Equal rights of appeal – campaign launch!

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Cartoon of a football pitch sloped from the developer's goals towards the community's goal and a man saying "we never promised you a level playing field"

From golf courses in Aberdeen to coal fired power stations in Ayrshire; wind farms in Shetland to unconventional gas in Dumfries and Falkirk; hotel complexes in Edinburgh to opencast mines in Midlothian; biomass plants in Grangemouth to container terminals in Fife; fish farms in Orkney to housing developments in the Cairngorms National Park – Scotland is full of large-scale, complex and controversial plans.

The communities that are affected often feel under threat but, as many tell us, they feel no-one is listening.

What course of action can communities facing contentious developments take to raise their concerns, to voice their opinion, to meaningfully influence a decision that will not only irrevocably change their own lives, but also that of their children, grandchildren, their community and environment?

There is growing evidence that communities feel that they have no voice – that the planning system, overhauled 8 years ago is not providing them with the means to challenge, scrutinise and debate decisions about developments. Communities affected by the developments listed above have invariably found that the public engagement which was promised under the planning reforms is woefully inadequate. In recent years, this feeling has, arguably, been reinforced by the Government’s commitment to ‘sustainable economic growth’ which posits development as a key public good – effectively reducing the role of democratic deliberation in determining what type of development is, or is not, in the public interest.

Despite the apparent opportunities for the public to get involved in planning decisions at an early stage, for example by commenting on a local development plan, or participating in a pre-application consultation, there remains a glaring inequality between the rights that are afforded to the public and the rights that are afforded to developers.

Under current planning rules, if a mine, power station or large-scale housing scheme is rejected, the developer can appeal the decision. If the same development is approved, the nearby community have no right to have the decision reviewed, no matter how good their arguments may be.

In other words the public have no equal right of appeal.

A man scratching his head looking confused

Many of those affected by controversial plans find it hard to get their heads around this blatant inequality.

“It is incredible that in a democratic society no member of the public, even those most badly affected can appeal against the grant of a planning permission, no matter how strong the grounds for appeal may be” says Bill Frew of Canonbie Residents Association who are opposing plans for unconventional gas in their area.

Today, Planning Democracy launches a campaign to rectify this omission. They are asking MSPs on Holyrood’s Petitions Committee to consider the case for equal rights of appeal for communities in planning decisions. The need for this petition comes from the strong feeling of injustice among those communities in Scotland which have been affected by decisions to grant planning permission but who have had no right of appeal against these decisions.

We at Planning Democracy, believe that this imbalance represents a flaw in the Scottish planning system, a flaw which should be resolved. We are therefore petitioning the Scottish Parliament call on the Scottish Government to commission a review of rights of appeal in the planning system with a view to providing greater equality.

Where does the ‘developer only’ right to appeal come from?

The current inequality in rights of appeal can be seen as a historical artefact. The Town and Country Planning (Scotland) Act 1947 created the foundations of the modern planning system. This legislation removed landowners’ right to develop their land in whatever way they chose, instead requiring them to seek permission from the Local Authority. This significant change in rights of landowners was associated with a right to appeal against a decision to refuse planning permission.

Since 1947, much has changed. We now recognise that development should serve the public good and contribute to sustainable development. The requirement for public consultation in the planning system recognises the fact that people who may be affected by a development have the right to be heard. We believe it is now time to properly balance people’s rights and provide the right for people who are affected by a development to appeal a grant of planning permission.

What difference would Equal Rights of Appeal make?

Improve public engagement and decision making. At present there is only a very weak link between public input and decision-making. There is little incentive for developers or local planning authorities to respond to issues raised by the wider public as there is no effective mechanism for holding them to account if they do not. Equality of appeal rights could be critical here, adding the ‘credible threat’ necessary to ensure that community views are more assiduously sought and listened to. This would improve engagement earlier in the planning process and could radically change the existing culture of participation in planning.

Evidence from the Republic of Ireland and parts of Australia suggests that appeals brought by communities enjoy a high success rate. This suggests that they often lead to better decisions, providing a mechanism for correcting weak approvals where currently it is only weak refusals that are corrected through the appeals process. This should also lead to increased rigour from applicants and authorities earlier in the process.

