 Siting and Designing Windfarms in the Landscape was published by Scottish Natural Heritage in December 2009. It identifies a number of issues of relevance to the Fallago Rig Wind Farm. Fallago Rig is relatively unique as it proposes two different sizes of turbine within the same site, ostensibly as a mitigation measure. However, this would create a visual conflict, as one or other of the groups of turbines would inevitably be perceived as an inappropriate extension. Proper mitigation would have removed these turbines from the proposal.

4.78 The proposed access to the Fallago Rig Wind Farm requires the extensive upgrading of existing tracks over a significant distance. Its construction would result in effects that do not correspond to good design principles as advocated in the Scottish Natural Heritage guidance, including:

varying visual density; overlapping turbine rotors (stacking); and partial screening behind a skyline.

4.79 The new Scottish Natural Heritage guidance acknowledges that previous guidance placed too much emphasis on the distance of the viewer. This is significant. The nature and context of views of the Fallago Rig Wind Farm are relevant to the assessment of visual effects due to its prominent location on the skyline. This is particularly so for longer views, where it was previously argued that visual effects would diminish with distance. The Supplementary Environmental Information 2006 Figure 3.8 presumes that levels of visibility beyond 12.5 kilometres are likely to be negligible and Figure 3.9 presumes that high levels of visibility would be confined to a maximum of 6.25 kilometres. The mitigation measures offered by the 2006 revised layout are also an acknowledgement of this issue.

4.80 Black Mountain Farms consider that the position and extent of the wind farm is dictated by land ownership rather than a site selection process. The revised 2006 layout reduces the extent of the wind farm. However, the topography available within the constraints of land ownership does not offer the level part of the site recommended by the new guidance. Therefore, the proposed layout continues to present a confusing image.

4.81 The skyline of the Lammermuir Hills is particularly prominent and the Fallago Rig Wind Farm would detract from this distinctive skyline. This would be particularly apparent from viewpoints to the north, where cumulative effects between Fallago Rig and other wind farms would overwhelm the Lammermuir skyline. Also the Fallago Rig Wind Farm would not achieve a simple visual relationship with the skyline, as the turbines vary in height and would be set at varying elevations. The turbines would also overlap and blade tips would intermittently break the skyline.

4.82 The proposed turbines are particularly tall and would dominate the Central Lammermuir Plateau. The wind farm would also cumulatively contribute to wind farms dominating the whole Lammermuir Hills range. It could be argued that the wind turbines are of a minor scale to the overall height as well as the horizontal extent of the Lammermuir Hills. Nevertheless, the turbines would be of a major scale in relation to the height and width of summits above the plateau.


4.83 The Fallago Rig Wind Farm would also be of major size and scale when compared to other key features and foci within the landscape. This is particularly so for Lammer Law and Meikle Says Law (the two highest summits) both of which are in close proximity to, as well as exceeded in height and extent by, the proposed turbines. The development would therefore be disproportionate to its surroundings.

4.84 Existing and proposed wind farms are located at lower elevations and to the periphery of the Lammermuir Hills. Consequently, the Lammermuir Hills provide visual and physical separation. The only exception is the Fallago Rig Wind Farm, which would be sited centrally within the Central Lammermuir Plateau. The selection of this central, elevated and visually prominent location ensures that visual effects, as well as intervisibility and consequential cumulative visual effects with other wind farms, would be maximised.

4.85 Black Mountain Farms consider that neither the selection of the proposed site nor the design of the wind farm is in accordance with the new Scottish Natural Heritage guidance.

4.86 The Guidelines for Landscape and Visual Impact Assessment (GLVIA) confirm that visual effects are those that impact upon people (rather than landscape effects which impact upon place) with distinctions drawn between various activities (residing, recreating, working and travelling). It is important not to confuse landscape sensitivity with visual sensitivity. The guidelines clarify that it is views of or from within valued landscapes that affects the visual amenity of people viewing the landscape.

4.87 However, the Supplementary Environmental Information 2010 definition of high sensitivity is confined to residents and visitors to nationally designated landscapes or strategic footpaths. This is a clearly misguided methodology, as visual sensitivity relates to the nature of the viewer not the landscape designation and it has the effect of understating the level of sensitivity.

4.88 The 2010 methodology for assessing magnitude of effect places too much emphasis on proximity (which is discouraged by the Scottish Natural Heritage guidance). The factors for assessing magnitude of effect omit the GLVIA reference to form, line and height, as well as the extent of the area over which the changes would occur, all of which are relevant to wind farm developments. Therefore, the 2010 methodology understates the magnitude of effect.

4.89 The Environment Impact Assessment regulations are not prescriptive about the threshold of significance and the GLVIA state that “It is for each assessment to determine the assessment criteria and the significance threshold”. A logical place for the threshold of significance is centrally within the moderate level of effect. Therefore, the Supplementary Environmental Information 2010 methodology understates significance.

4.90 There are some notable omissions in the selection of viewpoints which undermines the environmental statement representation and assessment of visual effects. It should be noted that the 2010 visualisations use the same panoramic photographs as were used in 2006. New photographs should have been taken to represent the cumulative impacts of wind farm development properly.


4.91 The path routes indicated in the Supplementary Environmental Information 2006 are not comprehensive, as many of the Core Path Plan routes are omitted. This omission has not been addressed in the 2010 assessment. Therefore, both assessments fail to assess properly the full extent of visual effects upon users of the promoted footpath network within the study area. Furthermore, the designation as core paths, although not changing the paths themselves, has changed people’s understanding of them. A ScotWays leaflet showing some paths through the Lammermuirs had been before the first inquiry. However, it was an incomplete picture. The up to date and complete presentation of the paths is only to be found in the Core Paths Plan.

4.92 Black Mountain Farms’ advisor undertook a separate assessment of visual effects of the Fallago Wind Farm on recreational users and concludes that users on paths within 2.5 kilometres of the site would be subject to substantial and significant effects and users of paths between 2.5 kilometres and 5 kilometres would also be subject to substantial and significant effects on elevated sections. Elevated sections of paths over 5 kilometres from the site may also be subject substantial and significant visual effects.

4.93 The Fallago Rig Wind Farm would occupy a central location between and intervisible with the two main existing groups of wind farms, one of the last areas of the Lammermuir Central Plateau from which a wind farm is not visible. It would create a new wind farm group which would be intervisible with both existing groups.

4.94 A separate assessment of additional cumulative visual effects of the Fallago Rig Wind Farm on receptors at the Supplementary Environmental Information 2010 viewpoints was also undertaken. It concludes that there would be significant cumulative visual effects on visual receptors at viewpoints 1, 2, 4, 5, 6, 8, 11, 13, 14, 15, 16, 17, and 20.

4.95 The test in Schedule 9 of the Electricity Act 1989 is that a licence holder or a person authorised to generate or supply electricity “shall have regard to the desirability of preserving natural beauty…”, amongst other things. That this is an area of natural beauty is confirmed by the Area of Great Landscape Value designation. Preservation means to keep the essential qualities of what is there, which is consistent with the objective of an Area of Great Landscape Value designation.

4.96 The importance of compliance with the Schedule 9 criteria is enhanced, as the Central Lammermuir Plateau is now surrounded. A pattern of wind turbine development at the eastern and western ends has become established. Fallago Rig would break that pattern, filling the gap and eliminating the naturally occurring landscape type. It would create a wind farm landscape from the eastern Borders coast at Coldingham to the heart of the Moorfoot Hills, west of the A7. This would be a radical alteration of landscape character on an extensive scale, markedly inconsistent with the Schedule 9 criterion of preservation.

Upland estate and moorland management

4.97 At the previous inquiry Black Mountain Farms’ evidence on this issue was largely restricted to Fallago Rig’s impact on grouse moor management. Since 2008 there has been a broader range of impacts than anticipated. Since the construction of Dun Law 2, Toddleburn, Crystal Rig 2 and 2a and Aikengall, visitors and estate clients have said that the extent of wind farm coverage is causing them to reconsider their commitment to the Lammermuirs.


4.98 The complexity of ecological and commercial challenges inherent in sustainable management of upland moorland is changing in the context of increasing wind farm developments. Understanding of this issue has increased since 2008, as wind farms have expanded in Scotland and locally. A significant effect is the growth in the intrinsic value of the central core of the Lammermuirs.

4.99 The management of all of the areas neighbouring Fallago Rig depends on farming and grouse moor shooting for income and species conservation. The management of moorland can easily be disturbed by changing the environment around it. The neighbouring estates are affected by development in the wider Lammermuir area. The estates are the major employers and the economic backbone of the entire area. For example, Mayshiel employs 13 full time and up to 40 additional staff during the season. A reduction in the popularity of amenity activities on grouse moors has implications for the livelihood of those who depend on them.

4.100 The recent recession and current fragile state of a recovering economy means that any adverse economic effects are felt more immediately and more severely than was the case in 2008. At that time the economy appeared to be buoyant and alternative employment was easier to find.

4.101 It is important for walkers that areas of hill land can continue to be connected and that they are not truncated or interrupted by areas that may not be safe. The footprint of such areas has increased since 2008 to a level of serious concern. Amenity for walkers, visitors and residents will be degraded by the expanding no-go areas created by the growing number of wind turbines and the accompanying risk of ice throw and blade breaks. The more wind farms that are built, the more apparent these risks become. Since the last inquiry there has been a serious blade break at the Whitelee Wind Farm.

4.102 Neighbouring landowners have been somewhat affronted and very concerned by the unauthorised works through and around the Dye Water, which flows into the Whiteadder, and then the Tweed. These are works that were heralded in the wind farm environmental statement, were unexpectedly commenced without consent and then just as suddenly ceased. All landowners are members of the Lammermuir Moorland Owners Group and neighbours to Fallago Rig are disappointed by the lack of concern for the impact on the environment. They feel that this action by a member of the group may reflect badly on all estate owners.

4.103 Black Mountain Farms are concerned about the effect on upland bird populations of the increasing footprint of wind farms and the physical numbers of turbines. In 2008 there were 73 turbines built in the Lammermuirs. There are now 124 built, with an additional 161 in the planning process, including the 48 proposed at Fallago Rig (BMF8). The bird study considered at the first inquiry is now 8 years old. Black Mountain Farms are surprised that Scottish Natural Heritage used this out of date work to inform its current conclusions. Black Mountain Farms note that the Royal Society for the Protection of Birds (RSPB) questions the accuracy of that study.

4.104 The Duke of Northumberland (Burncastle Estate) and the RSPB are finalising a research contract to survey areas managed by Black Mountain Farms’ estates. Results will be available in the autumn. This will give a clearer picture of species and numbers,


demonstrating the ornithological importance of the Lammermuirs and the importance of landowners’ management of this fragile environment. Black Mountain Farms consider that no decision on Fallago Rig should be taken until these results are available.

4.105 Since 2008 there is new evidence to show that the economics of grouse moor management and biodiversity development are inextricably linked. This is particularly so in the creation and maintenance of favourable habitat for waders. Research carried out on moorland in northern England was published in March 2010. It finds that predator control associated with managed grouse moors increases the breeding success of curlew, lapwing and golden plover at least three-fold. This underlines the importance of the central Lammermuirs as an ‘engine room’ for wader production and protection.

4.106 Whilst wind turbines pose a collision risk for certain birds, there is new evidence that potential for disturbance is more significant than previously thought. Populations are displaced by turbine construction and road building. The Pearce-Higgins study is the first study on the impact of wind turbines on peatland birds and was published in 2009. It found a significant overlap between wind farm sites and peatland bird habitats and that the breeding success of several species of important upland birds, such as curlew, golden plover and lapwing, is seriously diminished within 500 metres of turbines.

4.107 Black Mountain Farms are concerned about this increasing risk and may better understand its implications for peatland birds once the RSPB study has concluded. In the meantime, the Pearce-Higgins study informs their view that disturbance causes the gradual displacement of indigenous and migratory birds and native wildlife. There would be degraded conditions at the heart of the only remaining area of the Lammermuirs which has any hope for meaningful conservation efforts.

Planning policy issues

4.108 A finding in the first report was that the development would be ‘temporary’, lasting for 25 years and that most of its impacts would be reversible. Paragraph 105 in Circular 4/1998 makes it clear that the material considerations to which regard must be had in granting any permission are not limited or made different by a decision to make the permission a temporary one. Thus a reason for granting a temporary permission can never be that a time limit is necessary because of the effect of the development on amenity. Where such objections arise they should be met by conditions that will safeguard amenity. If such conditions are not possible and the adverse impact on amenity is not acceptable, then the proper course is to refuse consent and/or planning permission. Therefore, the ‘temporary’ nature of wind farms is not mitigation for adverse impacts. The latest advice from Scottish Natural Heritage is that assuming the decommissioning of a site at the end of the 25 years is an unlikely outcome. Therefore, Black Mountain Farms considers that the ‘temporary’ nature of the turbines should be given no weight in the assessment.

4.109 The previous report concluded that the proposed development does not comply with the development plan and that there is partial non-compliance with draft local plan policy D4. However, it was stated that the positive wider environmental benefits of the generation of renewable energy and the contribution this would make to the achievement of Government targets outweigh the damage to the environment.


4.110 The report does not set out what these wider environmental benefits are, how they relate to Fallago Rig, and exactly how the planning balancing exercise has been conducted. This means that the reasoning cannot be followed, dissected and reviewed nor can the balancing exercise be validated. Non-compliance with the development plan creates a presumption for refusal. It is unreasonable, given the public interest, that there should be a simple assertion that government policy outweighs clearly identified adverse environmental effects and policy non compliance. That simplistic setting aside of the development plan presumption is not in the public interest and negates the operation of the planning system. The full reasoned process of the planning balancing exercise should be set out so that the process is clear.

4.111 The first report concludes that the entire development plan and other policy conflicts are outweighed by policy support for renewables. This cannot possibly be the case, as it would negate the entire section 25/section 37 process in the Town and Country Planning (Scotland) Act 1997. Statute gives primacy to the development plan. If a material consideration overcomes policy compliance/non-compliance then it is usually quite easy to see why that should be.

4.112 In the process leading to the reopening of the inquiry the Ministers’ civil servants, whilst acting as decision makers, did not simply receive ‘new evidence’, but rather, in secret, they actively set out to persuade the Ministry of Defence to find a way to remove its objection. Those actions fundamentally undermine confidence in the public inquiry system. Black Mountain Farms considers that the application should be refused on the basis of an attempt to undermine the proper operation of the planning system.

4.113 The adopted local plan policies D4 and EP2 should now carry greater weight. Black Mountain Farms considers that the proposed development is not in accord with the relevant local plan policies on account of its significant adverse landscape and visual impacts, including adverse effects on the Area of Great Landscape Value and cumulative landscape and visual effects that are not outweighed by either the generic benefits of the generation of renewable energy (as these are already factored into the favourable renewable energy policy environment) or by the limited economic benefits. The presumption, in law, should therefore be for the refusal of planning permission unless material considerations indicate otherwise.

4.114 The planning witness for Black Mountain Farms acknowledged that a finding in the first report was that the proposed development accorded with the finalised draft local plan policy D4. This policy is now the adopted policy and he accepted that that meant that the development is therefore in accord with that policy, although the conflict with the structure plan remains.

4.115 The most recent expression of government renewable energy policy is the July 2009 UK Renewable Energy Strategy (NBW22). Although ambitious targets are set out in this strategy, there is no basic change to the normal planning processes. Applications still fall to be determined on the basis of the development plan unless material considerations indicate otherwise. The balancing exercise is recognised and there is no assertion that renewable energy developments should be permitted on unsuitable sites. Black Mountain Farms accept that the strategy should not be ignored, but neither should it be a prescription for every application.


4.116 In addition, at no point does national energy policy or strategy set out how the building of any on-shore wind turbines actually delivers measurable and attributable CO 2

savings to the extent claimed by various wind farm projects. Nor does it set out how or what the measurable climate change benefits of any wind farm will be. Yet these elements are normally the principal claimed benefits for onshore wind farms. In carrying out the normal balancing exercise, comparing benefits and disbenefits, the decision maker preferably needs to be comparing like with like. That is, they need to be specific about what the benefits of a scheme actually comprise and how these benefits are weighed in the balance.

4.117 The Scottish Government targets on renewable energy generation remain as they were at the first inquiry. However, since then, considerably more schemes have been built and even more have been consented. There is a revived interest in hydro schemes and some progress is now being made with marine renewables. The targets are on course to be met and there is even less of a pressing need to grant schemes such as Fallago Rig. Indeed, there is nothing in the setting of these targets that directs the decision maker to grant permission for onshore wind farms in unsuitable locations.

4.118 The National Planning Framework 2 has been published. There is nothing in it that suggests that its provisions overrule an up to date development plan or change the balancing exercise that has to be undertaken. Effectively, the consideration of national planning policy guidance remains as it was at the first inquiry. However, when questioned by the applicant Black Mountain Farms’ planning witness conceded that national planning policy support for renewable energy has increased since the first inquiry.

4.119 The recent unauthorised works are relevant because of the proposed pre-start conditions recommended in the first report. A detailed accompanied site visit is required. The applicant’s explanation for these works is not plausible. Black Mountain Farms consider that these works are wind farm works and that an attempt has been made at an early start on the development. Given a finding of unauthorised works, the development can never comply with proposed condition 9. There will also have been a breach of the proposed conditions 11, 12, 13, 21, 22, 23, 25 and 27. The development could not proceed as envisaged, as there has been a breach of key planning conditions that cannot now ever be complied with. However, when questioned by counsel for the applicant, the planning witness acknowledged that a developer cannot lawfully commence a planning permission until that permission has been granted.

4.120 Black Mountain Farms consider there should be a section 75 agreement containing all of the provisions for the decommissioning and restoration and possibly provisions for the delivery of benefits.

4.121 Black Mountain Farms agree with the written submission made by Scottish Borders Council and are supportive of the position of the Joint Community Councils.

The re-opening of the inquiry

4.122 The decision to invoke Rule 21(4) of the Inquiries Procedure Rules is flawed and not within the power of the Scottish Government Renewable Energy Division. The Rule only applies where a decision maker is inclined to disagree with the report of the reporter


and where the evidence he has considered is new and has not previously been considered at the inquiry.

4.123 All the radar issues were fully considered at the first inquiry. Nothing subsequently revealed discloses that any new radar process, installation or operational technique relevant to Fallago Rig has been devised which would overcome the problems identified at the first inquiry. There is no new factual evidence, other than evidence of the Ministry of Defence’s changed intention. There is no new government policy to be taken into account. Accordingly, the re-opening of the inquiry is not competent and is an action outwith the powers of Scottish Ministers.

4.124 In these circumstances, the Scottish Ministers do not, any longer, constitute an independent and impartial tribunal for the determination of the Fallago Rig application. There is a real risk that there will be a perception that they will be biased and that, in any event, they have already predetermined the outcome of this application. The application should, therefore, be refused forthwith, since it can no longer be fairly decided.

4.125 Article 6 of the European Commission on Human Rights and the Human Rights Act 1998 provide that in the determination of his civil rights everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Scottish Ministers, faced with the first report and having announced their intention to differ from the reporter (which means they intend to grant the application) can be said to have determined the outcome of the application without hearing further evidence.

