Hunterston judgement and our response
Today the judgement on the Hunterston case was finally made 11 months after it was heard in the Court of Session. The case was dismissed on two technicalities. The first of these was ‘title and interest’ and the second ‘mora, taciturnity and aquiesence’ (don’t worry we will explain!)
The judgement says that Marco McGinty, the petitioner, did not have sufficient ‘interest’ to be able to take the case. Although he regularly uses the site to watch birds recreationally, he lives too far away (five miles) and has no private financial interest in it. The judge felt that this meant he had no legitimate right to pursue the case.
It also states that Marco filed his petition too late (this is the mora argument). The court says that he should have put the petition in before the National Planning Framework was published. The reason being that ‘the petitioner’ ought to have been aware of NPF2 in September 2008, a year before the petition was presented. The court stated that “considerable uncertainty would be caused to the planning system if late challenges of the present sort were to be allowed to proceed”.
Marco argued that he did not even know about the NPF2 until July 2009 when he attended a meeting in Largs. It was here that he learnt, not only that there was a document called the NPF2, but that it included something called a national development at Hunterston. The reason he did not know about this was because it was only advertised in the Edinburgh Gazette and on the Scottish Government website and not in any widely read national or local newspapers.
Even if Marco had been aware of the NPF process he wouldn’t have found any mention of Hunterston in the initial consultation document. He would have needed to look out for a document called “National Planning Framework 2: SEA (Strategic Environmental Assessment) Supplementary assessment of the environmental effect of candidate national developments; Environmental Report, annex 2: Consultation paper”, something which the court suggests he was at fault for failing to do.
As soon as he was made aware of the NPF2 and the implications of having Hunterston in it Marco put in for a judicial review immediately. However, the judge felt that this was too late in terms of judicial review proceedings and that the Government had done all they were required to do in terms of advertising and making him aware of the document.
We are very concerned by the implications of this judgement. For a start it suggests that the legal definition of who has a legitimate interest in planning processes is very different from what most of us would consider a common sense view, and from that which typically applies in the planning process. Marco was taking this case in the public interest and to protect an important bird site he cared deeply about, not for his own personal gain. The Scottish interpretation of who has sufficient title and interest to make important challenges such as this is incredibly restricted (far less so than in England where the interpretation is much broader).
The legal system is currently heavily weighted in favour of Government and private property interests. It does not recognise the right of the public to have a voice in legal terms and this weakens our democracy by limiting our ability to hold decision-makers to account.
Planning Democracy also feels that this judgement endorses a frustratingly limited interpretation of consultation that is directly contrary to the spirit of public participation in planning. Indeed, it appears that the drive for more efficient decision-making in planning is limiting the spaces for democratic participation. This means the system is going in the opposite direction from international legislation such as the Aarhus Convention which actively promotes greater public involvement in decisions that affect the environment.
The website of the Edinburgh Gazette admits that it is a highly specialised publication and anyone who has read it will know that it is not a light read. It is highly unlikely that a normal member of the public will “periodically check” the magazine, just in case, as the court suggests Marco should have done. How then is someone who has never heard of the National Planning Framework expected to know about it and get involved in the consultation unless it is widely advertised both nationally and in those areas that are most likely to be affected?
The NPF should be a document that flows from a process of serious debate and discussion, a genuine national conversation about how Scotland should develop. That won’t mean that everyone is happy with the results, but it will mean that decisions are democratically validated.
Unfortunately this isn’t how the NPF2 was produced. There have been record levels of objection to the designation of Hunterston as a national development, nearly 20,000 since the planning application was lodged, but the poorly advertised consultation through which the principle of the development was established (meaning that it is now too late to challenge anything other than the detail of the development) prompted only 26 responses. This suggests a process that failed to engage with many of those, like Marco, who were affected or concerned.
This might suit those who see democracy as a time consuming source of inefficiency and delay, but it also further contributes to people’s mistrust of government and the planning system. By accident or design, the process of designating national developments seems to have minimised the opportunity for people to have a say. The court’s judgement says that the Scottish legal system is happy with that. We disagree.