Frank Hay of Sustainable Shetland says “In the case of Sustainable Shetland versus Scottish Ministers over the consent of the Viking Windfarm on Shetland, an appeal process would have been a far better alternative to the continuing expensive court actions. The legal route was the only possibility for Sustainable Shetland to challenge a highly questionable decision to consent the windfarm without a local Public Inquiry.”

Promote a plan-led system. One qualifying condition for a right of appeal should be if the grant of planning permission is a clear departure from the Local Authority’s Development Plan or the National Planning Framework. The Government has ‘front-loaded’ consultation to encourage people to get involved in shaping development plans. People who have made the effort to do so expect that planning applications are only granted when they are in line with the plan. This offer of certainty is the only reason why people would make the effort to engage at the start of the process. Unfortunately, our case study research has examples of communities who have done everything asked of them in good faith but who have ended up having to live with an inappropriate and damaging development in their community which they had successfully opposed in the local plan. Equal rights of appeal would help to provide an incentive for people to get involved in development planning and promote a plan-led system.

As Ann Coleman from Greengairs said “We did everything ‘by the book’, followed all the appropriate procedures and yet we are going to be worse off than if we had never engaged with the Development Plan process, while the developer completely circumvented the process and the planning system supported approval of the application”

Provide an alternative to Judicial Review. An equal right of appeal would give members of the public a reasonable route for an incorrect decision to be examined and, if necessary, revoked. This would address the unreasonable costs of the only action currently available to the public – Judicial Review – as well as provide a method whereby the QUALITY of the planning decision can be considered, as opposed to only the PROCESS which has been adopted. (Judicial Review can, in most cases, only consider the process.)

As Gus Jones, convenor of the Badenoch and Strathspey Conservation Group, says: “There is something very wrong, when despite our serious concerns about the impact of 2000 houses in the Cairngorms, we cannot appeal the Park Authority’s controversial plans. Instead we have had to go to court, at enormous expense and anxiety and even then we cannot present the real case, because the courts won’t examine certain vital evidence. We strongly support a campaign that would give a more accessible, less costly and more fairly balanced route for deeply damaging planning decisions to be re- examined”

Do you agree with an equal right of appeal? What difference do you think it would make to Scottish planning decisions?

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28 Responses

  1. Avatar Alistair Stewart says:

    I heartily endorse and support your initiative. As a member of a Community Council I recognise and share many of the frustrations expressed by the community groups that you quote. An equal right of appeal might not be sufficient to completely level the playing field but it would certainly help

  2. Avatar Maria Montinaro says:

    Agree with and support100% equal right of appeal. I sincerely hope we can join together to make it happen – as soon as possible.

    I attended a site visit yesterday 1/9/2014 re an application by Dart Energy to drill an exploration borehole at a new site in Falkirk close to Skinflats.
    Grangemouth including .Skinflats Community Council is now dissolved following the Public Inquiry into the biomass plant- a travesty of justice for local communities where community councillors rightly wondered following the decision – “why bother – what’s the point”. With no community council and no one having been neighbourhood notified as outwith 20m the letter of the law has been fully complied with but not the spirit in terms of community consultation.

    Since the Public Inquiry into the first commercial production of unconventional gas by Dart Energy in Falkirk & Stirling has yet to be decided isn’t it prudent that no further exploration/testing should be carried out until a decision is made. If the concerns raised are upheld by the Reporters and the application refused the commercial production of unconventional gas in the Falkirk area may be in question.

  3. Just to add to my previous comment – if the outcome goes against Falkirk & Stirling Councils and local communities, then communities across our densely populated Central Belt and in Dumfries will need equal rights of appeal to try to protect themselves following the 14th round of PEDL licence sales by DECC and given that no mandatory buffer zones have been implemented through the new Scottish Planning Policy. The precedent will have been set. Councils stretched to provide even basic services and community councils run by volunteers do not have the capacity or resources to challenge multiple planning applications from multi national corporate organisations. As for residents and community groups they are counting on the “burn out” factor.