4.126 The use of Rule 21(4) to hear parties’ submissions is therefore cosmetic. None of the objectors has withdrawn their objections. By engaging with one of the parties to the inquiry in a covert manner (BMF21 & 22), Scottish Ministers have signalled their intention in advance of the second inquiry to find a way to grant consent, despite what any other party may say.

4.127 It is axiomatic that any independent and impartial tribunal will adhere to the rules of natural justice. Collaboration between officials of the decision maker and one or more parties of the type described is a breach of natural justice. It is also a breach of the established maxims that no-one may be a judge in his own cause and that both sides must be heard. The Scottish Ministers are the judge in this case and not only have they acted in their own cause they have excluded relevant and opposing parties. The perception of irretrievable bias in this process is thus complete, vitiating any decision made hereafter. Bias or the appearance of bias has been present since the private conversations were instigated in early 2009.

Scottish Borders Council (written submission)

Cumulative landscape and visual impacts

4.128 The cumulative impacts resulting from this proposal continue to be the key argument in opposition to it. The balance of arguments for and against Fallago Rig has changed, now being more weighted against the proposal than was previously the case. This is because:


the evolving wind farm development situation in the Scottish Borders and elsewhere in southern Scotland has increased the areas of landscape affected by cumulative wind farm development and increased the importance of keeping some areas free of wind farm development; and

Fallago Rig would now represent a smaller proportion of the installed and consented capacity in Scottish Borders and nationally, and smaller still when other applications are taken into consideration.

4.129 Wind farms within the Lammermuir Hills area are shown in Table 1 of SBC109. Since the first inquiry five new wind farms have been built (Dun Law 2, Toddleburn, Crystal Rig 2 and 2a, Aikengall). Together these represent a more than 350% increase in installed capacity over the past two years, from 107MW to 377MW. One minor new consent (Pogbie) has appeared, located near Dun Law. Four new applications (Rowantree, Keith Hill, Aikengall 2, Brockholes) have also appeared in addition to Fallago Rig. However, one (Keith Hill) was recently dismissed at appeal, since publication of the Supplementary Environmental Information 2010.

4.130 All but three of the wind farms in the Lammermuirs area relate to one or other of the two main clusters (Dun Law and Crystal Rig), with Fallago Rig lying between the two. Black Hill (operational) and Brockholes (application) are in the south east of the Lammermuirs area. In total there is a 31-35% increase (from 521MW to 681-706MW) in capacity of operational, consented or submitted applications within the Lammermuirs area since the last inquiry.

4.131 Outside the Lammermuirs, the wider study area up to 30 kilometres from Fallago Rig includes more upland areas to the west, including the Moorfoot Hills (Table 2, SBC109). It also includes the Lothians Plain, coast and part of the City of Edinburgh to the north and the River Tweed Lowlands to the south of the hills. However, all of the wind farms in the area are located in the upland or coastal areas. Whereas there was only one installed wind farm in 2008, there are now three – all located in the uplands to the south and west of the Lammermuirs. Halkburn could be considered to be an extension of the Dun Law cluster south of Rowantree (if Rowantree were built), although it is clearly separate from the currently operational Dun Law group. Carcant and Bowbeat are visible to the west but too distant to be considered part of the Dun Law cluster.

4.132 One wind farm has been consented at Drone Hill on Coldingham Moor. Again it is too far separated from the Crystal Rig cluster to be considered as part of it. It will, however, feature in background views to the east. These wind farms are not located in the core of the Lammermuir Hills. However, they feature in the background in views from the Lammermuirs on a clear day, or to a travelling receptor, and add to the cumulative influence of wind farms on the upland landscape in and around the Lammermuir Hills.

4.133 The wider study area, between 30-60 kilometres from Fallago Rig, includes almost all of the Scottish Borders, the Lothians, the north of Northumberland and south of Fife (Table 3, SBC109). To date, only one small wind farm has been built in this area, at Pates Hill in West Lothian, although four wind farms have been consented. Two of these (Langhope Rig and Glenkerie) lie in the Southern Uplands within the Scottish Borders. There are five applications, three of which lie in the Scottish Borders: Broadmeadows and Minch Moor lie just south of the Moorfoot Hills at just over 30 kilometres south west from


Fallago Rig; Auchencorth lies just north of the Moorfoots at just over 30 kilometres; Whitton is in the Cheviots, over 40 kilometres to the south.

4.134 Whilst it is clear that these wind farms would be unlikely to affect perceptions of the Lammermuir Hills landscape, they affect the context, particularly for travellers within the Borders and Lothians.

4.135 The Supplementary Environmental Information 2010 clearly states that most of the wind farms listed above were considered in the cumulative assessment in the 2008 inquiry as if they were built. Nevertheless, the changes include the construction of wind farms that were applications and the addition of further applications has indicated the potential for future increase in cumulative impacts. The total operational, consented and planned capacity in the 60 kilometre study area has increased from 794-803MW in 2008 to 1012-1053MW in 2010, an increase of between 27% and 32%.

4.136 Table 4, SBC109 shows that the key area of wind farm development in the study area has been in the Lammermuir Hills, with nearly 70% of the capacity. Since the first inquiry there has been a massive increase in installed capacity, mainly in two clusters based around Dun Law to the west and Crystal Rig to the east, with the central part of the Lammermuirs remaining undeveloped. Further proposals in the planning system would add significantly to these clusters if approved. Fallago Rig lies directly between these two clusters.

4.137 Further afield there are very significant developments in South Lanarkshire, just over the 60 kilometre limit, including Clyde wind farm currently under construction around the M74 between Abington and Elvanfoot and Black Law wind farm near Forth.

4.138 Scottish Natural Heritage has recently published updated guidance on the design and siting of wind farms and on the assessment of cumulative impacts. Relevant extracts from Siting and Designing Windfarms in the Landscape (SBC111) are reproduced below:

“6. One of the potential consequences of considerable wind farm development across Scotland could be that few landscapes might be left unaffected by wind farms. This would diminish the diversity which is one of the key characteristics of the Scottish landscape. Good strategic planning can help to avoid this by ensuring that wind farms are sited within those areas best able to accommodate them. It should also mean that areas less suitable for such development, or more valued for the present character or qualities of the landscape, can be kept free of wind farm impacts. Views of wind farms from within these areas may also be affected, and will therefore require careful consideration. This has been shown by some planning exercises.

18.Where an area is identified for multiple wind farm developments, it will be important to establish a clear boundary to that area. This is in order to achieve visual separation, such that those travelling through the landscape will perceive a clear distinction between the wind farm landscape and the landscape outwith. Otherwise, the perception of being within a wind farm landscape may become extended, or may only peter out gradually, thus losing diversity in the landscape experience. There may be some benefit in maintaining the current development pattern – of clustering and gaps – that has evolved in some areas due to a range of


opportunities and constraints. This approach should also help to address cumulative impacts.

19.The scale required of such landscape planning is necessarily large, given the extent of a typical large wind farm which may extend across local authority boundaries. Surrounding areas to be kept free of wind farms may have to be substantial to be effective, considering intervisibility and sequential impacts. They also need to take account of the distance necessary to provide an area of undeveloped ground in between. Perception of this will typically depend on factors such as the concealment offered by landform and wind farm size. In very open landscapes larger separation distances may be required than in hilly areas where the landform may provide more effective visual separation.”

4.139 The implication of this guidance is that wider strategic planning considerations and policies are required in order to provide a framework for wind farm development which protects the landscape from cumulative impacts. This approach is endorsed by the Scottish Planning Policy and given further detail in PAN 45 Annex 2. These documents recommend that local authorities develop a spatial framework for wind farm development based on environmental constraints. One of the key constraints to be considered is where areas have reached their cumulative development capacity.

4.140 Scottish Natural Heritage’s updated draft cumulative assessment guidance (SBC113) states that:

“43. A crucial element in identifying the potential for adverse cumulative impact is the concept of a ‘threshold’ beyond which wind farms in a particular area become unacceptable. In other words the effect of the present proposal is limited, but when added to the effect of what has already been allowed or to new proposals which have been submitted for planning permission, it becomes over-dominant in planning terms. The principal difficulty in applying such an argument will be the identification and then justification for that threshold. In the case of wind farms, assertion of a capacity or limiting threshold for wind farm development is likely to be based on a well-considered judgment on the limits in extent, scale and distribution of wind farm development which could be accepted within an area, informed by:

an analysis of landscape and visual sensitivities based on the magnitude of change, pattern and scales of development, and how the landscape is experienced; or

a wind farm capacity study; or another strategic perspective.

It is unlikely that such thresholds or capacities can be simply expressed in terms of turbine numbers or power output; they are more likely to be expressed in terms of acceptable limits of change. It is important that clear and reasoned justification for the setting of these limits is given.”

4.141 The implication of this is that there are levels of cumulative wind farm development, beyond which change to the landscape becomes unacceptable and that this limit can be reached by inclusion of one additional wind farm, even though it may have


limited effects on its own. The determination of what is an acceptable level of cumulative development within a landscape area is a complex issue requiring a number of stages:

1) a concept of what levels of cumulative development there are or could be within a landscape (a series of development thresholds between a landscape with no wind farms and a landscape dominated by wind farms);

2) agreement on what would be an acceptable level of cumulative development for the area concerned, using the development threshold models agreed at stage 1;

3) assessment of existing, consented and application wind farms to determine what level of cumulative development there is/could be and what level, if any, would cross the threshold of acceptability as determined by Stage 2 above.

4.142 The development thresholds and the threshold of acceptability would have to be determined through a landscape study and planning consultation exercise. In accordance with Scottish Planning Policy and PAN 45 Annex 2, Scottish Borders is currently developing supplementary planning guidance and a spatial framework for wind farms. As part of developing the framework an assessment of cumulative development will be made, including identifying areas where the limit of acceptable cumulative development has been reached.

4.143 The change in baseline would lead to more extensive and significant cumulative effects than was the case in 2008. The Cumulative Base Plan in Figure 1 of the Supplementary Environmental Information 2010 illustrates the distribution of wind farms around the Lammermuirs. To the west the principal group of Dun Law 1 and 2, Pogbie and Toddleburn creates a Wind Farm Landscape on Fala Moor and the western edge of the Lammermuir Plateau, with less than 2 kilometres separation between groupings (Keith Hill is no longer considered).

4.144 To the south of this Rowantree (application) and Halkburn are approximately 4 kilometres and 7 kilometres separated respectively from their nearest wind farms. Broadmeadows and Minch Moor are 12 kilometres to the southwest of Halkburn. Carcant is 9-10 kilometres to the west of Dun Law and Bowbeat is 9-10 kilometres south west of this. This distribution means that from the western edge of the Lammermuirs, through the Moorfoots and down through Fala Moor into the Southern Uplands to south of Galashiels a Landscape with Wind Farms could evolve.

4.145 In the eastern Lammermuirs the substantial grouping of Crystal Rig 1, 2 and 2a, together with Aikengall, has created an extensive Wind Farm Landscape (an assessment made also by the applicant). This would be significantly extended to the south and east were Aikengall 2 to be constructed. This wind farm in turn would be separated from Drone Hill to the east by no more than 11 kilometres, Black Hill to the south by 9 kilometres and Brockholes (application) to the south east by 9 kilometres. This would create a Landscape with Wind Farms over the eastern Lammermuirs and Coastal Moorland of Coldingham Moor.

4.146 Currently there is a gap of some 16-17 kilometres across the central Lammermuirs between the two areas of Wind Farm Landscape/Landscape with Wind Farms. The location of Fallago Rig within this area and its effect in linking the groupings was extensively covered at the 2008 inquiry This impact has now become more critical.


4.147 Whilst extension of existing clusters can be viewed as an incremental increase of an existing effect, development of an area currently without wind farms would usually have a much greater effect. In the case of Fallago Rig, the impact on the Central Lammermuir Plateau character area would be largely novel. Furthermore, there would be an expansion of cumulative impacts over a much wider area, with Fallago Rig ‘joining’ two significant clusters in terms of effects on the landscape. This situation has become more significant since the 2008 inquiry.

4.148 Published guidance clearly indicates that the location of wind farms in relation to the landscape is an important factor in determining their impacts. In considering Fallago Rig at the previous inquiry much was made by the applicant of the role of the topographical bowl in which the site is located. Comparisons were drawn with the bowl in which Crystal Rig wind farm is located.

4.149 Scottish Borders Council agrees that the degree to which the original Crystal Rig wind farm would be screened by the lip of the north Lammermuir escarpment is indeed notable and the wind farm would hardly be visible from outwith the hills. However, with the development of Aikengall wind farm, which has extended over the lip of the Lammermuirs, this development principle has been breached. Wind turbines are now clearly visible from the east coast of East Lothian and from the town of Dunbar. This situation would be further compromised if Aikengall 2 were developed. Two photographs illustrating this point are shown in SBC117. vv

4.150 Similarly Dun Law I and 2 and Toddleburn are relatively contained from the north by being set back from the Lammermuir escarpment. This has now been compromised in a modest way by the consent of Pogbie, which lies further north. It would have been significantly compromised by the proposal at Keith Hill which would have been prominent and widely visible over the Lothian plain. It is for this reason amongst others that the appeal for this wind farm has recently been dismissed.

4.151 It is clear that even the clusters around Crystal Rig and Dun Law are showing the potential for qualitative differences in impact in addition to the incremental impact that would be expected from the additional turbine numbers. This is indicative of the reduced amount of suitably hidden space that is available within the Lammermuir Hills, necessitating extension into areas that are more compromised in their ability to absorb wind farm development.

4.152 Since the 2008 inquiry there has been a significant actual and potential increase in the area of Wind Farm Landscape and Landscape with Wind Farms to the west, south and east of the Central Lammermuir Plateau. Nevertheless, the council also concludes that the expansion of wind farms in the east and west of the Lammermuirs since the first inquiry does not significantly increase the cumulative landscape impacts on the Central Lammermuirs that would result from Fallago Rig. The Lammermuirs would effectively become a Landscape with Wind Farms. The council accepts that the separation between Fallago Rig and the other clusters would remain much as before and Fallago Rig is the key to these impacts. vvv

4.153 However, the council’s view is that the changes to east and west elevate the importance of the Central Lammermuir Plateau in the wider landscape of the Scottish Borders and Lothians, as a substantial landscape character area without a wind farm.


Existing, consented and proposed developments to the east and west of the Lammermuirs are located close enough to one another such that broad areas of uplands and coastal areas of Scottish Borders and East Lothian are now, or could become, Landscapes with Wind Farms.

4.154 The Central Lammermuir Plateau is the largest gap remaining between wind farm groupings in the Lammermuirs and within the 30 kilometre study area and therefore strategically the most important opportunity to preserve diversity in the landscape. The development of Fallago Rig would lead to coalescence of the two substantial developed areas, creating a Landscape with Wind Farms between the east coast and across the Lammermuirs and Moorfoots into the Southern Uplands.

4.155 The two years since the first inquiry has seen a significant increase in operational and consented capacity locally, regionally and nationally. This has two implications in respect of the Fallago Rig application:

the proportion of installed generation capacity represented by Fallago Rig would be notably less in February 2010 than it was in February 2008; and

the extent of landscapes significantly affected by cumulative wind farm development has increased, making the Central Lammermuir Plateau more strategically significant as an area currently free of wind farm development.

4.156 Scottish Borders Council concedes that the 2008 assessment considered the wind farm consents and applications in the Lammermuir Hills and wider study area as if they were built. Nevertheless, consented and other wind farms have been built, applications consented and more applications made in the past two years. This has increased the level of certainty in the assessments and introduced the possibility of more extensive and significant cumulative effects.

4.157 Landscape planning guidance produced since the first inquiry has acknowledged that there is a need for co-ordinated landscape planning on a wide scale in order to maintain the variety of character in the Scottish landscape. The ‘Clusters and Spaces’ concept addresses this by building on the already clustered nature of wind farm development across Scotland. Areas which are currently undeveloped should therefore be considered carefully before wind farm development is allowed.

4.158 The balance of cumulative landscape and visual impacts against benefits of renewable energy has changed sufficiently over the past two years to reconsider the conclusion reached in the report of the inquiry that, although Fallago Rig would lead to significant cumulative landscape and visual impacts, these would not outweigh the environmental benefits of the generation of renewable energy.

Planning policy

4.159 Scottish Borders Council’s development plan now consists of the Scottish Borders Structure Plan 2001-2018 together with the Scottish Borders Local Plan 2008. The policy provisions against which the development should be assessed are structure plan policies I19, I20 and N11 and local plan policies D4 and EP2. The previous report concluded that the development was contrary to policies I19, I20 and N11 and the then emerging policy EP2. The report considers that the proposal was consistent with the


emerging policy D4. All of these policies are in precisely the same terms as those which were considered in 2008.

4.160 In light of the change to the cumulative impact of wind farm development highlighted above, the balance should be redrawn and should conclude that the benefits do not outweigh the impacts. In addition, the proposed aviation condition is such that, if imposed, there would be conflict with policy D4. The council submits that the proposal is, therefore, wholly contrary to the development plan. This change in balance of findings should impact on the acceptability of the scheme.

4.161 The new national policy documents that have emerged since the first inquiry (Scottish Planning Policy, Annexe 2 to PAN 45 and the National Planning Framework 2) have not significantly altered the context within which the proposal should be considered. The Scottish Planning Policy retains the premise that wind farm development should be supported by the decision maker wherever it can be achieved in an environmentally acceptable fashion. It also retains the concept that cumulative impact is one which must be given careful and serious consideration. It continues to recognise that areas designated for their regional and local landscape or natural heritage value should be considered when identifying areas with potential constraints on wind farm development.

4.162 The proposed Aviation Condition is unacceptable and should not be imposed. The condition would be unreasonable and therefore ultra vires. If the scheme suggested by the condition were to be imposed, the solution it suggests so alters the nature of the development proposal that it renders the proposal unacceptable.

4.163 The condition is premised on tests being able to demonstrate that an acceptable Aviation Specification can be achieved at the site. The nature of the condition itself, however, underlines the fact that it is not yet established that it is possible to achieve an acceptable Aviation Specification. Nonetheless the condition proposes allowing the turbines to be erected pending the attempted implementation of this scheme. It is acknowledged in the Statements of Case of the Ministry of Defence and North British Windpower that there is a possibility that the turbines could be erected and not become operational. This in itself makes the proposed scheme unacceptable and should result in the refusal of the application.

4.164 The Scottish Government has provided guidance that confirms that there should be a reasonable prospect of the action being performed within a reasonable time frame. Scottish Borders Council does not contend that there is no reasonable prospect of the Aviation Specification being met. The council has no knowledge upon which to base a conclusion one way or the other. What causes the council some concern is that the Ministry of Defence, the body which does hold the expert knowledge in that regard, cannot state that the Aviation Specification would be achieved. Nonetheless the Ministry of Defence agrees that, following the agreement of a Radar Mitigation Scheme, the turbines can be erected. The turbines shall not, however, become operational until such time as the Aviation Specification has been achieved.

4.165 The letter from Ministry of Defence to the Scottish Government dated 1 July 2009 does not state that the integration of RAF Leuchars would prove to be possible. Nor, indeed, does it say that if the integration is possible then the Aviation Specification shall be


met. The comment is that the Aviation Specification is “likely to be achieved” by the full integration of RAF Leuchars.

