The community council are coordinating the local citizen’s under the Residents for Responsible Development banner and are keeping a daily blog on proceedings – read about it at www.clpc.org.uk/id11.html

They are raising their own funds for legal advice and attending the inqury every day at their own expense. It’s amazing dedication from people with reasonable demands and a level head who want to have a fair voice in deciding the future of their area.

You can read the background and donate at SOS Limekilns or read our case study on the background planning process and public involvement.

The bridge has been mooted since the 1970′s but in 2006 a Scottish Government Reporter recommended the development be removed from the local plan. Since then however the council have continued to support the bridge development to ease traffic congestion and provide access to the city centre for 7,000 new houses planned to the north of the city. In March 2010 the council granted permission for the crossing through Tillydrone, one of the poorest areas of Aberdeen.

What has been the role of local people?

The community councils and residents around the proposed bridge have been involved in consultations over many years and are campaigning to stop the bridge under the Donside Crossing Communities Alliance.

They argue from local experience that the bridge will not solve traffic congestion but just bring more cars into the city centre and move congestion inwards. They have proposed alternative plans to speed cars around the centre including a flyover for a congested major roundabout.

They also argue the bridge will increase traffic and pollution to an unacceptable level and sever the Tillydrone community in half; all for the benefit of wealthier areas to the north where the new housing is planned.

Resident’s feel like they have been sidelined. They felt they were “on our own” when campaigning and not supported by political representatives.

During Planing Democracy’s visit to Tillydrone people pointed out they were unpaid volunteers who were expected to participate in a system where other the stakeholders were paid professionals.

They said there was “no time to draw breath with structural plans, the local development plans and then application” in quick succession and that “Neighbourhood Community Action Plans, which then just disappeared, took the attention away from structure plans and local plans”. There was “so much information – we can’t cope”.

Residents participated in the structure, local and application consultations but feel like the major decisions had already been taken. Not least because the bridge was a flagship policy for the ruling political party. One resident said the process was “political manoeuvrings, not planning!”

They called for the Government to ‘call in’ the project and decide the application centrally. People felt that taking the decision “outside the castle walls”of the local authority was the only way to ensure local politics were kept out and planning considerations were given priority.

A ‘call in’ did not happen however and the bridge was given the green-light in March 2010 by Aberdeen Council. The development requires the ‘compulsory purchase’ of land that’s part of 60 people’s properties and sections of registered common good land.

Objections to these compulsory purchases from local residents have triggered external scrutiny via a public local inquiry that was heard on 29th November in Tillydrone. When the decision is made we will publish an update.

Politics in planning?

Is politics in planning a problem? Though they may involve a technical element, planning decisions are also always highly political, raising value-laden questions about the kind of places we want to live in now and in the future.

To make good decisions in this political sphere there needs to be debate on equal terms. Inequalities of access to various resources and power needs to be challenged to provide a level playing field between stakeholders. And at the start of this debate the outcome cannot already be decided, the participants have to be able and willing to change.

Clearly local authorities need to be able to support good infrastructure projects and plan the future of their area but the best plans are influenced from the bottom up as well as from top down. In Aberdeen and Tillydrone it seems inequality rules and bottom-up influence is being trumped again.

None of these three terms satisfy me. Above I’ve suggested ‘communities’ is best but it rankles. It sounds like government-speak. Hundreds of policies and consultations have come and gone focussing on community but my gut feeling is that nothing has fundamentally changed in the power relations between (and within) third partners, developers and planner authorities.

For the past year I have been writing case studies and contributing to Planning Democracy’s vision for the Scottish planning system and how we might get there. Every time I come to refer to the people who give their time and effort to participate in local decision-making I stumble. They (we) are normally referred to as communities but I’ve already said this doesn’t work for me – so I’ve always plumped for the least bad ‘members of the public’. When describing our conference happening this April, which will specifically be looking at the experience of this group of people, we even fell back on describing it as ‘from a community perspective‘.

Today I was fed up and thought we must be able to do better so started a mind-map, ok a doodle, on the subject. Turns out we can, it’s so blindingly obvious – ‘citizens’. Why haven’t I thought of this before? I must be slightly dimmer than I thought!

Why do I think using ‘citizens’ to refer to this group is good? Well for me at least it evokes the idea that members of society have certain rights and responsibilities – citizen’s rights.

Many thinkers across the world see a rights-based approach to participation in local decision-making as the only way to successfully challenge existing power structures and enable a fair process. In fact the Scottish government’s white paper on planning reform spoke of people’s ‘right to be involved in a fair and transparent system‘ before being watered down in the final legislation (I’m planning a future blog post on this).