    Member Concerned Communities of Falkirk

  4. Avatar Lisa Sibbald says:

    Local residents are trying to fight a decision by the Reporter regarding Lutton Court in Edinburgh. The Council planning sub-committee unanimously rejected this application for student housing, but the developers appealed to the Reporter, who subsequently completely ignored all of the Council’s guidelines and the many objections from local residents and businesses, and approved the plans. We are now trying to get the Council to fight this with a judicial review. If they can’t or won’t do this, there are local residents who are willing to do this. Any advice from individuals or groups who have successfully challenged the Reporter’s decision would be much appreciated.

    Save our Southside

  5. Avatar Brenda Herrick says:

    I completely agree that the system needs changing. It has never made any sense that one side can appeal and the other cannot. Few people can get involved in Judicial Review. There will never be a level playing field since the developers will always have almost limitless finance while local people have to spend months trying to raise funds, but the right of appeal for both sides would go a long way.

  6. Avatar Anthony Dalton says:

    Completely agree – the present system is out of date & demonstrably undemocratic. Unless government is just paying lip-service to public & community involvement – the cynic in me says this is indeed the case – then level the playing field as a starter.

    • Avatar iainpd says:

      Thanks Anthony. Our case research suggests the last planning reforms eight or so years ago which aimed to improve community involvement are not working – people don’t feel listened to.

  7. Avatar Christine Metcalfe says:

    This is just the tip of the iceberg unfortunately – and well done planning democracy et al for recognizing and addressing the problem. A means of gaining more information on just how far related issues are also involved can be found by visiting http://www.windsofjustice.org.uk The section on the UK & breaches of the UN’s Aarhus Convention is particularly valuable as are Open Letters to DECC. SPP3 needs a concerted reaction from everyone who has recognized the dangers it presents in its current form.

  8. I would definitely support this: the public absolutely needs a right of appeal.

  9. Avatar Steve Hawkins says:

    Great idea to get a new movement going, in time for independence and a new start for Scotland. Wish we had the same opportunity in England!

    Unfortunately, even with your right of appeal, you have to consider who you are going to appeal to. As it stands in the UK, the whole planning system is not worth the paper it is printed on, and the only people who really benefit from it are politicians and lawyers: successive governments have each striven to make the planning system into a weapon to use against the public, to enforce developments, when the system was, as you note, initially introduced to control development and make sure that any that did take place was to the highest standard and in the right place! The system has been completely turned on its head, and is now entirely run for politicians and their developer pals.

    When you appeal, you will, in most cases, be appealing to the very people who are the most avid promoters of development: your council. However unfair this might seem, the European Courts have determined, that, because they have been elected in a ‘democratic’ election, your council/planning authority, is, by definition, a ‘fair tribunal’. In effect, they can make any decision they like, and all the planning guidance and environmental constraints, matter not one jot to them, and most of the people who make the decisions won’t even have read the local plan, let alone the planning guidance: some won’t even know where the places they are forcing development on, even are.

    So, your real campaign should first be to ensure that the new Scotland gets a real democratic electoral system, free of the malign influence of entrenched political parties and their anti-democratic system of whipping out all dissent from the part ranks. Once your public do really have elected representatives of their own, then, you might get a chance of having a fair body of people making your planning decisions, and you would probably find that you rarely had to exercise your vaunted new right of appeal.

    The very best of luck to your campaign, but do make sure you do your best to get at the root of the problem, or you will just create one more slow and expensive stage you have to go through before you end up in the courts just as before.

  10. Avatar Ann Coleman says:

    In the main I agree with Steve, its a complicated issue that will require a change in political thinking based on equality and inclusion for the public in all aspects of decision making including policies and legislation. The Government had the opportunity to change things at the last review of planning legislation but instead of achieving one of the stated key aims of “restoring public confidence and trust in the planning system” they failed miserably, as community representatives who contact PD have demonstrated. I’d like to make it clear that community representatives who participated in the consultations and Round Table events relating to the reforms, expressed concerns that “early engagement” would not “negate the need for TPRA” and we have been proved right. It’s time politicians showed the public respect by including us as equal partners and accepting that we have the relevant skills and experiences to inform the best holistic and sustainable development options for our local area. Politicians need to get the message that developers don’t vote them into power – the public do!!