4.166 The Heads of Agreement provides that the Ministry of Defence “shall use reasonable endeavours to complete the integration within two years”. It is significant that it is not bound to complete integration within two years. This is presumably because it may not prove feasible to do so within that timescale. It must be borne in mind that the integration of Leuchars Watchman Radar will be an experimental procedure. It must therefore be a foreseeable risk that integration could take significantly longer than anticipated and indeed ultimately may not be achievable at all.

4.167 This is not an acceptable approach. The previous report found that the cumulative impact of the proposed development would be significant and sufficient to render it non-compliant with a number of development plan policies. The impact was considered to be outweighed by the deliverability of 144 megawatts of renewable energy. Should the turbines be erected and remain inoperable there would be no renewable energy to outweigh the impact.

4.168 In that scenario, the Central Plateau of the Lammermuirs would bear the intrusion of the turbines which remain inoperable for a considerable period of time. It remains possible that they may not become operable at all. The previous report commented that “the proposed development would last for a temporary period of 25 years and most of its impact would be reversible”. The council queries whether this condition, which could significantly lengthen the period of time over which the impact occurs, alters the conclusion in respect of the acceptability of the development.

4.169 It could perhaps be considered that the limited lifespan of the development should ease this concern. However, in terms of the suggested condition 1, the 25-year lifespan of the development would commence when electricity was first produced for the grid. The lifespan of the impact would therefore be the 25 years of the operation of the wind farm, together with that undefined period of time during which the turbines would be erected but not operational.

4.170 In the case of Merritt v Secretary of State for Environment, Transport and Regions and Mendip District Council [1999] EWHC Admin 783 (5th August, 1999), the High Court in England considered that in assessing the acceptability of a suspensive condition the decision maker should consider the actual implications of imposing such a condition and whether it would cause demonstrable harm. The demonstrable harm in this case would be the erection of the turbines with the ensuing landscape impact without the benefits which would flow if the turbines were operational.

4.171 Further, should it transpire that the acceptable Aviation Specification could only be achieved by removing an unknown number of turbines; the renewable energy generated by the development would be less. In those circumstances it is impossible to determine whether the renewable energy which would be produced by the development would be sufficient to outweigh the impact.

4.172 In the face of such uncertainty the condition is unreasonable and should not be imposed. Furthermore, in the absence of an aviation condition the development remains at


odds with the national security interest previously explained by the Ministry of Defence and the application should be refused.

4.173 The council considers that, while progress has been made in respect of the radar mitigation issue, it is far from resolved. The appropriate course of action would be for Scottish Ministers to refuse the application. If it is established that the Aviation Specification can be achieved then a fresh application could be lodged. This would ensure that the development proposal could be properly weighed in light of its benefits, its impact and its compliance with the development plan and national policies.

The works undertaken on site

4.174 On Monday 12 October 2009, information was received by the Enforcement Section of Scottish Borders Council Planning Department that work had allegedly started on the access road in connection with the Fallago Rig Wind Farm application. The complainant was contacted for further information that day and returned the call on Friday 16 October. The information did not detail exact location or degree of works being undertaken, other than it appeared to be in connection with the road access and River Dye crossings.

4.175 On Wednesday 21 October, 2009 Enforcement Officers carried out a site investigation along the Dye Valley from Trottingshaw to Byrecleugh, where the metalled roadway finished. The track was not further investigated further on this occasion due to the unsuitable nature of the surface and the vehicle available.

4.176 During this site investigation, it was established that workmen were actively carrying out excavating works on the banks of the River Dye between Trottingshaw and Byrecleugh. Enquiry with the operator of the machinery confirmed that he was carrying out the works for Roxburghe Estate for a bridge crossing. It was also confirmed that the materials being used had been won from a nearby existing farm/estate quarry. The workmen were not required to stop work at that time as it is accepted enforcement practice to establish fully the circumstances of any alleged unauthorised development in order that a fair, reasonable and consistent approach is made in all cases.

4.177 As there had been an allegation that these works had been carried out in connection with the Fallago Wind Farm application, site plans for this development were checked and it was established that the location where large compressed hardcore pads were being formed correlated with a location identified for a water crossing on the access route for the wind farm development. Examination of the plan also indicated that the existing quarry where materials had been won was also identified as a borrow pit location on the plan.

4.178 On this basis the Factor for Roxburghe Estates, Mr Roddy Jackson was contacted by e-mail and asked for comment regarding the works that were being undertaken on Roxburghe Estate land.

4.179 On 26 October 2009, Cranshaws, Ellemford and Longformacus Community Council contacted Scottish Borders Council Planning Department with concerns that foundations for bridges had been constructed at several points along the Dye water and that borrow pits had been opened. The Enforcement Section of the Planning Department


contacted the Community Council and confirmed that they were currently carrying out enquiries with the land owner regarding works that had been undertaken in the area.

4.180 On 26 October, Mr Jackson of Roxburghe Estates contacted Enforcement Officers and indicated that track improvement works were being carried out by the estate and that it was understood that these were covered under permitted development. Mr Jackson was asked to attend a meeting at Council Headquarters on 5 November, 2009 when the nature of the works could further be discussed.

4.181 On 28 October 2009, Mr Jackson of Roxburghe Estates contacted Enforcement Officers by e-mail informing them that in addition to works carried out by Roxburghe Estate on the access road on their land, North British Windpower had undertaken site investigation works involving small trial pits, which had been back-filled, and several rotary core drill boreholes. All but three of the boreholes had been filled on completion.

4.182 On 3 November, 2009 Enforcement Officers carried out a further site investigation along the Dye Water valley. On this occasion they travelled the entire length of the access route from Trottingshaw up to the entrance of the proposed wind farm site. It was established that works to construct hardcore pads had been completed at the area previously under construction between Byrecleugh and Trottingshaw. It was further established that at one location near to Kersons Cleugh, works had been carried out to form large pads of compressed hardcore adjacent to an existing smaller scale water crossing.

4.183 It was also confirmed, that along the route of the access several sites had been marked with the letters BP in spray paint. These sites corresponded with sites identified on plans connected with the wind farm application for borrow pits, although there was no new evidence of recent use. Close to the entrance to the wind farm application site it was noted that two white poles with chevron tape fixed between was positioned directly under the electricity pylons that traversed the site. The route via Wedderlie Farm was travelled as far as Wedderlie, where it was observed that work had been undertaken along the course of the route on both banks of the Blackadder Water.

4.184 On 5 November 2009 a meeting at Council Headquarters was attended by Scottish Borders Council Enforcement Officers, Mr Roddy Jackson of Roxburghe Estates, Mr Graham Irwin of North British Windpower and Mr Bruce Gilchrist farm manager for Rawburn and Byrecleugh Farms. The purpose of the meeting was to discuss the alleged unauthorised works carried out along the Dye Water Valley and in the area of Wedderlie Farm near to Blackadder Water. Mr Jackson confirmed that land at Wedderlie Farm was not owned nor under the control of Roxburghe Estate.

4.185 When asked to explain the circumstances of the development along the Dye Water, Mr Jackson stated that as a result of access difficulties over and through adjoining land, Roxburghe Estate intended to upgrade existing access tracks and provide a water crossing. These works would link Rawburn and Byrecleugh Farms, which were being operated as a single unit under Mr Gilchrist’s management. Mr Jackson maintained that both the bridge footings were connected with the agricultural operation of the estate and were therefore covered under agricultural permitted development.

4.186 Enforcement Officers stated that they were not minded to accept the argument in terms of class 18 permitted development on the basis that the degree of ground preparation


works undertaken thus far was significantly greater than what would have been expected for agricultural water crossings at the location, and would have been more akin with larger scale constructions. Mr Jackson stated that the construction and materials to be used for the crossings had not been finalised and produced several drawings showing various designs.

4.187 Enforcement Officers reiterated concerns relating to the size of the bridge footings and advised that discussion with SEPA (Galashiels office) had indicated that Roxburghe Estates had enquired about temporary structures and that what had been carried out on the ground was clearly not of a temporary nature. Enforcement Officers thereafter made a request of Roxburghe Estates to cease any further works. Should they wish to pursue the development of the two water crossings, they were advised that a planning application would be required, as the scale of the current development required it. Scottish Borders Council Enforcement Officers intimated that they would formally write to Roxburghe Estates on this basis.

4.188 The matter of the works near to Wedderlie Farm on the Blackadder Water was again raised by Enforcement Officers. Mr Irwin of North British Windpower intimated that he was unaware of any works being carried out at the location in connection with a water crossing. However, he was aware that the farmer was carrying out work on the banks due to difficulties being encountered with livestock accessing the land. When pressed, Mr Irwin confirmed that he would have the works stopped.

4.189 Subsequent correspondence from Roxburghe Estates confirmed that no further works would be undertaken at that time, although it was contested that their current operations were agricultural permitted development. Correspondence was also received from North British Windpower stating that they had passed the enforcement letter to FBR, land surveyors of Kelso, who acted as agents for the land owner at Wedderlie. They understood that the land owner had ceased works at the request of Scottish Borders Council. It was re-iterated that North British Windpower was not the land owner at Wedderlie and had not been responsible for the work at that location.

4.190 On 11 November 2009 Enforcement Officers emailed Scottish Government Renewable Energy Division, Directorate for Planning and Environmental Appeals, North British Windpower, Ellemford, Cranshaws and Longformacus Community Council, SEPA, John Lamont MSP and four Scottish Borders Council elected members for the Berwickshire area confirming that enforcement investigations had been concluded and several locations of unauthorised development had been identified. It was intimated that the appropriate land owners had been required to undertake no further works.

4.191 As Roxburghe Estate may carry out further works at the water crossing locations, which could be agricultural permitted development (subject to consideration by Scottish Borders Council), and because there may be implications for the water crossing locations subject to any future planning approval for the wind farm development, Enforcement Officers concluded that it would be inappropriate to require the works undertaken be reinstated at this time.


Scottish Natural Heritage (written submission)

Ornithology

4.192 The research reported in the Pearce-Higgins paper was co-funded by the Royal Society for the Protection of Birds, Scottish Natural Heritage and the Scottish Government, with an additional contribution from the Scottish Mountaineering Trust. Scottish Natural Heritage staff are co-authors of the published paper. Scottish Natural Heritage does not consider that the results published in the Pearce-Higgins paper should lead to an updated assessment of the likely effects on upland birds for the Fallago Rig wind farm proposal. The information contained in the Pearce-Higgins paper does not alter Scottish Natural Heritage’s previously stated position on birds for the proposed wind farm.

4.193 Previously Scottish Natural Heritage advised that the Fallago Rig site does not contain the range of bird species that would flag it as being sensitive and the Fallago Rig proposal would not impact significantly upon bird interests, including Annex 1 birds (letter dated 19 August 2005). Merlin was identified as the main bird interest present at the proposed wind farm site. Fallago Rig would not have a significant impact on the Borders’ merlin population.

4.194 The Pearce-Higgins paper states that, “Seven of the 12 species studied exhibited significantly lower frequencies of occurrence close to the turbines, after accounting for habitat variation, with equivocal evidence of turbine avoidance in a further two”. Merlin does not feature in the list of species exhibiting significantly lower frequencies of occurrence close to the turbines and is not mentioned in the Pearce-Higgins paper.

4.195 Merlin feed predominantly on passerines. A number of passerine species are identified as exhibiting significantly lower frequencies of occurrence close to the turbines. Therefore, there could be an indirect impact on merlin via a localised reduction in food supply, but this would be highly localised around the turbines or other infrastructure. The avoidance of turbines by wheatear was largely restricted to 200 metres, meadow pipit to within 100 metres and avoidance by skylark was of marginal significance. Of these, only wheatear showed significant avoidance of access tracks, whilst stonechat showed only weak avoidance of transmission lines. This speculative indirect effect would, if it existed, be very small and, it could be argued, would be counterweighed by a potential consequent reduction in collision risk of merlin if reduced prey densities resulted in reduced foraging flight activity by this raptor.

4.196 Scottish Natural Heritage notes that the Royal Society for the Protection of Birds response of 23 June 2006 summarises the merlin information from the environmental statement as: “the consistent absence of merlins in summers of 2002, 2003 and 2004” and as a result concluded that any wind farm impact on populations of this species (at regional, Scottish and UK levels) is unlikely to be important.

Landscape and visual matters

4.197 Scottish Natural Heritage rests on the advice presented in the letters dated 19 August 2005 (the 62 turbine application) and 15 December 2006 (the 48 turbine application). In summary, Scottish Natural Heritage’s objection on landscape and visual


grounds to the Fallago Rig wind farm proposal is made due to the following significant adverse impacts on:

the landscape character of the core of the Lammermuir Plateau, which forms the remaining tract of open and relatively undeveloped uplands within this range, and on the sense of remoteness and relative naturalness experienced when walking within these hills;

the contribution made by the Lammermuir Plateau to the overall landscape character of East Lothian and to a lesser extent the settled valleys of the Borders, where wind farm development would severely diminish the contrast between the settled and developed lowlands and the more open, extensive and naturalistic upland landscape of the central core of the plateau;

impacts on visual amenity, particularly those from East Lothian where the proposed development would extend the extent of turbines visible on the skyline and would be located close to the most prominent central section of the Lammermuir Plateau, which forms a focus in views from the north due to the higher and more distinctive landform associated with Lammer Law; and

cumulative landscape and visual impacts associated with the close proximity of this proposal and existing/consented wind farm developments at Dun Law and Crystal Rig. In particular, multiple wind farm developments on the Lammermuir ridge are likely to be adverse and significant when viewed from within East Lothian where the spread of turbines along the skyline will reduce the present separation between existing, consented and proposed developments.

4.198 The following wind farms would have a cumulative landscape and visual impact with the Fallago Rig proposal:

Crystal Rig Phase 2a is now under construction (previously an application). Dun Law Phase 2 has been constructed (previously consented). Toddleburn is under construction (previously consented). Crystal Rig Phase 2 is under construction (previously consented). Pogbie has been consented (new proposal since previous inquiry). Rowantree is subject of a S.36 application (new proposal). Wester Dod is subject of a planning application (new proposal). Keith Hill has been refused permission on appeal (new proposal).

4.199 The following wind farms would not have major adverse cumulative landscape and visual impacts directly with Fallago Rig. However, they would form part of the increasingly complex wider pattern of wind farm development within the 30 kilometre study area. They would often be experienced in combination or succession with neighbouring, or other wind farms, in the 30 kilometre study area and in sequence with multiple wind farm developments as part of journeys within the study area. The Fallago Rig proposal should be considered in respect of wind farm development in this wider context as well as for the schemes forming the primary focus within the Lammermuir Hills and its fringe area. The wind farms are as follows:

Drone Hill has been consented (previously an application). Carcant is now under construction (previously consented). Long Park (previously known as Halkburn) has been constructed (previously

consented).


Brockholes is subject of a planning application (new proposal since previous inquiry).

4.200 The cumulative effects of wind farms on landscape and visual amenity are a concern. Scottish Natural Heritage supports the intentions of Scottish Planning Policy for close consideration of such effects through the development plan process, which states that when considering cumulative impact, planning authorities should take account of existing wind farms, those which have permission and valid applications for wind farms which have not been determined (paragraph 188). The full text of the Scottish Natural Heritage response letters to all of the wind farm proposals summarised here is contained in SNH Annex 1.

4.201 In relation to wind farms in the western Lammermuirs, Scottish Natural Heritage provided advice on the cumulative landscape and visual impact of the Fallago Rig proposal with Dun Law Phase 1 (constructed), Phase 2 (constructed) and Toddleburn (under construction). This advice remains valid.

4.202 There are a number of wind farms in the western Lammermuirs for which Scottish Natural Heritage has not previously submitted advice on cumulative landscape and visual impacts with the Fallago Rig proposal. These are Rowantree, Pogbie and Keith Hill.

4.203 Rowantree is a new Section 36 application and is a 23 turbine scheme located to the south-east of Toddleburn (1.6 kilometres between the closest turbines). SNH does not intend to object to this scheme. Rowantree is located in the same landscape character type as Dun Law, Toddleburn and Longpark. The nearest proposed turbine is situated approximately 1.5 kilometres to the south of the Toddleburn development. The main cumulative issue relating to the proposed Fallago Rig development concerns the exacerbation of successive, combined and sequential cumulative impacts in relation to the wider context of wind farm development.

4.204 In particular, the Rowantree proposal would potentially increase the extent of visible turbine development on the skyline which, along with Dun Law and Toddleburn, would read as one large cluster. Scottish Natural Heritage does have some concerns about the cumulative impacts arising from wind farm developments in this landscape character type and in this part of the Lammermuir Hills more generally. There is capacity for the landscape to receive this development due to its association with an existing cluster of wind farm developments.

4.205 Pogbie wind farm (consented) is a 6 turbine scheme that would be viewed as an extension to the existing Dun Law 1 and 2 developments. Scottish Natural Heritage did not object to the Pogbie proposal as it would be largely visually associated with other adjacent consented wind farm schemes. Due to its specific location and the choice of turbine height being broadly similar to that of phase 1 and 2 of Dun law, these visual effects would be likely to be appropriate. The additional 6 turbines would add intensity or prominence to the presence of other turbines on the skyline, or infill small gaps, without increasing the lateral array. The scale and visibility of the Pogbie wind farm proposal would be unlikely to have significant cumulative landscape and visual effects.

4.206 Keith Hill (planning application refused on appeal February 2010 was a10 turbine scheme. Scottish Natural Heritage objected to it. The proposal would have significant adverse impacts on the landscape character of the North Lammermuir Platform Landscape


Character Area through a combination of its siting, elevation and turbine height. The Keith Hill proposal would bring turbines closer to the rim of the scarp, thereby intensifying the effect of wind farm development on this landscape, in particular as perceived from the north. It would increase the prominence and apparent visual spread of turbines on the Lammermuir skyline. It would extend the influence of wind farm development further towards the core of the Lammermuir Hills Area of Great Landscape Value, which would adversely impact on the Area of Great Landscape Value’s landscape character and qualities, and on its recreational value. The proposal would have significant adverse cumulative landscape and visual impacts in combination with the consented Dun Law wind farm and the Fallago Rig proposal. The Keith Hill and Fallago proposals each substantially extend the lateral spread of wind farm development along the skyline of the Lammermuirs, and they increase the prominence of this development as viewed form East Lothian. The determining issues in refusing permission on appeal were the landscape and visual impacts of the proposals, including cumulative impacts and the effect on the Lammermuir Hills Area of Great Landscape Value.

4.207 Regarding wind farms in the eastern Lammermuirs, Scottish Natural Heritage provided advice on the cumulative landscape and visual impact of the Fallago Rig proposal with Black Hill and Crystal Rig Phase 1 (both constructed); Crystal Rig Phase 2 and Crystal Rig Phase 2a (both under construction); and Aikengall (consented). This advice remains valid.

