The difficulties for would-be challengers of windfarms have been highlighted further by a Court of Session judge's refusal to grant a landowner a Protective Expenses Order ("PEO") – read more here.
PEOs are a relatively recent development in Scotland and have been designed to avoid unlimited exposure to an opponent's costs, which can act as a deterrent to litigation in the public interest. In December 2012 a PEO was sought and obtained by Sustainable Shetland as part of that organisation's challenge to a windfarm on Shetland. Sustainable Shetland's liability for the Scottish Minister's costs was limited to £5,000, with a further cap being set whereby the Scottish Minister's liability to meet Sustainable Shetland's costs would be limited to £30,000.
Before a PEO will be granted the Court need to be satisfied that:-
- the issues raised are of general public importance;
- the public interest requires that those issues should be resolved;
- the applicant has no private interest in the outcome of the case;
- having regard to the financial resources of the parties and to the amount of costs that are likely to be involved, it is fair and just to make the order; and
- if the order is not made, the applicant will probably discontinue the proceedings and will be acting reasonably in doing so.
In the present case the landowner was seeking a judicial review of the Scottish Ministers decision not to hold a public inquiry and to grant consent to Scottish Power Renewables (UK) Limited for the construction and operation of Dersalloch Windfarm in South Ayrshire.
The landowner owns a grade A listed building some 4km from the proposed windfarm. The court was told that the likely cost of bringing judicial review proceedings would be £173,000.
The landowner's request was refused on the fourth of the five tests set out above when his assets (which included an estate, a sheep enterprise producing organic lamb, a riding stable and holiday cottages in addition to pension funds) were considered as a whole. The landowner argued that he should not be required to borrow on the security of his property or to sell any property that was part of his main business interest and that sale of any of his land would substantially undermine the historic integrity and financial viability of the estate. These arguments were not sufficient to persuade the judge and illustrate the difficulties which can be faced in mounting any challenges to windfarm developments.