A leading expert in planning inquiry advocacy, who represents Scotland's largest private landowner in a bid to block a highly contentious wind farm scheme, claims Scottish Borders Council is acting outwith its statutory powers, and any decision taken in the case could face a legal challenge.
Buccleuch Estates are among hundreds of objectors to the planned wind farm development at Windy Edge, close to Hermitage Castle, described as "the guard house to the bloodiest valley in Britain". Last year Infinis Energy submitted a planning application for 17 turbines, each up to 121.5 metres high right in the heart of wild Border Reivers country.
Opponents - including Historic Scotland, the custodians of the Thirteenth Century castle - warned the windmills would introduce a feature into the landscape of Liddesdale which would challenge the monument and its setting.
In a written submission to the council Historic Scotland state: "Hermitage Castle is one of the great medieval fortresses of Scotland, associated with stories which are historic, heroic and horrific. Some true - Mary Queen of Scots' visit, some less believable like the story of the evil Lord Soulis and the Cout of Kielder, a giant with magic chain mail."
In an attempt to meet concerns for the castle Infinis wants to reduce the number of turbines at Windy Edge from 17 to 9 by removing the so-called eastern array closest to Hermitage. At the same time the remaining towers would extend up to 125 metres, and there's a community benefit fund worth £135,000 per annum on offer to the Newcastleton area. But consideration of the proposals is set to drag on until at least the end of this year.
Borders planners have indicated the authority will accept the change from 17 to nine turbines as "further environmental information", and a revised application will not be required. The variation does not, in the view of planning officer John Hiscox, constitute a substantial difference in the description of the development for which permission is sought.
However, Alastair McKie, head of planning and the environment at law firm Anderson Strathern has taken issue with the planners' stance. He represents Buccleuch Estates as well as the local Hermitage Action Group, which is fighting the proposed wind farm tooth and nail.
The expert in planning law, regarded as a leader in his chosen field, specialises in development inquiry advocacy. Buccleuch Estates own 240,000 acres of land in the Borders, Dumfries & Galloway and Northamptonshire with an estimated value of £800 million to £1 billion.
Mr McKie says he cannot see how the proposed changes could be anything other than substantial because of their effects and impacts, some of which will increase. The current application should therefore be withdrawn and a fresh one submitted.
In an email exchange with Mr Hiscox he adds: "My clients maintain that your council is acting outwith its statutory powers in this matter. I specifically reserve my clients' right to challenge any decision made by your council in its determination of the application".
Infinis, which currently generates seven per cent of the UK's renewable energy from 16 wind farms, say they have cut the number of proposed turbines at Windy Edge from 17 to nine despite advice from two independent archaeologists that the original layout would have an effect of minor
significance on the setting of Hermitage Castle.