4.208 Wester Dod (also known as Aikengall II) is the only wind farm proposal in the western Lammermuirs for which Scottish Natural Heritage has not previously submitted advice on cumulative landscape and visual impacts with the Fallago Rig proposal. This is a planning application to East Lothian Council. The proposal comprises 30 turbines and forms an extension to the existing Aikengall wind farm. Scottish Natural Heritage did not object to this proposal. It would impact significantly on the complex rolling landform on the eastern edge of the Lammermuir Plateau. The construction of the Aikengall 1 wind farm has also extended views of turbines into the eastern and north-eastern foothills and coastal areas of East Lothian, this wind farm having much wider visibility that the existing Crystal Rig wind farm (1 and 2) in these areas. While the Wester Dod proposal would add to the cumulative landscape and visual impacts incurred by existing wind farm development within the study area, it would not make a significant additional contribution to these impacts due to its close association with existing wind farm development at Crystal Rig and Aikengall. There could be some potentially significant adverse effects in association with the proposed Fallago Rig development, where this development would consolidate and extend wind farm development within the eastern Lammermuir Plateau, thus increasing the sensitivity of the relatively undeveloped core of the plateau. There would also be likely to be adverse cumulative effects on views from the minor road between Gifford and Duns where Fallago Rig would make a significant contribution to sequential and simultaneous views of wind farm developments.

4.209 Scottish Natural Heritage gave advice to the first inquiry on a number of other wind farm schemes within a 30 kilometre radius of Fallago Rig. These are Carcant (under construction), Long Park, previously known as Halkburn (constructed), Bowbeat (constructed) and Drone Hill (consented). This advice is still valid.

4.210 Brockholes is the only wind farm proposal elsewhere within a 30 kilometres radius of Fallago Rig for which Scottish Natural Heritage has not previously submitted


advice on cumulative landscape and visual impacts with the Fallago Rig proposal. This is a planning application consisting of a 3 turbine cluster. Scottish Natural Heritage did not object to the proposal. The landscape has a medium capacity to absorb the proposal without significantly increasing cumulative effects already influencing the existing, intrinsic landscape character, composition and quality. Overall, the cumulative landscape and visual effects due to Brockholes wind cluster would be of low to medium significance.

4.211 Strategic Locational Guidance for Onshore Windfarms in Respect of the Natural Heritage: Scottish Natural Heritage Policy Statement No. 02/02 (June 2002) was updated in March 2009. The changes made in that update do not have any significant effect on the Fallago Rig wind farm proposal. The Fallago Rig site is within Zone 2: Medium Natural Heritage Sensitivity of the Strategic Locational Guidance. This document is submitted as SNH Annex 2.

4.212 The Scottish Natural Heritage document Cumulative Effect of Windfarms (version 2: April 2005) is currently under review and will be replaced by Assessing the Cumulative Effects of Onshore Wind Energy Developments (Consultation November 2009),which is for consultation only and is not to be used in the assessment of casework. However, it gives an indication of Scottish Natural Heritage’s current thinking on cumulative effects.

4.213 The Scottish Natural Heritage Guidelines on the Environmental Impacts of Windfarms and Small Scale Hydroelectric Schemes (February 2001) has been superseded by Siting and Designing Windfarms in the Landscape (version 1: December 2009). All of these guidance documents are submitted as SNH Annex 3


Chapter 5

Conditions

5.1 The Heads of Agreement between North British Windpower and the Ministry of Defence (MOD25) is dated 1 July 2009. This contains conditions which it is suggested should be imposed on the section 36 consent to mitigate for the radar interference at Brizlee Wood radar head.

5.2 The conditions for the section 36 consent and the deemed planning permission which were suggested by parties and recommended in the previous report are contained in Appendix 1 of that report. Parties considered these, made a number of changes and additions and submitted an amended version for discussion at the re-opened inquiry. That version contains the section 36 conditions also referred to in the Heads of Agreement (MOD25). North British Windpower and Scottish Borders Council agreed all of the conditions except condition 14B (rights of way and footpaths). Following the close of the inquiry those parties reached agreement on a wording to replace condition 14B, which is reproduced as condition 14 in Appendix 1 to this report.

5.3 The following parties took part in the conditions discussion at the re-opened inquiry: North British Windpower, the Ministry of Defence, Scottish Borders Council, the Joint Community Councils, and Black Mountain Farms. East Lothian Council participated in the first inquiry but decided not to take part in the re-opened inquiry. However, they did make comments on the suggested conditions for the section 36 consent shown in MOD25. The conditions discussion at the re-opened inquiry (and East Lothian Council’s views) are summarised in this chapter.

East Lothian Council’s views

5.4 In a letter to the Directorate for Planning and Environmental Appeals dated 14 December 2009, East Lothian Council explained that it had intended to make a written submission to the inquiry in relation to the suggested conditions. East Lothian Council originally shared the concerns expressed by Scottish Borders Council in a letter dated 12 August 2009 to the Scottish Government Renewable Energy Division.

5.5 These concerns were that the process to bring forward a Radar Mitigation Scheme could result in the turbines being erected prior to the agreement of a final scheme. They would subsequently become operational only once all measures required by the mitigation scheme had been approved and implemented. This created the potential for the adverse visual and landscape effects of erecting a wind farm to occur without any commensurate generation benefits.

5.6 East Lothian Council has reviewed the suggested conditions contained in the report to the previous inquiry and believes that its concerns in this regard are largely alleviated. However, it did raise a related implementation matter. If those turbines that are in line of sight to the radar could not be erected until the mitigation scheme or an alternative scheme is agreed then this still leaves the possibility, if no scheme can be agreed, that only those ten remaining turbines not in line of sight to the radar could be erected and


commissioned. In this eventuality, and in terms of the overall assessment of the development, the balance in favour of renewable generation over adverse landscape and visual impacts may be less persuasive.

Suggested section 36 conditions

5.7 At the conditions discussion Scottish Borders Council suggested an amendment to condition 5 of the section 36 consent. They proposed that the turbines should not be erected until the integration of the Leuchars radar had been completed. The Joint Community Councils supported the council’s position on this matter. In response, North British Windpower pointed out that the Ministry of Defence was content with the condition as originally suggested.

5.8 In relation to condition 5, Black Mountain Farms suggested that the council should be notified of the outcomes of each stage in the condition. North British Windpower had no objection to this suggestion.

Suggested planning conditions

5.9 The condition numbers in this section refer to the numbers of the planning conditions in the version discussed at the inquiry. Parties’ comments are reported below. If a condition is not mentioned here, no party commented on it.

5.10 Condition 2. Black Mountain Farms consider that the phrase “on a commercial basis" needs to be defined. North British Windpower explained that the trigger would be the first output of electricity to the grid. Black Mountain Farms suggested, and Scottish Borders Council agreed, that the planning authority should be notified of the date. North British Windpower agreed to the suggestion.

5.11 Condition 10 Black Mountain Farms pointed out that in the version of this condition contained in the previous report, Black Mountain Farms were to have been consulted along with Scottish Natural Heritage and the Scottish Environment Protection Agency. However, North British Windpower considers it is unusual for a private interest to be consulted in this way. A planning permission is granted in the public interest and the conditions would usually refer to consultation with public bodies. There is no reason why any private third parties should be consulted.

5.12 Black Mountain Farms pointed out that some of the early stage construction works may involve land owned by one of their members. Consultation with adjoining landowners is to be encouraged. North British Windpower agrees that adjoining landowners should be consulted but it is not appropriate for this consultation to be referred to in a condition. Other legal remedies are available to adjoining landowners.

5.13 Scottish Borders Council clarifies that they would be happy to consult any parties but that they do have some concerns about timescale and whether those parties would have a right of veto. Black Mountain Farms did not envisage that they would have a right of veto but would appreciate a right to comment on the Construction Method Statement. They suggest that this could be time-limited to 21 days.


5.14 Scottish Borders Council expressed some disquiet about the last paragraph of condition 10, which refers to enabling works for the construction of the main access track in advance of the approval of the Construction Method Statement. The Joint Community Councils are also concerned about this as the access track is very long and a large part of it is very close to Westruther. North British Windpower points out that the details of the access track construction have to be approved first before they can be implemented.

5.15 Condition 14B There was a long discussion at the inquiry between Scottish Borders Council and North British Windpower about this condition. It was eventually agreed that this discussion would continue after the close of the inquiry. The form of words reproduced at condition 14 in Appendix 1 of this report was subsequently agreed by the council and the applicant.

5.16 Condition 21 The Joint Community Councils asked whether John Dippie’s Well was included in the archaeological features to be protected by fencing during construction works under this condition. North British Windpower agreed to check. After the close of the inquiry North British Windpower confirmed that John Dippie's Well is not included in the numbered features referred to in this condition. The well is located at NT 646 559 and bears an inscription ‘Erected in 1898’. At this point, where the proposed access track would cross the Watch Water, it would diverge significantly west of the Southern Upland Way and the location of the well (see ES Figure 5.2, left-hand panel). North British Windpower does not, therefore, consider that there should be any need for fencing under this condition. This has been discussed with Scottish Borders Council which does not have any view to offer on this matter either way.

5.17 Condition 23 Scottish Borders Council queried whether this condition should also refer to the enabling works. North British Windpower pointed out that the condition states “prior to the commencement of the development”. There is no exception for the enabling works, unlike condition 10. Scottish Borders Council confirmed that it was content with the condition as suggested.

5.18 Conditions 24-27 Black Mountain Farms pointed out that the ecological monitoring could have impacts on land outwith the application site. Black Mountain Farms should therefore be consulted. This consultation could be defined as the right to comment and within a specified time period. North British Windpower explained that if private rights were affected by any form of development, that was a private matter separate from the planning system.

5.19 Condition 28 Black Mountain Farms consider the requirement for a restoration bond should be a matter for a legal agreement under section 75 of the Town and Country Planning (Scotland) Act 1997. North British Windpower disagrees and considers the condition to be satisfactory, pointing out that the guidance does not require an agreement.


Chapter 6

Findings of fact

6.1 This chapter should be read in parallel with Chapter 5: Findings of Fact in the previous report. I make it clear under the various sub headings where new findings of fact in this chapter supersede or modify those in Chapter 5 of the previous report. I also state where the findings of fact in the previous report remain unchanged.

6.2 In this chapter I have adopted a very similar structure to Chapter 5 of the previous report. I have changed the sub heading ‘The development plan and the finalised draft local plan’ to ‘The development plan’, as the finalised draft local plan has now been adopted. I have changed ‘Conditions and proposed legal agreement’ to ‘Conditions’, as no legal agreement is proposed. The issue of the alleged unauthorised works has been dealt with under the ‘Conditions’ sub heading.

Factual background

6.3 I incorporate paragraphs 1.1 – 1.69 of the previous report, unless superseded by information in Chapter 1 of the current report. Matters covered by Chapter 1 of the previous report and Chapter 1 of the current report are as follows: the environmental information submitted; the application site; the proposed development; statutory provisions; energy policy; national planning policy and advice; aviation policies and guidance; development plan policies; emerging local plan policies; Scottish Borders Council’s consideration of the application and consultation responses, including those to the 2010 Supplementary Environmental Information. Paragraph 5.2 of the previous report is superseded by this paragraph.

Legal and procedural matters

6.4 Paragraphs 5.3-5.6 of the previous report remain unchanged. In relation to paragraph 5.7, this remains unchanged, apart from an addition of a reference to the 2010 Supplementary Environmental Information as referred to in paragraph 1.2 of the current report.

Energy policy

6.5 The Climate Change Act 2008 sets a target to ensure that the net UK carbon account for 2050 is at least 80% lower than the 1990 baseline.

6.6 Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources commits the European Union to achieving a reduction in greenhouse gas emissions of 20% by 2020 compared to 1990 levels. The package includes a binding renewables target of 20%. The UK’s share of this target is to deliver 15% renewable energy by 2020.

6.7 The UK Low Carbon Transition Plan 2009 White Paper includes an intention to produce 30% of the UK’s electricity by renewable means by 2020. This compares to a UK


target of 10% generation of electricity by renewables by 2010 and an aspirational target of 20% by 2020, which were the targets at the previous inquiry in February 2008 (paragraph 5.8 of the previous report).

6.8 The UK Renewable Energy Strategy July 2009 confirms the 15% renewable energy by 2020 target. It explains that the precise breakdown of the target between technologies will depend on how investors respond to the incentives put in place. However, renewables could provide more than 30% of UK electricity compared to around 5.5% in July 2009. The strategy envisages that more than two thirds of that could come from on and offshore wind, but there could also be important contributions from hydro, sustainable bioenergy, marine sources and small scale technology.

6.9 The Climate Change (Scotland) Act 2009 sets a target for reduction in greenhouse gas emissions for 2050 and an interim target for 2020. The 2050 target is to ensure that emissions for that year are at least 80% lower than the baseline. The interim target for 2020 is to ensure that emissions are at least 42% lower than the baseline.

6.10 The Scottish Government Climate Change Delivery Plan 2009 identifies the measures required to meet the interim target for 2020 and the work to be done to prepare for the more radical changes needed by 2030 if the emissions target for 2050 is to be achieved. Amongst other things, the Scottish Government is working towards a largely decarbonised electricity generation sector by 2030, primarily using renewable sources for electricity generation, with fossil fuelled plants using carbon capture and storage.

6.11 The Scottish Government Renewables Action Plan 2009 explains that Scotland is currently committed to achieve a headline target of 20% of total Scottish energy use coming from renewable sources by 2020. For electricity, the target is to achieve 50% of gross electricity consumption from renewable sources by 2020, with an interim target of 31% by 2011. These targets are the same as they were at the previous inquiry (paragraph 5.9 of the previous report). The plan indicates that 20.1% of electricity consumption from renewables was achieved by June 2009.

6.12 The plan states that there will be a continued expansion of the portfolio of onshore wind farms to help meet the renewables target, with a robust planning framework supporting timely processing of consents applications and ensuring wind farms are consented where they are environmentally acceptable. The plan also considers other types of renewable energy generation, but I do not consider that the mix of technologies described in the plan means that less attention must be paid to onshore wind.

6.13 SPP 6 – Renewable Energy has been superseded by the consolidated Scottish Planning Policy (SPP). It confirms the target of 50% of Scotland’s electricity to be generated from renewable sources by 2020, stating that the target is not a cap. Hydro-electric and onshore wind power are currently the main sources of renewable energy supplies and the SPP expects this to continue, but as part of a wider renewable mix, as other technologies become commercially viable. The SPP states that existing and approved grid capacity should be maximised wherever possible.

6.14 Energy is not a devolved matter so, although Scotland has its own targets, it also contributes towards the UK targets. The Climate Change Act 2008 and the Climate Change (Scotland) Act 2009 set legally binding targets on reduction in greenhouse gas


emissions, which is an important difference since the previous inquiry. The UK target for the generation of electricity from renewable sources has increased from 20% by 2020 (aspirational target) to 30% (expressed intention). The raft of additional legislation and policy statements from the UK and Scottish Governments and the increased UK Government intention outlined above is indicative of increased support for renewable generation of electricity compared to February 2008. It is also the case that whatever the targets are, they are not to be regarded as a cap.

6.15 Around 5.5% of UK electricity was produced from renewable sources in July 2009 and 20.1% of Scotland’s electricity consumption from renewables was achieved by June 2009. It is apparent that there is some way to go to achieve the UK expressed intention (30% by 2020) and the interim target in Scotland (31% by 2011).

6.16 Paragraphs 5.8, 5.9 and 5.11 of the previous report are superseded by the above findings.

6.17 Paragraph 5.10 of the previous report remains unchanged.

Landscape and visual issues

6.18 Paragraphs 5.12 and 5.13 of the previous report remain unchanged.

Visual assessment


6.20 Black Mountain Farms drew my attention to the recent Scottish Natural Heritage publication ‘Siting and Designing Windfarms in the Landscape’, in particular to footnote 13 on page 20 and paragraph 4.20 (SNH Annex 3.2). Footnote 13 states that a study in 2002 for the University of Newcastle suggested that for turbines of 100 metres or more the distances used in PAN 45 should be increased by 20%. Paragraph 4.20 states that the PAN 45 distance guidelines are limited in their application because:

it is unclear what height of turbine these distances were based upon; and because visual impacts are not directly proportional to distance, as the nature of a

view (for example, a framed/open view or backclothed/skyline view) and its context are as important as the size of a development within that view.

6.21 If the PAN 45 distances were to be increased by 20%, the table at paragraph 78, Figure 8 would read as follows (PAN 45 figures in brackets):

Up to 2.4 (2) kilometres Likely to be a prominent feature2.4 – 6 (2-5) kilometres Relatively prominent6 – 18 (5-15) kilometres Only prominent in clear visibility

- seen as part of the wider landscape18-36 (15-30) kilometres Only seen in very clear visibility

- a minor element in the landscape

6.22 Paragraph 5.14 of the previous report described the 11 East Lothian viewpoints in the environmental statement and the supplementary environmental information.


Paragraph 5.15 details which PAN 45 perception distance category they fall under, explaining that one lies within the ‘Relatively prominent’ category; four within the category ‘Only prominent in clear visibility - seen as part of the wider landscape’; and six within the category ‘Only seen in very clear visibility - a minor element in the landscape’.

6.23 Applying the 20% increased distances results in viewpoint 6 (Priestlaw Hill) moving from ‘Only prominent….’ to ‘Relatively prominent’; and viewpoints 13, 15 and 16 (A6093 road between Pencaitland and Haddington, Pencaitland, Hopetoun Monument) moving from ‘Only seen….’ to ‘Only prominent….’. Therefore, two East Lothian viewpoints would lie within ‘Relatively prominent’; six within ‘Only prominent….’; and three within ‘Only seen….’. The perceived visual impact of the proposed wind farm when viewed from East Lothian would therefore be increased compared with PAN 45 Figure 8 distances.

6.24 However, the findings reached in the second part of paragraph 5.15 remain the same: it is the case that the visibility of the wind farm from most of the East Lothian viewpoints would be restricted. There would only be a small part of the whole wind farm visible and, where turbines were visible, only a few turbine hubs would be seen. This applies particularly to settlements in East Lothian, as acknowledged by East Lothian Council in paragraph 3.49 of the previous report. I also note that Scottish Borders Council acknowledges that the degree to which the original Crystal Rig wind farm would be screened by the lip of the north Lammermuir escarpment is indeed notable and the wind farm would hardly be visible from outwith the hills (paragraph 1.149 above).

6.25 Siting and Designing Windfarms in the Landscape 2009 (SNH Annex 3-2) supersedes the landscape sections of the previous Scottish Natural Heritage document Guidelines on the Environmental Impacts of Windfarms and Small Scale Hydroelectric Schemes 2001 (NBW45 and SNH5.3, previous inquiry). It seems to me that the PAN 45 Figure 8 distances were taken from paragraph 2.3.3 of the original Scottish Natural Heritage document, which was published in February 2001. PAN 45 was published almost a year later in January 2002 and refers to exactly the same perception distances. The 2001 document explains that “currently turbines range between 30m and 70m in tower height with rotors adding a further 15-20m on top of this” (paragraph 2.2.1, NBW45 and SNH5.3). Therefore, turbine sizes at that time ranged between 45 metres and 90 metres to blade tip. I do not understand, therefore, why the 2009 Scottish Natural Heritage publication states that it is not clear what turbine heights the PAN 45 Figure 8 distances are based on.

6.26 However, it is apparent that, at 125 metres high to blade tip, most of the proposed Fallago Rig turbines would be over a third as high again as the highest turbines considered in the 2001 Scottish Natural Heritage publication. Some of the wind farms that have already been constructed in the area also have 125 metre high turbines (Aikengall, some of the Crystal Rig 2 and some of the Toddleburn turbines). It is possible to look at these wind farms from specific viewpoints and decide whether the PAN 45 perception distances are still applicable to turbines of this size.