  11. Avatar Christine Metcalfe says:

    This is an excellent initiative and should receive widespread support. We will have a printout available to view at the following regional meeting : ‘The first Scottish Rural Parliament will take place in Oban on the 6-8th of November.’ Prior to this event a regional meeting in the Corran Halls is to be held on the 17th September from 12-4pm. We are told that the purpose of this meeting is firstly, to provide information about the Scottish Rural parliament for wider dissemination. Secondly, to help identify the most important issues within Argyll and Bute, which would benefit from being addressed at a national level and direct to Government. Issues around wind power probably give the best example of how the wishes of communities are being overruled and ignored. Clearly not only Argyll & Bute communities suffer in this way. For those wishing to update their knowledge please visit http://www.windsofjustice.org.uk

  12. Avatar Rae Leigh says:

    I fully support your efforts to gain equal rights for people fighting developments. After 4 years of fighting numerous wind farm applications I ciompletely understand public apathy when people feel they have no real power to change things.

  13. Congratulations on this initiative. We have tried to fight consents to windfarm developments through JR which were consented on appeal to the Scottish Government. Just as you have stated the consents breach all local development plans and go against all local democratic views. The threatened soaring costs of the case, the uncertainties of no guarantee of a PEO and technicalities introduced by the Scottish Government meant we had to step back from a good legal case (having already spent £10,000). see http://www.windsofjustice.org.uk

  14. Avatar Maureen Bell says:

    Completely agree – developers get so many opportunities yet communities only get one chance. It should be equal for all.

  15. Avatar George Chalmers says:

    Good luck with your petition.
    It will be interesting to see how the planning establishment react to PE01534.
    How will the RTPI and HOPS address the issue?
    Will they enthusiastically embrace and endorse the aim of this petition which is of course only asking for natural justice. I may be wrong but somehow doubt that very much.
    Perhaps a little too democratic for the powers that be in Government but I look forward to the Local Government & Communities Directorates response in their justification in attempting to maintain the status quo. The developer has the right of appeal why shouldn’t the people be entitled to the same rights?
    Until recently like the vast majority of the population I had no knowledge or for that matter any interest in the planning system in Scotland. My interest was triggered when two planning applications for one development adjacent to my property were raised in 2010. Why two applications for one development I asked myself and the local planning authority? The local planning authority was somewhat reluctant to enter into a constructive dialogue on the issue. Had I inadvertently encroached into an area of activity that was restricted to a particular small group of bureaucrats?
    The result of these two applications is PEO1518 which went before the Public Petition Committee on the 17th June and will be further considered on the 28th October.
    Having read numerous publication and consultation documents whilst preparing my petition I formed the opinion that the planning fraternity view the public as an inconvenience and of a planning system designed purely for the benefit of developers that is far removed from the people.
    PPA-110-222 & PPA-110-2224 give a good insight of our planning system in action. A system where regulation at “the heart of the modernized planning system” can be easily avoided by developers and guidelines totally ignored by planners and developers alike. What other business would be allowed to operate in such a manner?
    Public consultation although much lauded within the veritable raft of planning documentation is treated as no more than a tick box exercise as positive public consensus is not a consideration or requirement when it comes to planning. All the evidence shows that the views of the people or indeed community councils are given very little or in the vast majority of applications no credence when it comes to the planning decision making process.

  16. Avatar Helga Rhein says:

    Of course we all need equal right of appeal

  17. Avatar Helga Rhein says:

    Equal rights for all. All of us first

  18. Avatar Ted Ditchburn says:

    Support the stated aims..and indeed the wider implication of groups like yours at Planning democracy that the *system* is broken and the more people add their voices to attempts to use the internet to create not only alternative voices, but ways to build alternative systems of accountability in a consensual way.

    A couple of years ago I was peripherally involved in a planning issue that two very dedicated and selfless people, Ashley Lloyd and Alistair Macintosh of Edinburgh, took all the way to the Aarhus Convention Complaints commission at the United Nations in Geneva.

