Staff blog: A level playing field?

As the Scottish Government's planning review continues, Trust Campaigns Co-ordinator, Mel Nicoll reflects on environmental justice issues

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The forthcoming Scottish Government Planning Bill will be vital to the protection, or otherwise, of wild land and the natural environment but the Scottish Government also aims to improve the way in which people are involved in the planning process, specifically “to empower them to have more influence.”

This is a worthy aim when you consider how the planning regime is currently weighted in favour of developers with huge financial resources at their disposal. For most planning applications, developers have a right of appeal if their application is refused – but if the development is approved, objectors have no such right. This imbalance leaves individuals, communities and charities with no other recourse than to challenge a decision in court. Apart from the huge cost of such actions, a Judicial Review can only take a restricted look at the process of the decision-making, not the quality.  

As the Scottish Government’s planning review progresses towards publication of the proposed Planning Bill later this year the question of whether there should be Equal Rights of Appeal (sometimes called Third Party Rights of Appeal or Community Right of Appeal) is therefore very much at the forefront of our minds.

Helen McDade has talked about the importance of the planning review for wild land in a previous blog article. The review also provides an opportunity to redress the access to justice issues I referred to above. More generally the review gives an important opportunity to establish a framework that offers a far stronger guarantee that people can engage and be heard meaningfully in the planning process than is currently the case.  This applies to both local communities but also to wider communities of interest - for example, the many Trust members and supporters who care deeply for the future for Scotland’s wild land.

There has been a recent trend in planning throughout the UK to “front-load” the consultation system, i.e. to provide, at an early stage, most of the opportunities for the public to engage in the planning application process. This is assumed to mean that any difficulties in the application are dealt with at that point, leading to a more acceptable application at the final stage. This assumption is used to justify the lack of opportunity for the public to challenge decisions at the end of the planning process, other than thorough costly legal action.  

Evidence submitted since the introduction of the Planning (Scotland) Act 2006 and throughout the Scottish Government's recent consultation suggests, however, that this system has been far from satisfactory. (See independent research paper for Scottish Government “Barriers to engagement”)   

Many people and groups report that their responses are not taken into account and that their objections at Public Local Inquiries - even when based on sound scientific research - are not given due weight. Front-loading of the planning system does not therefore justify the Scottish Government’s rather summary dismissal of the provision to objectors of a reasonable remedy at this later stage in the planning process, such as an Equal Right of Appeal.  

Although the Bill is intended to include Local Place Plans, it is unclear how, or if, they will be taken fully into account in Local Development Plans which are the main way in which areas are identified for suitable development. Overall, the current package of proposals being considered for inclusion in the Planning Bill could lead to further unfairness and a more one-sided, undemocratic process favouring developers with extensive financial resources.  

Some of the changes suggested appear undemocratic and, where environmental concerns are present, could potentially contravene the United Nations’ Aarhus Convention and Aarhus Directive.  

Recent media coverage has highlighted the findings of the UN’s Compliance Committee which has been looking into the UK’s compliance with its obligations and to which the Trust submitted evidence based on its Stronelairg experience. The Committee raised concern that, in spite of some progress, Scotland has not yet fulfilled the requirements.

Helen McDade
“There is precious little access to environmental justice unless you have very deep pockets. The Trust took a key case against the Scottish Government and won in the first instance. But having been refused protection against potential legal costs we could not afford to appeal to the Supreme Court.” Trust Head of Policy, Helen McDade - quote to press.

All this makes it hard to reconcile the stated desire of the government to empower communities with the proposals as they currently stand. We need a stronger voice to help us in our campaign to protect wild land. For these reasons we will continue to work hard to secure a Planning Bill that ensures environmental justice.

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