6.27 For example, from viewpoint 5, Twin Law Cairns, Aikengall wind farm is 15 kilometres and Crystal Rig 2 is 12 kilometres away, within the PAN 45 ‘Only prominent….’ category. Toddleburn is further away at 17 kilometres, within the ‘Only seen….’ category. However, Toddleburn is much more prominent from this viewpoint than Aikengall and Crystal Rig 2. Indeed, even Halkburn, with smaller turbines (100 metres high) and at a greater distance (19 kilometres) is more prominent than Aikengall and Crystal Rig 2.


6.28 It seems to me that the differences in the perceived prominence of these wind farms are because both Aikengall and Crystal Rig 2 are seen against the sky from Twin Law Cairns, and the light grey colour of the turbines does not stand out. In contrast, both Toddleburn and Halkburn are seen against the darker background of the land, which means that the light grey turbines are more noticeable, despite being further away and, in Halkburn’s case, smaller.

6.29 The comment in paragraph 4.20 of the 2009 Scottish Natural Heritage publication that visual impacts are not directly proportional to distance, as the nature of a view (for example, a framed/open view or backclothed/skyline view) and its context are as important as the size of a development within that view is, therefore, borne out by my experience of existing wind farms in the Lammermuirs.

6.30 Nevertheless, given my findings in the later part of paragraph 5.15 of the previous report, repeated above at 6.24, and the fact that from most of the East Lothian viewpoints, the Fallago Rig turbines, or parts of turbines, would be viewed against the sky, meaning that they would tend to be less noticeable than if they were seen against darker land, I consider that the visual impact of Fallago Rig on East Lothian would not be significant. This is the same as the finding reached at the end of paragraph 5.15 of the previous report.

6.31 I note the points made about the PAN 45 distance categories by the 2009 Scottish Natural Heritage publication. Nevertheless, until it is superseded, PAN 45 remains Scottish Government planning advice. Paragraph 5.15 of the previous report therefore remains unchanged, although the findings above in relation to the visual impact on East Lothian also apply.


6.33 In relation to the findings at 5.17 of the previous report, I note that Black Mountain Farms’ landscape witness considers that Figure 2.3 of the 2006 Supplementary Environmental Information exaggerates the shallow bowl shape of the landform at the Fallago Rig site. However, I have had regard to the contours shown on the Ordnance Survey Explorer Map number 345, which clearly show this effect. The shallow bowl effect can also be seen in the contours on the maps reproduced at Figures 5.1, 5.6 and 5.14 of the 2005 environmental statement and Figures 2.1 and 2.2 of the 2006 Supplementary Environmental Information. I also note that Scottish Borders Council agrees that the Fallago Rig wind farm would be located within a bowl (paragraph 4.149 above). Paragraph 5.17 of the previous report, therefore, remains unchanged.

6.34 With regard to the findings at paragraph 5.18 of the previous report, the Scottish Natural Heritage publication Siting and Designing Windfarms in the Landscape, 2009, supersedes the landscape sections of the previous Scottish Natural Heritage document Guidelines on the Environmental Impacts of Windfarms and Small Scale Hydroelectric Schemes, 2001. The 2009 document does not refer to the limits to mid ground visibility resulting from siting a wind farm on convex slopes. Nevertheless, it is still the case that convex slopes such as those found on the northern edge of the Lammermuirs would limit the visibility of the Fallago Rig wind farm.


6.35 The 2009 publication refers to opportunities to take advantage of the landform to limit visibility of wind turbines and site infrastructure (paragraph 4.30). It states that when sited on hill ridges, turbines may be set back from the edge and placed such that the slopes preclude visibility from below, even if they may be clearly visible from adjacent hills. This would be the situation at Fallago Rig with regard to views from the north.

6.36 Apart from the reference to the 2001 Scottish Natural Heritage guidelines, which is superseded by the 2009 publication as explained above, paragraph 5.18 remains unchanged.


6.38 The findings at paragraphs 5.14-5.20 of the previous report are amended and added to by the findings in this section. In relation to the visual impact of the proposed Fallago Rig wind farm alone, I find again that it would not be significant. Paragraph 5.21 of the previous report is, therefore, restated here.

Landscape assessment

6.39 The 2009 Scottish Natural Heritage guidance explains that Scottish Natural Heritage supports the adoption of renewable energy, including wind farms, and supports Scottish Government adopted policy, which at that time was SPP 6. It advises that support for renewables has to be balanced with the Scottish Government’s commitments and aspirations to conserve and enhance the natural heritage, including the quality and diversity of Scotland’s landscapes. PAN 45 refers to the variety of Scotland’s landscapes and notes that some will be able to accommodate wind farms more easily than others, on account of their landform and relief and the ability to limit visibility. This paragraph supersedes paragraph 5.22 of the previous report.

6.40 Paragraphs 5.23 – 5.26 and 5.28 of the previous report remain unchanged. Apart from the reference to the finalised development plan, which should be deleted, paragraph 5.27 remains unchanged.

6.41 The Scottish Planning Policy explains that the level of protection given to local designations through the development plan should not be as high as the level of protection given to international or national designations (paragraph 139). This finding adds to paragraph 5.29 of the previous report.


6.43 The 2009 Scottish Natural Heritage guidance observes that there is likely to be continued demand for renewable energy in Scotland for many decades ahead. Thus it is possible that existing well-designed wind farms may remain in use well beyond 25 years, with turbines either refurbished or replaced and a planning consent renewed. However, a time limited consent does provide the opportunity for decommissioning to be required should it be judged, for whatever reason, that the wind farm development was inappropriate. This finding adds to paragraph 5.31 of the previous report.

6.44 The findings at paragraphs 5.22-5.32 of the previous report are amended and added to by the findings in this section. In relation to the effect of the proposed Fallago Rig


wind farm alone on the landscape character of the Lammermuirs , I find again that although it would be significant, it would be acceptable. Paragraph 5.32 of the previous report is, therefore, restated here.

Cumulative landscape and visual impacts

6.45 The Joint Community Councils consider that the 2010 Supplementary Environmental Information considerably understates the number of wind farms that could be built within the local area, as it does not include the wind farms that are at scoping stage. However, Scottish Planning Policy states that when considering cumulative impact, planning authorities should take account of existing wind farms, those which have permission and valid applications for wind farms which have not been determined.

6.46 I do not agree with the Joint Community Councils’ interpretation that North British Windpower’s assessment of cumulative impact should have included those schemes at scoping stage. One of the purposes of scoping is to allow a potential developer to consider whether there are realistic prospects that a development could be consented. The scoping process may reveal an insurmountable obstacle. In addition, even if a developer decided to progress a scheme, the results of the scoping exercise could result in considerable changes to the form of the proposed development. I conclude that the assessment of cumulative impact in North British Windpower’s 2010 Supplementary Environmental Information, which refers to the existing and potential wind farms at application stage in the area, is correct.

6.47 The assessment in the Supplementary Environmental Information 2010 reveals that an additional 84 turbines in five proposed wind farm schemes are now proposed in comparison to the assessment made for the 2008 inquiry. (The Keith Hill proposal, which is also included in the 2010 assessment, has since been refused on appeal). They are:

Drone Hill– 22 turbines, 76 metres to blade tip (consent); Pogbie – 6 turbines, 76 metres to blade tip (consent); Wester Dod (Aikengall 2) – 30 turbines, 14 metres to blade tip (application); Rowantree – 23 turbines, 125 metres to blade tip (application); and Brockholes –3 turbines, 84 metres to blade tip (application).

6.48 However, none of these proposed wind farms are in locations which are closer to Fallago Rig than the wind farm schemes considered at the 2008 inquiry. Drone Hill is approximately 25 kilometres to the east north east, east of Coldingham; Pogbie is about 11 kilometres to the west, also to the west of Dun Law 1 and 2; Wester Dod is about 13 kilometres to the north east, adjoining and to the south east of Aikengall wind farm; Rowantree is about 13 kilometres to the south west, to the south of Toddleburn wind farm; and Brockholes is approximately 22 kilometres to the east, near Grantshouse. Consequently, even if approved, none of these schemes would reduce the separation distances between Fallago Rig and the wind farms which were considered at the previous inquiry. For this reason, I do not consider that they would significantly exacerbate the cumulative landscape and visual impacts that were considered in 2008. In reaching this conclusion, I note that Scottish Borders Council also considers that the expansion of wind farms in the east and west of the Lammermuirs since the first inquiry does not significantly increase the cumulative landscape impacts on the Central Lammermuirs that would result from Fallago Rig (paragraph 4.152 above).


6.49 North British Windpower provided a number of visualisations to assist in envisaging what the proposed Fallago Rig wind farm would look like, both alone and in relation to existing and proposed wind farms in the local area. These were provided in the original environmental statement and in Supplementary Environmental Information for the original and re-opened inquiries. They comprise photographs of the existing view, wireframes showing existing and proposed wind farms, including Fallago Rig, and photomontages showing Fallago Rig and other wind farms superimposed on the photographs of the views.

6.50 The photographs and photomontages in the 2010 Supplementary Environmental Information are labelled ‘February 2010’. However, despite the label, the base photographs are the same as those that were produced for the 2008 inquiry and were actually taken in 2007. New photographs were not taken for the 2010 Supplementary Environmental Information. North British Windpower admitted (but did not apologise for) this error in labelling.

6.51 The Joint Community Councils were very critical that the 2008 photographs were used in the 2010 photomontages, considering that these are misleading because of the large number of turbines now present in the landscape compared to 2008. However, I accept North British Windpower’s landscape witness’ explanation that, as the 2010 Supplementary Environmental Information had to be prepared over the winter months, photographs taken then would not have met the strict guidelines on visualisations. I also agree that the wireframes are more useful than the photomontages and it is the wireframes that should be relied on. In any event, all parties are agreed that the visualisations should not be looked at by themselves. They have to be used in association with visits to the various viewpoints.

6.52 Black Mountain Farms’ landscape witness considers that computer aided visualisations can never match what is seen on the ground. The impact of Fallago Rig and other wind farm developments therefore requires a fresh assessment based on what is built. I confirm that I visited the viewpoints in 2008 and again in 2010. I am therefore well aware of how the views have changed between 2008 and 2010. I also examined the wireframes available in 2008 and compared them with the actual views, where the turbines that have been erected since 2008 can now be seen.

6.53 For example, from viewpoint 5, Twin Law Cairns, I found the wireframe representation of the Crystal Rig group, including Aikengall, to be a reasonably realistic portrayal of how the wind farms appear in real life, as are the wireframes of Halkburn and Toddleburn. It is important, however, to ensure that the wireframe image is viewed at the correct distance (24.8 centimetres). If it is held further away, the wire frames give the misleading impression that the wind farms would be less prominent than they are in reality.

6.54 If anything, I found that the wireframes over-emphasised the prominence of some wind farms, particularly those at greater distances or with smaller turbines. From Twin Law Cairns, the wireframe shows that Dun Law 1 and 2 would be clearly seen. However, in reality I found these wind farms very difficult to see, because of their comparatively small turbines (67.5 and 75 metres high) and because they are seen against the sky. I experienced a similar situation for Dun Law 1 and 2 from viewpoint 13. The Crystal Rig group, Carcant and Bowbeat are also shown on the wireframe from viewpoint 13, albeit


almost as coloured dots, but in reality they could only be seen through binoculars, not with the naked eye.

6.55 It is apparent from the cumulative visualisations that Fallago Rig would add to the number of turbines seen from various points in East Lothian. However, because of the distances involved and the limited visibility of the turbines at Fallago Rig, and indeed the limited visibility and the distances involved to turbines in other wind farms, I consider that the cumulative visual impacts of the proposed development on East Lothian would not be significant. Paragraph 5.33 is superseded by this paragraph.


6.57 In relation to the findings at paragraph 5.35 of the previous report, Black Mountain Farms drew my attention to the Core Paths Plans now published by Scottish Borders Council and East Lothian Council. I agree that the existence of these plans may increase the number of walkers using the paths promoted in them, which includes paths in the vicinity of the Fallago Rig wind farm site. I note that in the two years ending in 2009, an average of 2,424 visitors each year was recorded walking along the Southern Upland Way. This continues the trend of relatively low numbers of receptors identified in paragraph 5.35 of the previous report (2,300), which is added to by the findings in this paragraph.

6.58 The findings at paragraphs 5.33-5.36 of the previous report are amended and added to by the findings in this section. In relation to the cumulative landscape and visual impacts of the proposed wind farm within the Lammermuirs, I find again that it would be significant. Paragraph 5.36 of the previous report is, therefore, restated here.

Radar issues

6.59 At the time of the previous inquiry in February 2008, the Ministry of Defence objected to the proposed wind farm at Fallago Rig because of its impact on the Brizlee Wood Air Defence Radar. My original findings of fact on this issue are contained at paragraphs 5.37 – 5.61 of the previous report. Amongst other things, I concluded that there would be an obscuration effect overhead the Fallago Rig wind farm (paragraph 5.53) and that this obscuration effect, particularly in combination with other wind farms in the area, would have an impact on national security (paragraph 5.54).

6.60 The situation has now changed. The letter dated 1 July 2009 from Defence Estates on behalf of the Ministry of Defence to the Scottish Government Renewable Energy Division (MOD24) explains that the Ministry of Defence can now withdraw its objection. The withdrawal is conditional upon the section 36 consent being subject to an appropriate aviation condition and the requirement that the applicant enters into a legal agreement with the Ministry of Defence regarding an agreed Radar Mitigation Scheme.

6.61 All parties to the inquiry are agreed that the Ministry of Defence is the body which is responsible for the air defence of the United Kingdom. The Ministry of Defence witness at the inquiry in April 2010 was the only witness at the re-convened inquiry with qualifications and experience in air defence radar. He holds a very senior position in the RAF with responsibility for leading the Ministry of Defence’s development efforts on the Aviation Advisory Panel, set up in order to overcome the issues presented to the aviation


industry by the development of wind farms. Consequently, I place great weight on his evidence.

6.62 Evidence from the Ministry of Defence is that there are now known to be a number of technical solutions which can mitigate the impacts of wind turbines on air defence radar. These are:

technical modifications to current air defence radars; the integration of additional radars into the UK Air Defence Ground Environment

Command and Control System (UCCS); and the provision of additional radar data from NATS En Route Limited to the UCCS.

6.63 Of these, the Ministry of Defence considers that the integration of an additional radar (the air traffic control radar at RAF Leuchars) into the UCCS would be the most appropriate mitigation for Fallago Rig.

6.64 The discussions that took place between the Ministry of Defence and North British Windpower and which led to the 1 July 2009 letter were held in the context of the Memorandum of Understanding, signed by various aviation radar and wind turbine interested parties on 11 June 2008 (NBW7). The memorandum states that the various parties are working together to mitigate the impacts of wind turbines on aviation radar. As explained in paragraph 1 of the Memorandum of Understanding, it was itself a response to the European Union Directive 2009/28/EC (MOD21) and the target of 20% of energy use from renewable sources adopted by the European Union.

6.65 Since the last inquiry, and in the context of the Memorandum of Understanding, two studies have been commissioned into possible mitigation of the effects of wind turbines on air defence radar. These are the Additional Radar Study and the Air Traffic Control Radar Data Transport Study.

6.66 The Additional Radar Study investigated how the UCCS could be enhanced to take extra feeds from Air Traffic Control and other types of radars for wind farm mitigation. It was commissioned in September 2009 and reported in March 2010. The report indicates that this type of mitigation solution is technically feasible. The full report is classified and the unclassified summary of this study was not available to the re-opened inquiry.

6.67 The Air Traffic Control Radar Data Transport Study is to advise what changes need to be made to Ministry of Defence-owned Air Traffic Control radars, to identify how to establish the communications links to the UCCS and to investigate the types of support arrangements required throughout the life of the additional infrastructure. This study has begun and was expected to report in June/July 2010. The work done at the time of the re-opened inquiry had given sufficient understanding to indicate that the matters under investigation would not be likely to cause a difficulty for the integration. When complete, the report will be classified.

6.68 The Ministry of Defence witness indicated that the timescale for integration has been pushed back to 2013 but that he had a high level of confidence that it would be delivered within that timescale.


6.69 Objectors were critical that neither of these studies was available for the re-convened inquiry. However, the detailed reports of both studies are classified and could not be made available in any event. Only the unclassified summary of the Additional Radar Study could potentially have been made available. However, evidence on both studies was given by the Ministry of Defence witness. No party alleged, and I have no reason to believe, that the Ministry of Defence witness was misleading the inquiry when he gave evidence about these studies. I consider that his evidence about them is sufficient for the purposes of the inquiry and this report.

6.70 The mitigation proposed for the Fallago Rig wind farm would not reduce the impact of the proposed wind farm on the Brizlee Wood radar head. Instead, the proposal is to compensate for that impact by providing radar coverage from a radar system (at RAF Leuchars) that would not suffer interference from Fallago Rig. The Ministry of Defence is satisfied that the integration of the infill radar from RAF Leuchars would result in a sufficiently complete recognised air picture for operational purposes.

6.71 North British Windpower and the Ministry of Defence have signed a Heads of Agreement (MOD25). Amongst other things, this contains an aviation condition which both parties propose should be attached to a section 36 for Fallago Rig. The condition states that no turbine shall be erected on the Fallago Rig site unless a Radar Mitigation Scheme has been approved. No turbine shall thereafter become operational until the integration of RAF Leuchars, as specified in the mitigation scheme, has been carried out.

6.72 The Radar Mitigation Scheme would set out the following matters:

the steps required to integrate the RAF Leuchars air traffic control radar into the UCCS. The integration would be completed before any of the turbines became operational;

If the Aviation Specification is not met through the integration, North British Windpower has to promote a further scheme of mitigation;

If the further scheme of mitigation did not satisfy the Aviation Specification, North British Windpower has to make a payment to the Ministry of Defence to be put towards its own radar mitigation scheme; and

North British Windpower would be required to lodge a bond or other security with its financial obligations in terms of the Radar Mitigation Scheme.

6.73 The Aviation Specification referred to in the Heads of Agreement is the volume of airspace within which the Ministry of Defence can accept some degradation of radar performance. The Ministry of Defence cannot explain the details of the Aviation Specification, as this information is classified. However, the requirements are based on the nature of the threat and the likely impact of the reduction in radar coverage within the Aviation Specification volume. Outside this volume, radar coverage would be assured by the mitigation provided by the developer, which, in the case of Fallago Rig, would be the integration of the RAF Leuchars radar.

6.74 The Ministry of Defence expects that existing wind farms would also be mitigated by the integration of RAF Leuchars, which would be an additional benefit.

6.75 In the previous report I found that it would be unreasonable to attach the suspensive condition which was suggested by North British Windpower at the first inquiry to


a possible section 36 consent for Fallago Rig (paragraph 5.57). This was because there was no possible mitigation of the effects on the Brizlee Wood radar at that time. A consent with a suspensive condition may not , therefore, have been implemented in its lifetime. This would have caused uncertainty to neighbours and possibly resulted in the exclusion of an otherwise acceptable wind farm scheme on another site.