    The complaint was about the failure of Edinburgh Council to provide meaningful access to justice for ordinary people through using *consultation* as a tick box exercise purely to canalise opposition or any criticism at all down pre-conceived routes as they progressed the scheme to whatever destination had already been decided.

    The confusing process, and shifting locus of responsibility, typical of planning processes and many other similar situations, meant that although the complaint was Edinburgh council were in effect fiddling data to support a controversial project (Yes, it was the Tram) that had the data been known cpould very easily have been judged impossible to proceed with..the actual *defendant* in the dock was the UK Government in the shape of DEFRA, the department responsible for air quality…even then two or three years ago an issue largely deemed ignorable by the planners and councillors in Edinburgh…obviously not so now thanks to VWs conciousness raising on the topic.

    DEFRAs *Top legal brain* , hired in at no expensive spared of course, was forced to the desperate argument that the UK Govt (Defra) was not responsible in the matter because they DID have good controls in place to ensure meaningful public engagement and honest consultation in which criticism would have force and if not refuted, would deserve to be embedded in the decsiion making process and not kicked into the long grass to moulder as the project careers ahead fuelled by the usual hype and spin.

    And that it was not THEIR failure if a bunch of incompetents or perhaps malfeasant planners and councillors chose to negate the rules.

    Happily , the Aarhus Convention complaints commission laughed that one out and a helpful advocate from an outfit called Earth balance lent his name (unpaid) to the view that carried the day…that where a system was in place, but it failed, and yet the failure produced no redress against the bad outcome..then it was merely a tick box system, fits for media department press release hype..but not for the real world duty of providing fair outcomes to legitimate challenges to a bureaucracy or administration.

    The UK government , having had the attempt to have the case thrown out without hearing as it were, basically then abandoned any defence and the commission deliberated before producing a judgement that stated in democracies it is not enough to engage with people in some *consultation exercise* without providing *equality of arms* in the sense of not only having to provide relevant data (without the need to use FoI) but provide it tomeously..ie in the modern world that means instantly…AND with an accompanying explanation of *what the data means* so groups who may not have a very competent physicist (in our case happily) amongst their number (or indeed in other cases, chemist, statistician, or similar) are given data in a form that lies beyond the skills of ordinary people to interpret— where the organisation effectively drowns the protest in unintelligible data.

    That this was a remarkable *win* against enormous odds was nice… did it lead to a mindset change in Edinburgh….the fundamental point being that despite preconceptions of great counter-intuitivity, the Edinburgh tram project, as designed (because of its enormously dislocating effect on traffic flows) actually increases both NO2 (NOX) AND PM 2.5 to 10 (Particulate matter) levels across the city as a whole…*cleaning* pollution from showpiece central streets but not only dumping it in hundreds of non-showpiece residential streets..but increasing the amount as it does so.

    Because of the complexity of the process, and the determination by the Council to ignore the facts and implications, despite the win, the city and it’s population look likely to continue to lose, and see the effects of defeat increased should, as the council wish to see, more tram gets built.

    They don’t take any notice of the UN so they aren’t going to bother about a few residents…. just so long as they can keep on spinning..and keep planning process *complicated* enough for the mass of uncommitted ordinary people to keep to the default position of ‘trusting the council’ because after all…why would they tell fibs about something like this??

  19. Avatar Carrie Drummond says:

    I wholeheartedly support this campaign. For too long developers have been allowed to run roughshod many times to the detriment of local communities. We must do everything in our power to halt fracking and unconventional extraction. The Scot Gov survey results speak for themselves. 99% of people do not want this and they need to be listened to, after all we will have to suffer the environmental and economical fallout afterwards.

  20. Avatar Mary Doris says:

    I totally agree with the contents of the article above. Many of the residents in this community of Plains, after years of strongly opposing major surrounding developments feel so disempowered that apathy has set in. You can only shout so long with no one listening before this happens.

    I don’t think Equal Right of Appeal will totally change the situation but it is a good start in giving communities hope.

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