TWO local authorities have this week expressed their "growing consternation" that Scottish Ministers may be acting outwith their powers in their dealings over the Fallago Rig wind farm inquiry.
It is now over 15 months since an official public inquiry was held into Scottish Borders Council's refusal to grant planning permission for a 48 turbine wind farm at Fallago Rig on the western edge of the Lammermuirs and still the results of that inquiry have not been made public.
The Reporter who heard the inquiry gave her findings to the Government's Energy Consents Unit back in August 2008 but the Scottish Government has still not given its verdict and it now transpires that the Government's Renewable Energy Division has "been in contact with the MoD and the applicant" and had further discussions about the proposed wind farm.
No other party involved in the Public Inquiry has been involved in these further discussions which took place in October/November last year.
Cranshaws, Ellemford and Longformacus Community Council raised the alarm when they discovered that after the public inquiry closed the Government admitted instigating discussions with both the applicants, North British Windpower, and the Ministry of Defence, who had opposed the windfarm and produced evidence to the public inquiry that a number of the wind turbines would interfere with radar signals.
"We are extremely concerned about the abuse of inquiry procedure by the government to apparently achieve an outcome to suit its policy objectives in this area," said David Lochhead, chairperson of Cranshaws, Ellemford and Longformacus Community Council in an open letter to Energy Minister Jim Mather.
"It appears that the government is willing to over-ride the proper planning procedure in support of their wind energy policy objective in the case of the Fallago Rig application.
"Both of the local authorities who are parties to the Inquiry have questioned the government's handling of this inquiry."
Scottish Borders Council's senior solicitor has written to Lesley McNeil at the Government's Renewable Energy Division Consents and Deployment Teams saying: "The council is anxious that this matter be finally brought to a resolution in order to provide clarity and certainty for the local population.
"SBC, too, have followed the correspondence with growing consternation.
"I have taken the opportunity to review the 1997 Rules and struggle to find within those Rules any legal explanation or justification for events that have taken place since the inquiry closed.
"The Inquiry was held and closed in January 2008. Ms Heywood reported to the Scottish Government in August 2008.
"In October 2008, two letters were issued by the ECU - one to the applicant and one to the MOD.
"These letters actively sought new factual information from those parties.
"All other parties before the Inquiry were excluded from this process.
"SBC has very serious doubts that this approach is in keeping with the principles of openness and fairness central both to our principles of Natural Justice and to the Human Rights Act.
"I wonder if you could direct me to where in the Rules there is provision for the Scottish Government actively seeking new information on matters debated at length during the Inquiry before the Reporter appointed by the Government to examine those facts?
"Such is the procedure being adopted in this instance and SBC are concerned regarding the legality of this approach."
East Lothian Council's corporate legal adviser has written in a similar vein saying: "I have followed the correspondence on this matter and wish to add the council's concerns to those raised.
"My understanding of the purpose of rule 21(4) is similar to Mr Kelly's and I am surprised to note that the Scottish Government Legal Directorate and the DPEA find recent events to be satisfactory.
"I also note your passing reference to rule 21(5) stating that 'Ministers … may in any case if he thinks fit cause the inquiry to be reopened'.
"Clearly the inquiry has not been reopened; rather, two of the parties have been given an opportunity to submit additional information in private without any other party, nor, indeed, members of the public, having an opportunity to hear this new 'evidence'."
The fact that two local authorities are now questioning the legality of the Scottish Government's actions is a matter of concern to Roxburgh and Berwickshire MSP, John Lamont.
Mr Lamont said: "It is important to ensure that due process is being carried out. The fact that these two local authorities have raised questions about this being adhered to raises significant concerns.
"The whole point of having a public inquiry process is that the decision making process is transparent, and people can see the evidence on which the decision is based.
"I have expressed my concerns to the Minister but am still waiting for adequate re-assurances."
Mr Lochhead, concluded: "The prospect of a decision being made in favour of the developer, against the recommendation of the Inquiry Reporter, based on 'new' information actively solicited by the government to remove objections on national security concerns, robustly expressed by the MOD, would contravene any sense of natural justice."
(Mr Lochhead's open letter to the Energy Minister can be read on Page 2.)