6.76 At the first inquiry, North British Windpower drew my attention to the consent which had been granted for the Clyde wind farm. This consent was subject to a suspensive condition regarding a mitigation scheme for civilian radar. I concluded that the two cases were different because, at that time, the Ministry of Defence maintained its objection to the Fallago Rig proposal, whereas NATS En-Route Ltd had withdrawn its objection to the Clyde wind farm (paragraph 5.58).

6.77 When the inquiry re-convened, both the Ministry of Defence and North British Windpower drew my attention to a number of wind farm consents and planning permissions which had been granted with suspensive aviation conditions, including for the Clyde wind farm. The conditional withdrawal of the Ministry of Defence’s objection to Fallago Rig means that the circumstances are now similar to those for the Clyde proposal.

6.78 Objectors are concerned at the possibility that the turbines could be erected but may not be operational for some time, or indeed, ever. However, evidence from the Ministry of Defence is that the integration of RAF Leuchars is technically feasible and also that it is highly likely that it would be achieved by 2013. This timescale is not unreasonably lengthy.

6.79 When the integration is achieved, the turbines may become operational. Only then would the Ministry of Defence be able to tell whether the Aviation Specification has been met. If it is found not to have been, the turbines would not have to stop generating but North British Windpower would have to promote an alternative mitigation scheme. If that in turn did not achieve the Aviation Specification, North British Windpower would have to pay a sum of money to the Ministry of Defence (up to £1 million) to develop its own mitigation.

6.80 I have pointed out above that all parties are agreed that it is the Ministry of Defence that is responsible for the air defence of the United Kingdom. I have also found that the Ministry of Defence is confident that integration would achieve the required mitigation and result in a satisfactory recognised air picture for operational purposes. However, the Ministry of Defence is willing to accept the small risk that the integration might not be successful and would not achieve the required results. In that eventuality, there are other possible methods of mitigation that could be pursued at the applicant’s expense.

6.81 In my previous report, I found that conditions covering the concerns raised by the Ministry of Defence at that time should be imposed on the section 36 consent rather than the deemed planning permission, as the matters which they were intended to address are matters of national importance (paragraph 5.86 of the previous report). At the re-opened inquiry, parties agreed with that approach.

6.82 Planning witnesses for North British Windpower and Black Mountain Farms considered that the proposed aviation condition, which would be attached to the section 36 consent, should be tested against Circular 4/1998 – The Use of Conditions in Planning Permissions. Counsel for the Ministry of Defence disagreed and stated that the circular is


applicable only to the conditions to be attached to the deemed planning permission. She believes that the advice on suspensive conditions given by the Scottish Government Renewable Energy Division and reproduced in Appendix 1 of Annex 2 to PAN 45 is more pertinent.

6.83 In brief, that advice is as follows:

suspensive conditions need to provide specification of the nature and extent of the mitigation measures required;

there must be clarity about the identification of the type of solution/s to be developed; and

there must be agreement between the developer and the relevant operator that such a solution can be delivered in a reasonable timeframe.

6.84 I do not consider that the terms of Circular 4/1998, which after all is titled ‘The Use of Conditions in Planning Permissions’, are applicable to conditions to be attached to a consent under section 36 of the Electricity Act 1989. I agree with the submissions made in this regard by counsel for the Ministry of Defence. I have considered the suggested suspensive condition proposed by North British Windpower and the Ministry of Defence. I consider that, with some alteration as explained below, it would comply with the advice at Appendix 1, Annex 2 to PAN 45.

6.85 I conclude that the imposition of a suspensive condition to prevent erection of the turbines until a Radar Mitigation Scheme had been approved and thereafter to prevent operation of the turbines until the integration of RAF Leuchar into the UCCS had been completed would be reasonable in the changed circumstances of this case.

6.86 I have described the developments in energy policy above at paragraphs 6.5 to 6.17. In addition, the Memorandum of Understanding, the Heads of Agreement, the two radar studies described by the Ministry of Defence witness are all matters that have arisen since the original inquiry in February 2008. Consequently, I do not agree with assertions made by objectors that there are no new matters on radar issues to justify a different conclusion on the radar impact of the Fallago Rig wind farm on air defence radar systems.

6.87 Paragraphs 5.37-5.61 of the previous report are superseded by the paragraphs in this section.

Habitats, peat, ecology, ornithology and fisheries

6.88 Scottish Natural Heritage does not consider that the results published in the Pearce-Higgins paper should lead to an updated assessment of the likely effects on upland birds for the Fallago Rig wind farm proposal. The information contained in the Pearce-Higgins paper does not alter Scottish Natural Heritage’s previously stated position on birds for the proposed wind farm.

6.89 Scottish Natural Heritage is the Scottish Government’s advisor on natural heritage matters. Consequently, in the light of the advice referred to above, I have no reason to change the findings in paragraph 5.62 of the previous report, which remains unchanged.


Cultural heritage

6.90 Paragraphs 5.63-5.65 of the previous report remain unchanged.

6.91 Paragraph 5.66 of the previous report referred to NPPG 5 – Archaeology and Planning and NPPG 18 – Planning and the Historic Environment, which were the Scottish Government policy documents extant at that time. Those documents are now superseded by the Scottish Planning Policy. Nevertheless, the findings in paragraph 5.66 remain unchanged, although the paragraph should now refer to the Scottish Planning Policy rather than NPPGs 5 and 18.

6.92 I find that, between them, the suggested planning conditions 21 and 22 in Appendix 1 of this report would safeguard existing known archaeological features and ensure that any unforeseen features which may be disturbed during construction are recorded. Paragraph 5.67 of the previous report is superseded by this paragraph.

Tourism


6.94 The Joint Community Councils made further representations on what they alleged to be a reduction in tourism in the area resulting from the number of turbines that had been erected in the Lammermuirs since the 2008 inquiry. However, this comprised no more than anecdotal information, which is not sufficient to alter the findings at paragraph 5.68 of my previous report.

Estate management

6.95 The Duke of Northumberland for Black Mountain Farms referred to clients potentially reconsidering their commitment to shooting in the Lammermuirs as a result of the increased numbers of turbines that had been constructed since 2008. Again, this anecdotal evidence is not sufficient to alter the findings found in paragraphs 5.69-5.71 of the previous report, which remain unchanged.

The development plan


6.97 In relation to policy N11, I have assessed the landscape and visual impact of the proposed development alone as acceptable (findings of fact at paragraphs 5.14-5.32 of the previous report, as amended and added to by my findings of fact at paragraphs 6.19 to 6.44 above). However, because of my findings that the proposed development would have a significant cumulative landscape and visual impact, I consider that it would not comply with policy N11. I note that the policy allows proposals which would have an adverse impact on the Area of Great Landscape Value where the impact is outweighed by social or economic benefits of national or local importance. However, I do not consider that the need for renewable energy developments can be classified as a social or economic benefit. My updated assessment of the proposal against the criteria of policy I20 is as follows:

(i) impact on landscape character – complies (Fallago Rig assessed alone);


(ii) the structure plan’s environmental policies (N11) – does not comply;(iii) noise – no issue;(iv) interference with aircraft activity – can now be mitigated, complies;(v) shadow flicker, driver distraction – no issue;(vi) any unacceptable cumulative impacts – does not comply.

6.98 I consider that the proposed development would not comply with policy I20 because of the conflict with criteria (ii) and (vi), although this conflict is less than was identified at the time of the last report, because there is no longer a conflict with criterion (iv). The conflict with I20 means that it also fails to comply with policy I19.

6.99 Paragraphs 5.74 and 5.75 of the previous report are superseded by the preceding two paragraphs of this report.

6.100 The Ettrick and Lauderdale and Berwickshire Local Plans are no longer the adopted local plans for the Fallago Rig site area, paragraphs 5.76 and 5.77 are therefore superseded, as is paragraph 5.78.

6.101 The Finalised Scottish Borders Local Plan has now been adopted. The word ‘finalised’ in the first sentence of paragraph 5.79 of the previous report should be replaced with ‘adopted’. Local plan policy EP2 mirrors structure plan policy N11 and my assessment is, therefore, the same (there is conflict with this policy). My assessment of the proposed development against the criteria of policy D4 remains as outlined in paragraph 5.79 of the previous report with the following exception:

5. (vii) Although the interference with the radar at Brizlee Wood would still occur, this interference can now be mitigated. There is, therefore, no longer a conflict with this criterion.

6.102 The findings in paragraph 5.79 of the previous report are amended by the findings in paragraph 6.101 above.

6.103 Policy D4 states that if there are significant adverse impacts that cannot be mitigated, the development will only be approved if contribution to wider economic and environmental benefits outweighs the potential damage to the environment, or to tourism and recreation. I have found that there is no evidence that wind farms harm tourism. Some people who use the area for recreation would consider the proposed development to be harmful. Others would not. In any event, the numbers involved appear to be relatively small. The potential environmental damage I have identified relates solely to the cumulative visual and landscape impact of the proposed development. I consider that the positive wider environmental benefits of the installation* of 144 MW of renewable energy and the contribution this would make to the achievement of the Government targets, identified above at paragraphs 6.5 to 6.17, outweigh the damage to the environment. The proposed development, therefore, complies with policy D4. Furthermore, there is no longer a conflict with criterion (vii). Paragraph 5.80 of the previous report is superseded by this paragraph.

*Paragraph 5.80 of the previous report contains an error in referring to the ‘generation of 144 MW of renewable energy’. This should have read the ‘installation of 144 MW of renewable energy’ as above or ‘installed capacity of 144 MW’ as in paragraph 5.10 of the previous report.


6.104 The conflict with structure plan policies I19, I20 and N11 and local plan policy EP2 arises because of my finding that the proposed development would have a significant cumulative landscape and visual impact. The conflict with the adopted local plan is not as great as the conflict with the structure plan. I note that both the structure plan and the local plan were prepared in the context of NPPG 6. They do not take into account the more recent expression of Government targets on renewable energy confirmed in the Scottish Planning Policy (50% of Scotland’s electricity to be generated from renewable sources by 2020). Paragraph 5.81 of the previous report is superseded by this paragraph.

6.105 Black Mountain Farms have been critical of the balancing exercise undertaken in the previous report, in particular the conclusion that the development plan policy conflicts are outweighed by the benefits from renewable energy generation. They consider that the balancing exercise is not specific. The development plan conflict is a result of the significant cumulative landscape and visual impacts I have identified. I note that all parties, including the applicant, are agreed that Fallago Rig would lead to significant cumulative landscape and visual impacts. I have identified no other reason for conflict with the development plan.

6.106 Local plan policy D4 contains a balancing clause within the policy, which is why I am able to conclude that there is no conflict with that policy (as explained above). In relation to the other policies, I undertake the balancing exercise outwith the development plan. I note, but do not agree with, the applicant’s view that it is possible to employ the balancing test in structure plan policy N11 and local plan policy EP 2, stating that Fallago Rig would have social and economic benefits of national importance which outweigh the limited environmental harm, meaning that it would not conflict with that policy.

6.107 The determination of the balance to be reached between the adverse impacts and the benefits of a proposed development is an exercise of judgement. In this case, it is my judgement that the benefits of the installation of 144 MW and the eventual generation of a significant amount of renewable energy, supported by national policy, outweigh the relatively limited impacts I have identified.

Conditions

6.108 The conditions which are now suggested should be attached to the section 36 consent and the deemed planning permission are contained in Appendix 1 to this report. These are similar to those in Appendix 1 of the previous report. Apart from minor changes, the main differences are as follows:

conditions 5 and 6 of the section 36 consent in the previous report are superseded by condition 5 of the section 36 consent in this report;

the time limit in condition 1 of the deemed planning permission has been reduced from 5 years to 3 years to accord with the provisions of the Planning etc (Scotland) Act 2006;

condition 10 of the deemed planning permission contains a clause allowing for enabling works in advance of the approval of the Construction Method Statement;

conditions 13 (condition of public roads) and 14 (rights of way) are new conditions; condition 15 (micro-siting) (previously condition 14) no longer contains a clause

referring to the remote radar head at Brizlee Wood; and


guidance notes explaining how the noise conditions are to be monitored are attached to the conditions.

6.109 I consider that all of the changes outlined above are sensible, relate to omissions for the most part and make the conditions easier to understand.

6.110 I have changed the wording of condition 5 of the suggested section 36 conditions, as it was not clear that all of the requirements of the Radar Mitigation Scheme did not have to be achieved before the turbines could become operational. The evidence from the Ministry of Defence and North British Windpower is that the only element of the mitigation scheme which had to be achieved before the turbines could become operational is the integration of the air traffic control radar at RAF Leuchars to the UCCS.

6.111 In relation, to submissions made by parties, East Lothian Council’s and Scottish Borders Council’s views are partly based on misunderstandings of the current position. I do not consider that it is necessary for the erection of the turbines to await the integration of the RAF Leuchars radar into the UCCS, as the evidence is that this would be likely to be achieved within a reasonable timescale. I consider the phrase “on a commercial basis” in condition 2 is understandable without definition.

6.112 In relation to condition 10 (construction method statement), the condition suggested in the last report required the council to consult Graham and Sibbald on behalf of Black Mountain Farms and others, in addition to Scottish Natural Heritage and the Scottish Environment Protection Agency. This wording was agreed between the council and North British Windpower at the time. However, although I consider that a responsible developer would consult adjoining landowners in any event, I accept the submissions now made by North British Windpower that it is not usual for a condition to require consultation with private bodies. For the same reason, I have decided not to insert consultation with Black Mountain Farms into the requirements of conditions 24-27. However, I have substituted consultation with the Joint Community Councils in condition 10, as they are public bodies and they may have pertinent local information that council officers are not aware of. I accept the submissions made by the council that consultees should not have the right of veto. The condition requires consultation only.

6.113 With regard to John Dippie’s Well and whether or not it should be included in condition 21 as an archaeological feature to be fenced. I acknowledge submissions made on this issue by the applicant after the close of the inquiry (paragraph 5.16 above). However, the plans showing the access route in Figure 5.2 of the Environmental Statement 2005 appear to be contradictory. The first plan shows pipe culverts to be installed to the west of Twinlaw Ford, which tallies with the explanation of the access route in this location given by the applicant (and also with the plan at Figure 1.2). However, the second plan shows the access route continuing south along the existing access track to the east of Twinlaw Wood, which would bring it very near to John Dippie’s Well (located at NT646 599). I have, therefore, added another clause to condition 21 to ensure that this issue is clarified with Scottish Borders Council before the start of any work on the site.

6.114 In relation to condition 28 (restoration bond), paragraphs 5.87 and 5.88 of the previous report deal with this matter.


6.115 I have seen the works that have taken place on the site, I agree with Scottish Borders Council’s interpretation that these works are unauthorised and require planning permission, for the same reasons. It is stretching credulity for Roxburghe Estates to claim that the estate thought some of the works were agricultural permitted development. It is apparent that local people and adjoining landowners were extremely concerned when these works were underway, understandably. I agree that it is disappointing when organisations of Roxburghe Estates’ stature appear to have attempted to circumvent due processes. Local people must also consider that such apparent disregard for proper procedures would not augur well for the future, if consent and deemed planning permission were to be granted.

6.116 However, not withstanding my concerns, this is a matter for Scottish Borders Council, not for me or for Scottish Ministers. I accept submissions made by counsel for the applicant that a planning permission cannot be implemented before it is granted. I do not, therefore, consider that the works that have taken place on the site mean that the conditions requiring prior agreement of various matters could no longer be complied with.

6.117 Paragraphs 5.82-5.88 of the previous report are added to by the findings in this section and remain unchanged.


Chapter 7

Reasoning and recommendations


7.2 With reference to my findings in Chapter 5 of the previous report, as amended by and added to by my findings in Chapter 6 of this report, I consider the determining issues in relation to the section 36 application are as follows: energy policy; the environmental and other impacts of the proposed development, including those referred to in Schedule 9 of the Electricity Act; the development plan and other planning policy guidance and advice; and the views of consultees and other parties. This paragraph supersedes paragraph 6.2 of the previous report.

7.3 Paragraph 6.3 of the previous report remains unchanged, apart from deletion of the reference to the emerging local plan.


7.5 With reference to paragraph 6.5 of the previous report, I accept submissions made by objectors that the temporary 25 year life of the proposed wind farm and the consequent reversible nature of its impacts is not a justification for acceptance of the cumulative landscape and visual impacts. Accordingly, the last two sentences of paragraph 6.5 are superseded by the following two sentences in this paragraph, the first part of the paragraph remains unchanged: The cumulative landscape and visual impacts would be significant. However, I consider that, bearing in mind the low number of receptors who would bear the impacts, they would be outweighed by the positive wider environmental benefits of the generation of renewable energy.

7.6 In relation to paragraph 6.6, of the previous report, this remains unchanged, except that the relevant conditions are now contained in Appendix 1 of the current report.

7.7 Paragraphs 6.7-6.9 of the previous report remain unchanged.

7.8 The proposal would conflict with the relevant policies of the structure plan and less so with the relevant policies of the local plan. The conflict is due to the location of the proposed development within an Area of Great Landscape Value and its significant cumulative landscape and visual impacts. The proposed development would comply with the local plan renewable energy policy. Both parts of the development plan were prepared in the context of NPPG 6 and do not take into account increased Government support for renewable energy generation. This paragraph supersedes paragraph 6.10 of the previous report.


7.10 Many of the consultees did not object to the proposed development. The proposed conditions could address concerns expressed by other consultees. I do not


agree with the objections made by other consultees and objectors in relation to landscape and visual impacts, including cumulative impacts. This paragraph supersedes paragraph 6.12 of the previous report.

7.11 The Ministry of Defence has conditionally withdrawn its objection to the proposed development. The findings made in paragraph 6.13 of the previous report are no longer applicable and that paragraph is superseded by this one.


7.13 Drawing the matters in this section and those in Chapter 6 of the previous report together, my overall conclusions from both reports are that the conflicts with the development plan are outweighed by Government support for renewable energy generation and the environmental impacts are either acceptable or can be dealt with through conditions. There is no longer any detrimental impact on national security.

Recommendations

7.13 I recommend that consent under section 36 of The Electricity Act 1989 should be granted and that a direction be given that planning permission be deemed to be granted under section 57 of the Town and Country Planning (Scotland) Act 1997. I also recommend that the conditions set out in Appendix 1 of this report should be applied.

KAREN HEYWOOD IEC-3-42Principal Reporter August 2010


Appendix 1

Recommended conditions

SUGGESTED CONDITIONS FOR A CONSENT UNDER SECTION 36 OF THE ELECTRICITY ACT 1989

1. The company shall not be permitted to assign the section 36 consent without the prior written authorisation of the Scottish Ministers. The Scottish Ministers shall consult with the Ministry of Defence before issuing such authorisation and may grant consent (with or without conditions) or refuse such authorisation as they may, in their own discretion, see fit. The consent shall not be capable of being assigned, alienated or transferred otherwise than in accordance with the foregoing procedure.

Reason: to ensure the performance of benefits and responsibilities under the consent and that all responsibilities under the consent are satisfied, if transferred.

2. At least 14 days in advance of the proposed date of commencement of each phase of construction the company shall provide the Scottish Ministers, the planning authority and the Ministry of Defence with the following detailed information in respect of that phase of construction:

(i) the proposed date of commencement of construction;(ii) the proposed date of completion of construction; and(iii) the proposed maximum extension height of any construction equipment;

and no work in respect of that phase of construction shall commence on site until the Ministry of Defence has confirmed to the Scottish Ministers and the planning authority that this information has been provided. Once this information is provided, the company shall give the Scottish Ministers, the planning authority and the Ministry of Defence notice as soon as reasonably practicable if the proposed date of commencement of construction is to change. The company shall provide written confirmation to the Scottish Ministers, the planning authority and the Ministry of Defence of the actual dates on which construction is commenced and completed and of the actual maximum extension height of any construction equipment on site.

3. At least 14 days in advance of the proposed date of erection of the first turbine on site the company shall provide the Scottish Ministers, the planning authority and the Ministry of Defence with the following detailed information:

(i) the proposed position of each turbine in latitude and longitude (in degrees, minutes and seconds);

(ii) the proposed height above ground level of each turbine (to blade tip, in metres); and

(iii) the proposed lighting of turbines if appropriate;

and no turbine shall be erected on site until the Ministry of Defence has confirmed to the Scottish Ministers and the planning authority that this information has been provided.

IEC-3-42 APPENDIX 1102

4. As soon as reasonably practicable following completion of construction of all the turbines on the site, the company shall provide written confirmation to the Scottish Ministers, the planning authority and the Ministry of Defence of the following:-

(i) the actual position of each turbine in latitude and longitude (in degrees, minutes and seconds);

(ii) the actual height above ground level of each turbine (to blade tip, in metres); and

(iii) the lighting of turbines if appropriate.

Reason for conditions 2-4: to ensure that the Ministry of Defence is informed of activities that may potentially affect its interests in respect of overflying of the site.

5. (a) Prior to the erection of any of the turbines on the site, the company shall submit a Radar Mitigation Scheme for the consideration and written approval of the Scottish Ministers, in consultation with the Ministry of Defence. Once the mitigation scheme has been approved, the company shall inform the planning authority of its approval and of its terms.

(b) “Radar Mitigation Scheme” means a scheme designed to mitigate the impact of the development upon the Brizlee Wood Air Defence Radar installation and the air surveillance operations of the Ministry of Defence. The Radar Mitigation Scheme involves the implementation of appropriate measures, including the integration into the United Kingdom Air Surveillance and Control System of the RAF Air Traffic Control radar at RAF Leuchars (“the integration”), to ensure that the Aviation Specification is met. The Radar Mitigation Scheme will also provide for the steps to be taken by the company in the event that the Aviation Specification is not met. The Radar Mitigation Scheme is more fully described in the Heads of Terms dated 1 July 2009 and signed by representatives of the Ministry of Defence and the company.

(c) No turbines shall become operational until the integration required by the terms of the Radar Mitigation Scheme has been implemented and the implementation has been approved by the Scottish Ministers in consultation with the Ministry of Defence. The company shall thereafter inform the planning authority of the approved implementation and comply with all other obligations contained within the approved Radar Mitigation Scheme, informing the planning authority when each step of the scheme has been approved by the Scottish Ministers.

(d) For the purposes of this condition (and unless otherwise agreed between the company and the Ministry of Defence and approved by the Scottish Ministers), “Aviation Specification” means that outside the Volume, the operation of a turbine (either by itself or in combination with any other turbine) shall not at any time cause or contribute to the Probability of Detection being less than 80%.

(e) The “Volume” means a volume bounded by:


a horizontal plane at ground level at the lowest point of elevation in the development;

a horizontal plane 2,500 feet above ground level at the turbine location which is the highest Above Ordnance Datum in the development; and

a vertical elevation formed by the agglomeration of 1 km radius circles around each turbine.

(f) “Probability of Detection” means the probability of detecting a 1m2 Swerling Case 1 target as measured in accordance with the Ministry of Defence’s standard operating procedures for the calibration and checking of Ministry of Defence air defence radars. For the avoidance of doubt, within the Volume, a Probability of Detection greater than 0% is not required.

Reason: unless mitigation is undertaken, the wind farm would have an unacceptable impact on the Primary Surveillance Radar and the Remote Radar Head, Brizlee Wood, Northumberland, with consequent implications for national security.

For the purposes of the conditions 1-5 above, “the company” means North British Windpower Limited, a company registered in Scotland under Company Number SC226523 and having its registered office at 50 Lothian Road, Festival Square, Edinburgh EH3 9WJ, and its permitted assignees who are in possession of a letter of authorisation from the Scottish Ministers in accordance with condition 1.


CONDITIONS SUGGESTED FOR A DEEMED PLANNING PERMISSION UNDER SECTION 57 OF THE TOWN AND COUNTRY PLANNING (SCOTLAND) ACT 1997

Timing

1. The development authorised by this permission shall commence within 3 years of the date of the permission deemed to be granted by Scottish Ministers.

Reason: to accord with the provisions of section 58 of the Town and Country Planning (Scotland) Act 1997 as amended by the Planning etc (Scotland) Act 2006.

2. This permission shall be for a period of twenty five years from the date of first output of electricity to the grid network on a commercial basis (hereafter called “final commissioning of the development”). The developer shall notify the council of the date that this occurs within one month of it occurring. Twelve months before the end of the twenty five year period, unless a further application is submitted and approved, all wind turbines together with their foundations to a depth of 1.2 metres, ancillary equipment and buildings shall have been dismantled and removed from the site and the land restored to its former condition, or other such condition as may be agreed, in accordance with the restoration and after-care schemes to be submitted for the approval of the planning authority and in accordance with condition 27 below, no later than 1 year prior to the expiry of the 25 year period, referred to above.

Reason: to allow the planning authority to review the circumstances of the permission, which is temporary, and in the interests of the amenity of the area in the longer term, beyond the 25 year period covered by the permission.

3. In the event that, after the final commissioning of the development, any wind turbine fails to produce electricity supplied to the local grid for a continuous period of 6 months, or longer if agreed in writing with the planning authority, not due to it being under repair or replacement, then it will be deemed to have ceased to be required, and unless otherwise agreed in writing with the planning authority, the wind turbine together with its foundations to a depth of 1.2 metres, and its ancillary equipment shall be dismantled and removed from the site and the site restored to a condition to be agreed by the planning authority. The restoration of the land shall be completed within 6 months of the removal of the turbine, or any such longer period agreed by the planning authority.

Reason: to ensure the turbines are removed from the site at the end of their operational life and to protect the visual amenity of the area.

Details of the approved development

4. The number of turbines shall not exceed 48 and the position of the turbines shall be as shown on plan reference 13286-078a.wor contained within the Supplementary Environmental Information submitted in October 2006, subject to micro-siting agreed in consultation with the planning authority through condition 15 to this permission. The blade tip height of turbines shall not exceed 125 metres in height, except turbines numbered 1, 2, 5, 11, 18, 22 and 37 on plan reference 13286-078a.wor contained within the Supplementary Environmental Information, which shall not exceed 110 metres in height. The colour and finish of the turbines shall be agreed with the planning authority prior to the erection of any


turbine. Apart from the differences in height mentioned above, all turbines on the site shall be substantially identical in appearance, unless otherwise agreed by the planning authority.

Reason: in the interests of the amenity of the area and to ensure the development complies with the information submitted.

5. All turbines and components shall be installed to meet the safety standards set by British Standard BS EN 61400-1: 2005 ‘Wind turbine generator systems: Safety requirements’ or International Electro-technical Commission IEC 16400.

Reason: in the interests of public safety

6. Prior to the erection or installation of any ancillary equipment or buildings, the design, colour and finish of the equipment and buildings shall be submitted to and approved in writing by the planning authority. Thereafter, the development shall be implemented in accordance with the approved details.

Reason: in the interests of the amenity of the area and because these details have not been provided.

7. All turbine blades shall rotate in the same direction.Reason: to prevent a discordant image, in the interests of the visual amenity of the area.

8. No symbols, signs or logos or other lettering, other than those required for health and safety and for traffic management, shall be displayed on any part of the turbines nor any other building or structures without the written consent of the planning authority.

Reason: in the interests of the visual amenity of the area.

9. The developer shall commission a survey measuring existing television reception quality, which shall be submitted to the planning authority prior to installation of the turbines. In the event that the wind farm is found to cause interference to television reception in the vicinity following a complaint made within two years of the final commissioning of the development, the developer shall take whatever action is deemed necessary by the planning authority to alleviate the problems.

Reason: to safeguard television reception in the area.

Construction

10. (a) Prior to the commencement of the development, apart from the enabling works outlined below, the developer shall prepare a Construction Method Statement (to include a Risk Assessment and an Environmental Management Statement) for the approval of the planning authority, in consultation with Scottish Natural Heritage, the Scottish Environment Protection Agency, and Cranshaws and Ellemford and Gordon and Westruther Community Councils. The Construction Method Statement shall comprise the following details:

a scaled map to include the anticipated layout and width of temporary and permanent tracks, cable routeing, turbine bases,


crane standings, site storage compound, substation, on-site switch gear and equipment store and any ancillary buildings;

all on-site construction, and construction of access tracks, including drainage, mitigation, post-construction restoration, and reinstatement work, as well as the timetables for such work;

any temporary diversions of rights of way and associated signage;

surface water drainage measures to comply with national guidance on pollution prevention, including surface water run off from internal access roads;

the arrangement for the on-site storage of fuel oil; the working and re-instatement of borrow pits; the method, frequency and duration of ecological monitoring,

particularly of watercourses, over the construction period of the wind farm development;

the principles of the Land Management Plan referred to in condition 26 below.

(b) Subject to the following paragraph, no work shall begin on the development, apart from the enabling works, until the Construction Method Statement has been approved. Once approved the works specified in the approved statement shall be carried out as approved, unless otherwise agreed in writing with the planning authority.

(c) The provisions of this condition shall not prevent the following “enabling works” in advance of the approval of the Construction Method Statement:

construction of the temporary site storage compound; the sub-station platform; and the permanent access track to the substation platform along the route

shown on Figures 5.2, 5.3 and 5.3a of the Fallago Rig Windfarm Environmental Statement dated May 2005 (subject to such modification as may be approved in advance by the planning authority);

(d) The enabling works shall not be carried out until details of them (including any necessary measures for public road improvements outwith the site, traffic management, works to be implemented at the entrance to the site to prevent dust and mud entering the public highway, or any related programme of monitoring the condition of public roads) have been submitted to and approved in writing by the planning authority, in consultation with Scottish Natural Heritage, the Scottish Environment Protection Agency and Cranshaws and Ellemford and Gordon and Westruther Community Councils. All of the enabling works shall be carried out in accordance with the approved details.

Reason: to enable a start on construction on the site with the minimum of delay and to minimise pollution risks arising from construction activities.

11. (a) The site compound shall be constructed in accordance with methods to be agreed with and approved in writing by the planning authority, in consultation with Scottish Natural Heritage, the Scottish Environment Protection Agency


and Cranshaws and Ellemford and Gordon and Westruther Community Councils in advance of the commencement of the development. Thereafter, the site compound shall be constructed in accordance with the approved details.

(b) The site compound shall be removed and any works for the reinstatement of the land shall be carried out within 6 months of the completion of the construction works, in accordance with details approved in writing by the planning authority, in consultation with Scottish Natural Heritage, the Scottish Environment Protection Agency and Cranshaws and Ellemford and Gordon and Westruther Community Councils, before the completion of construction works. Thereafter, the site compound shall be removed in accordance with the approved details.

Reason: in the interests of the amenity of the area and to prevent pollution.

Roads issues

12. Prior to the commencement of development, save in respect of the enabling works as provided for in condition 10, the developer shall provide for the approval of the planning authority:

detailed proposals for any necessary public road improvements outwith the site; a programme of necessary traffic management measures to cater for abnormal

vehicle movements; and details of the measures to be implemented at the entrance of the site to prevent dust

and mud entering the public highway.

Apart from the enabling works, no development shall take place on the site until the approved measures have been implemented. The approved measures shall remain in place as appropriate throughout the construction and decommissioning phases of the development.

Reason: in the interests of road safety.

13. Prior to the commencement of development, apart from the enabling works as provided for in condition 10, a programme of monitoring the condition of the public roads serving the site before, during and after the construction and decommissioning phases of the development shall be agreed with the planning authority. Thereafter, any remedial works, as approved by the planning authority, or payment of extraordinary maintenance costs incurred by Scottish Borders Council as a result of the site traffic, are to be carried out or paid within three months of completion of the construction or decommissioning of the wind farm.

Reason: to ensure that any damage to the public road network is rectified.


Rights of Way

14. Prior to the commencement of the development, a plan shall be submitted to the planning authority showing the existing paths and rights of way within the site. Access along such paths and rights of way shall not be disturbed or disrupted during construction and decommissioning, unless a detailed plan with respect thereto has been submitted for the approval of the planning authority and thereafter implemented in accordance with the terms and timescales set therein. Such plan shall include:

(a) the identification of any area proposed to be excluded from statutory access rights and the reasons for such exclusion;

(b) details of the closure or temporary diversion of any identified rights of way at the site and any associated signage;

(c) details of the measures to ensure safe public access along the identified or diverted paths, tracks and rights of way during the construction and decommissioning phases of the development; and

(d) details for the reinstatement and upgrading of the affected routes, including details of way-marking and route interpretation.

Reason: to ensure that public access is maintained during and after the construction phase of the wind farm and that this is achieved in a safe manner.

Micro-siting

15. (a) Following the formation of the access road and completion of the ground investigation studies, details of the precise micro-siting of each turbine and of all ancillary equipment and buildings shall be submitted for the approval of the planning authority prior to the erection or installation of the aforementioned turbines, equipment and buildings.

(b) The micro-siting shall be no more than 50 metres in any direction from the position of each turbine as it is shown on plan reference 13286-078a.wor contained within the Supplementary Environmental Information October 2006, unless agreed with the planning authority in consultation with the Ministry of Defence.

(c) The micro-siting shall maintain a 20 metre buffer zone to water courses as shown on plan reference 13286-079a.wor, unless agreed with the planning authority in consultation with the Scottish Environment Protection Agency and Scottish Natural Heritage.

Reason: to ensure that environmental assets on the site are protected and to advise the Ministry of Defence of any changes that may impact on the Remote Radar Head at Brizlee Wood, Northumberland.

Noise

16. Prior to the installation of the turbines, their specification, with regard to noise predictions, shall be submitted to the planning authority for assessment and confirmation that the noise criteria in this approval will be met.


17. Noise monitoring arrangements for the proposed turbines shall be undertaken in accordance with a programme of work to be agreed with the planning authority. The programme shall be submitted to and approved by the planning authority prior to the installation of the turbines.

18. When assessed in accordance with the attached guidance notes, noise limits at the agreed sensitive receptors identified within section 8 of the Environmental Statement will be met inclusive of any tonal penalty.

19. Noise levels at any noise sensitive premises from the combined effect of the wind turbines where the proprietor or the occupier of the property has no financial interest in the development shall not exceed an external free-field LA90, 10 min level of the greater of 40dB(A) or 5dB at any 10 metre height wind speed up to 12m/s above the prevailing background noise level from 07:00-23:00, and the greater of 43dB(A) or 5 dB at any 10 metre wind speed height up to 12 m/s above the prevailing background noise level from 23:00-0:700. The data provided in the noise assessment presented in the Environmental Statement provides the prevailing background noise level at various wind speeds and the methodology used within that document should be the basis for assessment of future investigations for consistency’s sake. Any assessment of compliance with this condition shall be made in accordance with the guidance notes which follow the final planning condition.

Reason for conditions 16-19: to minimise disturbance and protect the amenity of nearby residents.

20. Wind speed data must be maintained for a period of no less than 12 months from the date of the first output of electricity to the grid network from the wind farm, and for each 12 month period of operation of the wind farm and be made available to the planning authority on request.

Reason: to demonstrate compliance with condition 19 above.

Archaeology

21. No development shall take place on the site in the vicinity of the archaeological features mentioned below until the following works have been undertaken or details agreed:

(a) fencing has been erected, in a manner and at locations to be agreed with the planning authority around the features reference 6, 10, 14 and 23, as identified in the Environmental Statement table number 12.1 and features reference A, H, J, L1 and L2 as identified in the Environmental Statement table number 12.2; and no works shall take place within the area inside that fencing without the prior agreement of the planning authority;

(b) a plan has been submitted for the consideration and written approval of the planning authority to indicate the precise route of the proposed access track in the vicinity of John Dippie’s Well (located at NT 646 559). Thereafter, if considered necessary by the planning authority, fencing shall be erected around the well in the same manner as required above by clause (a) of this


condition in relation to other features, and no works shall take place within the area inside that fencing without the prior agreement of the planning authority;

(c) the sections of new access track in the vicinity of Byrecleugh Steading scheduled ancient monument, as referred to in Annex 5 of the Supplementary Environmental Information dated October 2007, shall be surveyed and laid out under direct archaeological supervision.

Reason: to protect archaeological features or their settings and (for clause (b)) because the access track route shown on the first and second plans of Figure 5.2 of the Environmental Statement dated May 2005 is not clear in the vicinity of John Dippie’s Well.

22. No development shall take place until the applicant has secured the implementation of a programme of archaeological work in accordance with a written scheme of investigation which has been submitted by the applicant and approved by the planning authority.

Reason: to safeguard any archaeological interest on the site.

Ecological issues

23. (a) Prior to the commencement of the development (including the enabling works), the applicant shall appoint an independent full-time Ecological Clerk of Works (ECoW) acceptable to the planning authority, in consultation with Scottish Natural Heritage and the Scottish Environment Protection Agency. The terms of the appointment shall be submitted for the approval of the planning authority, in consultation with Scottish Natural Heritage and the Scottish Environment Protection Agency, and shall include that the appointment shall be for the period of wind farm construction, including micro-siting and the finalisation of the wind farm layout, as well as subsequent post-construction restoration.

(b) The ECoW shall have a duty to monitor compliance with all the ecological and hydrological aspects of the Construction Method Statement, including post-construction restoration, which have been approved under the terms of condition 10 above. The ECoW shall have a duty to report promptly to the developer’s nominated Construction Project Manager any non-compliance with the hydrological or ecological aspects of the Construction Method Statement. The ECoW shall have the power to stop any construction or restoration activity on-site which in his or her view (acting reasonably) could lead to significant effects on the River Tweed SAC, and shall without delay, report the stoppage, with reasons, to the applicant’s nominated Construction Project Manager and to the planning authority, Scottish Natural Heritage and the Scottish Environmental Protection Agency.

Reason: to avoid/ mitigate potential impacts on the River Tweed SAC.

24. Prior to the final commissioning of the development, plans for the method, frequency and duration of ecological monitoring over the operational life-span of the proposed wind farm are to be submitted to, and approved in writing by, the planning authority, in


consultation with Scottish Natural Heritage and the Scottish Environment Protection Agency. The monitoring shall be carried out in strict accordance with the terms set out in the agreed monitoring plan.

Reason: to monitor the watercourses over the operational life-span of the wind farm development and confirm, by monitoring, that no significant effects are occurring to the River Tweed SAC.

25. Prior to the final commissioning of the development, the applicant will submit an operational protocol for approval in writing by the planning authority, in consultation with Scottish Natural Heritage and the Scottish Environment Protection Agency. This will set out details for working practice and wind farm maintenance over the operational life-span of the wind farm. The wind farm shall be operated in strict accordance with the terms of the operational protocol.

Reason: to avoid/mitigate potential impacts on the River Tweed SAC.

26. Prior to development commencing on site, save in respect of any enabling works as provided for in condition 10, the applicant will submit a detailed Land Management Plan for approval in writing by the planning authority in consultation with Scottish Natural Heritage. The Land Management Plan will set out proposed long-term management of the wind farm site and should provide for the maintenance of dwarf shrub heath habitat on site. The Land Management Plan, as approved shall be implemented to the satisfaction of the planning authority in consultation with Scottish Natural Heritage.

Reason: in the interests of maintaining the ecological interest of the site.

Decommissioning and restoration

27. Within 5 years prior to the expiry of the planning permission for the development, a Decommissioning Method Statement shall be submitted for the approval of the planning authority outlining the programme of decommissioning of the wind farm. The Decommissioning Method Statement will include details of all site decommissioning, the work to remove the infrastructure from the site and any subsequent aftercare required following site restoration. It will include provision for the appointment of an Ecological Clerk of Works acceptable to the planning authority (in consultation with Scottish Natural Heritage and the Scottish Environment Protection Agency), whose role will be to oversee implementation of the plans so approved. These plans will include the method, frequency and duration of ecological monitoring, particularly of watercourses, over the decommissioning period of the wind farm development. Six months prior to the expiry of the planning permission, the Decommissioning Method Statement shall be reviewed by the wind farm company and the planning authority, and any alterations deemed appropriate and mutually acceptable shall be made. Within six months, or any alternative timescale agreed by the planning authority, of the wind farm ceasing to be used for the generation of electricity, the site shall be restored to such condition as set out in the agreed Decommissioning Method Statement.

Reason: in the interests of the amenity of the area and to ensure the site is satisfactorily restored.


28. (a) Prior to the commencement of the development, the developer shall provide to the planning authority details of the bond or other financial provision which it proposes to put in place to cover all decommissioning and site restoration costs on the expiry of this consent.

(b) No development shall commence on the site until the company has provided documentary evidence that the proposed bond or other financial provision is in place and written confirmation has been given by the planning authority that the proposed bond or other financial provision is satisfactory.

(c) The developer shall ensure that the approved bond or other financial provision is maintained throughout the duration of this consent.

(d) The bond or other financial provision will be subject to a five yearly review, paid for by the developer, from the commencement of the development, to be conducted by a competent independent professional who has relevant experience within the wind energy sector and provided to the company, the landowners, and the planning authority.

Reason: to ensure that there are sufficient funds available to ensure the full restoration of the site.

GUIDANCE NOTES RELATING TO CONDITIONS 18 AND 19 ARE OVERLEAF


GUIDANCE NOTES RELATING TO CONDITIONS 18 AND 19

These notes form part of conditions 18 and 19. They further explain these conditions and specify the methods to be deployed in the assessment of complaints about noise emissions from the wind farm.

GUIDANCE NOTE 1

(a) Values of the LA90,10min noise statistic should be measured at the complainant’s property, using a sound level meter of IEC 651 Type 1, or BS EN 61672 Class 1, standard (or the equivalent relevant UK adopted standard in force at the time of the measurements) set to measure using a fast time weighted response. This should be calibrated in accordance with the procedure specified in BS 4142: 1997 (or the equivalent relevant UK adopted standard in force at the time of the measurements).

(b) The microphone should be mounted at 1.2-1.5m above ground level, fitted with a 2 layer windshield or suitable equivalent approved by the local planning authority, and placed outside the dwelling. Measurements should be made in "free-field" conditions, so that the microphone should be placed at least 3.5m away from the building facade or any reflecting surface except the ground.

(c) The measurements should be synchronised with measurements of the 10-minute arithmetic average wind speed and with operational data from the turbine control systems.

(d) To enable compliance with the conditions to be evaluated, the wind farm operator shall continuously log the arithmetic mean wind speed and arithmetic mean wind direction data in 10-minute periods from the hub height anemometer located on the site meteorological mast to enable compliance with the conditions to be evaluated. Such data shall be 'standardised' to a reference height of 10 metres as described in ETSU-R-97 at page 120 using a reference roughness length of 0.05m.

GUIDANCE NOTE 2

(a) The noise measurements should be made so as to provide not less than 20 valid data points for the range of wind speeds, wind directions, times of day, turbine operations requested by the Local planning authority excluding periods of rainfall. In specifying such conditions the Local planning authority shall have regard to those conditions which were most likely to have prevailed during times when the complainant alleges there was disturbance due to noise.

(b) A least squares, "best fit" curve of a maximum 2nd order should be fitted to the data points and this will define the rating level at each integer wind speed.

GUIDANCE NOTE 3

Where, in the opinion of the local planning authority noise emissions at the location or locations where assessment measurements are being undertaken contain a tonal component, the following rating procedure should be used:


(a) For each 10-minute interval for which LA90,10min data have been obtained as provided for in Note 1, a tonal assessment shall be performed on noise emissions during 2-minutes of each 10 minute period. The 2-minute periods shall be regularly spaced at 10-minute intervals provided that uninterrupted clean data are available. Where clean data are not available, the first available uninterrupted clean 2-minute period out of the affected overall 10-minute period shall be selected. Any such deviations from standard procedure shall be reported.

(b) For each of the 2-minute samples the margin above or below the audibility criterion of the tone level difference, DLtm (Delta Ltm), shall be calculated by comparison with the audibility criterion given in Section 2.1 on pages 104-109 of ETSU-R-97.

(c) The margin above audibility shall be plotted against wind speed for each of the 2-minute samples. For samples for which the tones were below the audibility criterion or no tone was identified, a value of zero audibility shall be substituted.

(d) A linear regression shall then be performed to establish the margin above audibility at the assessed wind speed for each integer wind speed. If there is no apparent trend with wind speed then a simple arithmetic average shall be used.

(e) The tonal penalty shall be derived from the margin above audibility of the tone according to the figure below. The rating level at each wind speed shall be calculated as the arithmetic sum of the wind farm noise level, as determined from the best fit curve described in Note 2, and the penalty for tonal noise.

GUIDANCE NOTE 4

If the rating level is above the limit set out in the conditions, measurements of the influence of background noise shall be made to determine whether or not there is a breach of condition. This shall be achieved by repeating the steps in Note 2, with the wind farm switched off and determining the background noise at the assessed wind speed, L3. The wind farm noise at this speed, L1, shall then be calculated as follows, where L2 is the measured wind farm noise level at the assessed wind speed with turbines running but without the addition of any tonal penalty:

/10L/10L1

32 1010 log 10 LThe rating level shall be re-calculated by adding the tonal penalty (if any) to the derived wind farm noise L1. If the rating level lies at or below the values set out in the conditions


then no further action is necessary. If the rating level exceeds the values set out in the conditions then the Development fails to comply with the conditions.


Appendix 2

Inquiry documents

North British Windpower

NBW1 Report on the 2008 Inquiry.NBW2 Environmental Statement Addendum, July 2009.NBW3 Minute of Appointment of the Reporter dated 12 November 2009.NBW4 Email from Carol-Anne Redpath (DPEA) to Emma Dewar and others

dated 24 December 2009.NBW5 Email from Pauline Hendry (DPEA) to Matthew Topsfield and others

dated 18 January 2010.NBW6 Extracts from closing submissions and supplementary closing

submissions to the inquiry on behalf of the applicants and objectors re radar issue(a) Extract of closing submissions on behalf of NBW.(b) Supplementary closing submissions on behalf of NBW.(c) Closing submissions on behalf of the MOD.(d) Supplementary closing submissions on behalf of the MOD.(e) Extract of closing submissions on behalf of SBC.(f) Extract of closing submissions on behalf of East Lothian

Council.(g) Extract closing submissions on behalf of Black Mountain Farms.

NBW7 Memorandum of Understanding among BERR, DfT, MOD, CAA, NERL and BWEA, dated 11 June 2008.

NBW8 Circular 4/1998: The Use of Conditions in Planning Permissions. (CD46)*

NBW9 Guidance Note on Onshore Wind Energy Planning Conditions, October 2007. (NBW 89)*

NBW10 S36 consent and deemed planning permission granted by the Scottish Ministers for Whitelee Windfarm on 5 May 2006.

NBW11 Planning permission granted for Tormywheel Windfarm on 7 June 2007. (NBW53(f))*

NBW12 S36 consent and deemed planning permission granted by the Secretary of State for Business, Enterprise and Regulatory Reform for Keadby Windfarm on 28 February 2008.

NBW13 S36 consent and deemed planning permission granted by the Secretary of State for Business, Enterprise and Regulatory Reform for Tween Bridge Windfarm on 28 February 2008.

NBW14 S36 consent and deemed planning permission granted by the Scottish Ministers for Clyde Windfarm on 21 July 2008.

NBW15 S36 consent and deemed planning permission granted by the Secretary of State for Business, Enterprise and Regulatory Reform for Middlemoor Windfarm on 7 August 2008.


NBW16 S36 consent and deemed planning permission granted by the Secretary of State for Business, Enterprise and Regulatory Reform for Sheringham Shoal Windfarm on 7 August 2008.

NBW17 Heads of Agreement between Ridgewind Limited and the MOD with respect to Hall Farm Windfarm dated 24 July 2008.

NBW18 UK Energy White Paper 2007 (extract)(NBW16)NBW19 Energy Act 2008 (extract)NBW20 Climate Change Act 2008 (extract)NBW21 The UK Low Carbon Transition Plan (extract) (MOD 23)NBW22 UK Renewable Energy Strategy (extract) (MOD 22)NBW23 Climate Change (Scotland) Act 2009 (extract)NBW24 Climate Change Delivery Plan 2009 (extract)NBW25 Scottish Government Renewables Action Plan 2009 (extract) plus

additional extract pp 77-81 lodged post inquiryNBW26 Scottish Borders Local Plan adopted September 2008 (extract)

(SBC102)NBW27 Scottish Borders Structure Plan (extract) (SBC101)NBW28 NPF2 (SBC104)NBW29 Scottish Planning Policy (SBC 105)NBW30 PAN 45 Annex 2 (SBC106)NBW31 Devereux, C.L., Denny, M.J.H. & Whittingham, M.J. (2008) ‘Minimal

effects of wind turbines on the distribution of wintering farmland birds’. Journal of Applied Ecology 45: 1689 – 1694.

NBW32 de Lucas, M., Janss, G.F.E., Whitfield, D.P. & Ferrer, M. (2008) ‘Collision fatality of raptors in wind farms does not depend on raptor abundance’. Journal of Applied Ecology 45: 1695 – 1703.

NBW33 Fárfan, M.A., Vargas, J.M., Duarte, J. & Real, R. (2009) ‘What is the impact of wind farms on birds? A case study in southern Spain’. Biodiversity and Conservation 18: 3743 – 3758.

NBW34 Pearce-Higgins, J.W., Stephen, L., Langston, R.H.W., Bainbridge, I.P. & Bullman, R. (2009) ‘The distribution of breeding birds around upland wind farms.’ Journal of Applied Ecology 46: 1323 – 1331.

NBW35 Letter from SNH to DPEA dated 18 January 2010NBW36 Email from Matthew Topsfield, SNH, dated 16 February 2010 (with

email correcting typographical error dated 22 February 2010). NBW37 Supplementary Environmental Information February 2010 (already

circulated).NBW38 Appendix 1 to Precognition on Landscape and Visual Evidence.NBW39 Email from Nuala McKinlay, Scottish Borders Council, to the DPEA and

others dated 19 February 2010.NBW40 Visitors numbers from counters on the Southern Upland Way.NBW41 Email from Reporter to Pauline Hendry dated 29 October 2009.NBW42 Letter from Entec to Lesley McNeil, Renewable Energy Division, dated

12 April 2010 re RSPB response to 2010 SEI.NBW43 Extract from Scottish Borders Council Household Survey August 2008

* Documents not circulated as lodged at the original inquiry.


Ministry of Defence

MOD21 Directive 2009/28/EC on the promotion of the use of energy from renewable sources

MOD22 The UK Renewable Energy Strategy July 2009MOD23 Government White Paper – The UK Low Carbon Transition Plan July

2009MOD24 Letter from Defence Estates to Scottish Government 1 July 2009MOD25 Heads of Agreement between the Ministry of Defence and North British

Windpower Limited dated 1 July 2009MOD26 News release from the Scottish Government website dated 4 August

2008 regarding ‘Use of Suspensive Conditions’MOD27 Written statement of the Department of Energy and Climate Change

date 11 March 2010MOD28 Section 36 of The Electricity Act 1989

Cranshaws, Ellemford and Longformacus Community Council and Gordon and Westruther Community Council (the Joint Community Councils)

JCC1 Review of Guidance on the Assessment of Cumulative Impacts of Onshore Windfarms. September 2008, Entec UK Limited

JCC2 Walking Tourism Opportunities for Growth JCC3 Scotways Heritage Paths JCC4 Scotways Heritage Paths the Herring Road JCC5 Scottish Borders Council Wind Farm Database JCC6 Scottish Borders Council Wind Farm Database MapJCC7 Scottish Borders Council Scoping Opinion for Brunta Hill wind farm,

Westruther, BerwickshireJCC8 Scottish Borders Council Scoping Opinion for Blackburn Farm wind

farm, BerwickshireJCC9 Scottish Borders Council Scoping Opinion for Kinnegar Quarry wind

farm, Cockburnspath, BerwickshireJCC10 Scottish Borders Council Scoping Opinion for Penmanshiel Moor wind

farm, BerwickshireJCC11 Scottish Borders Council Scoping Opinion for Sunwick wind farm,

BerwickshireJCC12 Scottish Borders Council Planning & Building Standards Committee

Minutes of the Meeting of 8 February 2010JCC13 VisitScotland Scottish Borders Tourism Statistics 2008JCC14 Visit Scotland From Munros to Ramblers: the prospects for Scotland's

Walking Proposition to 2010JCC15 VisitScotland Latest Tourism Figures 2009JCC16 VisitScotland Country Sports & TourismJCC17 Web site extracts re:walking in the Lammermuirs JCC18 Southern Upland Way JCC19 Note of relevant Midlothian ApplicationsJCC20 Extract from East Lothian Wind Farm DatabaseJCC21 Correspondence between Ministers, Directors of North British

Windpower & the Duke of RoxburgheJCC22 Press Coverage re detriment to tourism


Black Mountain Farms, Cranshaws Ltd, Moorfoot Capital Management, Faccombe Estates Ltd, Lauderdale Estates, Burncastle Estate, Horseupcleuch Estate and the Lammermuir Protection Group (Black Mountain Farms)

BMF1 BMF visual and landscape impact figures March 2010Map with all Lammermuir windfarmsMap showing BMF and other estates

BMF2 Visualisation Standards for Wind Energy Developments, Highland Council, 2010

BMF3 Scotways leaflet “Walking in the Lammermuir Hills”BMF4 www.southernuplandway.gov.uk Walking, home page 24 Feb 2010BMF5 The Scotsman, Winter Walks part 2 booklet, Jan 2010 Dye Water and

Watch Water Reservoir, LongformacusBMF6 Geograph image – Herring Road Signpost NT 6468BMF7 Crystal Rig photographs – ice warning notice and rotor breakBMF8 Lammermuirs and cumulative impact area – turbine numbers version 3

March 2010BMF9 Fallago Rig media mentionsBMF10 Lammermuir images – habitat, wildlife, landscape, heritage.BMF11 Photographs of works at ByrecleughBMF12 SRDP conservation award to Floors www.roxburghe.netBMF13 Scottish Government Rural Priorities Case Studies/ SRDPBMF14 Scottish Government Rural Priorities case reports – Byrecleugh and

RawburnBMF15 RE News article 5 Nov 2009 re GDF Suez and EDF race to buy

Fallago Burness Dec 2009 ADR and FallagoBMF16 SEPA (Victoria Reeves) memo 9 Nov 2009 re Fallago inspection BMF17 SEPA (Cara Everitt) to I Kelly re FOI request 7 Jan 2010BMF18 SEPA list of documents “response to Fallago request” dated Dec 09BMF19 East Lothian Executive Director of Environment report on Keith Hill to

Planning Committee, 1 September 2009BMF20 Keith Hill DPEA Appeal Decision Notice 15 Feb 2010 BMF21 Rifkind/Defence Estates correspondenceBMF22 DPEA/applicant post 2008 inquiry correspondence BMF23 Emma Dewar email to Ian Kelly 2 Nov 2009BMF24 Scottish Government ECU/South West Scotland Aviation Solution

Group Final Radar Feasibility Study, Feb 2010 (not appendices)BMF25 ScotWays letter to DPEA 1 March 2010 BMF26 BMF Procedure Note IK to DPEA 10 Feb 2010 BMF27 Black Craig Windfarm Report to Scottish Ministers 23 July 2009 (not

appendices)

Scottish Borders Council

SBC101 Scottish Borders Structure Plan 2001 – 2018SBC102 Scottish Borders Local Plan - Adopted 2008 Vol 1 & Vol 2SBC103 Scottish Borders Local Plan Amendment – Finalised Plan 2009SBC104 National Planning Framework for Scotland 2SBC105 Scottish Planning Policy


SBC106 Planning Advice Note PAN 45: Annex 2: Spatial Frameworks and Supplementary Planning Guidance for Wind Farms

SBC107 Scottish Planning Series: Planning Circular 1 2010: Planning Agreements

SBC108 Scottish Planning Series: Planning Circular 10/2009: Planning Enforcement

SBC109 Tables 1-4: Windfarms and Generating Capacity in the Fallago Rig Study Area 2008 vs. 2010 (Ironside Farrar, 2010)

SBC110 SNH Windfarm Footprint Map, September 2009SBC111 Siting and Design of Windfarms in the Landscape (SNH, 2009)SBC112 Strategic Locational Guidance for Onshore Windfarms in Respect of

Natural Heritage (SNH Policy Statement No. 02/02 updated March 2009

SBC113 Assessing the Cumulative Effect of Onshore Wind Energy Developments Version 3 – Draft for Consultation (SNH, November 2009)

SBC114 Levels of Cumulative Windfarm Development Expressed as Landscape Types (Ironside Farrar, 2010)

SBC115 Appeal Decision Notice, 26 May 2009: Montreathmont Moor, by Friockheim, Angus. Planning appeal reference: P/PPA/120/242.

SBC116 Appeal Decision Notice, 26 May 2009: Land at Mountboy, Adjacent to Rossie School, Montrose, Angus. Planning appeal reference: P/PPA/120/222.

SBC117 Photographs of Aikengall Windfarm from East Lothian (Ironside Farrar 2010)

SBC118 Appeal Decision Notice, 15 February 2010: Keith Hill, Humbie, East Lothian. Planning appeal reference: P/PPA/210/2006.

SBC119 Merritt v Secretary of State and Another 1999

Scottish Natural Heritage - annexes to written submission

SNH1 SNH response letters to new wind farm schemes comprising the primary focus for consideration of Fallago Rig’s cumulative landscape and visual impacts

SNH2 Updated SNH policy statementSNH3 Updated SNH guidance documents


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