Planning Democracy also talk about an ‘active democracy‘ – a combination of participatory democracy, where people are directly involved in decision making, and representative democracy, where elected officials make decisions. The origin of this concept here is ‘active citizen‘ with its many interpretations.

I would contest that people do have a right to be involved in a fair and transparent system and centrally that’s what Planning Democracy exists to promote. I think ‘community’ or ‘member of the public’ are useful terms is some cases but that ‘citizen’ (try not to think Kane) is more suited to our vision of rights-based participation in local decision-making.

Some residents have now formed the Lomond Quarry Action Group to see what they can do to sort out problems they have been experiencing and to address their grievances with the quarry operators and Fife Council about the situation they now find themselves in.

Minimising engagement

The quarry opened in 1981 and is currently operating on planning permission approved in 2005 which allows sand and gravel mining until 2015.

But in January 2010 the mine was given further permission to expand northwards, reinstate the site with a lake, blast for dolerite rock and operate for a further 20 years – until 2030 or possibly later.
The quarry’s planning application was made one month before new regulations made it a legal requirement to hold a pre-application consultation (PAC) on major applications such as this. The Scottish Government encouraged developers to comply with new system before the new regulations came in to embrace the new ‘culture change’ by improving participation at an early stage of the application process.

However it appears the quarry operators have kept to a  minimum their engagement efforts and did not carry out a pre application consultation. It appears the quarry operators have done the legal minimum to engage or include local residents in its plans, mirroring the experience of residents in in Rosyth.

Blasting in our backyard

The quarry started test-blasting dolerite (a relatively hard rock) in May 2011 which it plans to use to improve the quality, and therefore profitability, of its sand and gravel product. Prior to the dolerite being found the quarry was used only for sand and gravel extraction, which does not require blasting.

Before the first explosion many residents had no idea blasting was about to commence. It appears there was no attempt to warn them. When the Council asked the operators to inform residents of the blasting schedule they apparently refused.

Residents are worried that biggest impact will be further damage to local buildings as a result of the blasting. What do people want changed? I asked one resident who said “we are fearful for our houses and want the blasting to stop”.

Roads without consent

The council did not give consent to upgrade a dirt track which runs past a children’s play area on Common Good land to a concrete road, and yet the work has been carried out by the operators. The operators have been told they must upgrade the road to make it safe before planning permission to operate the quarry can commence. This upgraded road passes within two meters of a children’s play park and the improved surface allows the trucks, and other vehicles using the road, to travel significantly faster. Roughly 80 trucks ply this route every day we are told.

Residents feel that the work is progressing without the correct checks and balances being put in place and the operators are flouting the law by carrying on without the required road construction consents which are there to ensure that roads are constructed safely.

One member of the Lomond Quarry Action Group complained to the Ombudsman because of their concerns about public safety and the illegality of the road. The Ombudsman’s report said “It is clear from the evidence presented to me that the Council accepted the works carried out by Skene were illegal and that Skene proceeded in the knowledge that the work was illegal”.

In conclusion the Ombudsman found that the council had not ‘delayed unreasonably‘ in dealing with the ‘difficult‘ situation. However, well over a year later, although Skene have now obtained road construction consent for their new road, it appears they have still failed to comply with the requirements of the consent or build it to the specifications they promised.

Hours of operation

The planning consent given by the Council has attached to it certain conditions. One is that the hours of operation of the development shall not start until 8am. Residents report that trucks arrive empty at the site much earlier. The conditions of the planning consent are not being adhered to and it seems that no-one is willing to make sure they are enforced.

Local newspaper Fife Today reported in September 2011:

There have been ongoing complaints concerning the legally agreed operating times at the quarry.

Whilst the [Ombudsman's] report decreed Skene had no control over vehicles approaching the quarry before 8am, loading of vehicles on site outside agreed operating hours did indeed constitute mining operations.

The Ombudsman’s report was critical of the Council’s planning enforcement officer, Eddy Thomson, who was asked to clarify the meaning of ‘operations’ as far back as February 2010. The report concluded: “I do not feel that Mr Thomson’s responses addressed [the complainant’s] issues raised”

It added: “I was presented with no evidence to suggest that the Council investigated whether any quarrying works were taking place prior to 8am.”

Mr Thomson has since retired from his role at the Council and is now employed by Skene Group as their Public Liaison Officer.

In light of this the Ombudsman also made a recommendation “That the Council clarify their interpretation of what constitutes ‘operations’ at Lomond Quarry.”

Legal threats

Five weeks after the formation of the Action Group its chair received a letter from Skene’s lawyers threatening legal action. It seems unfortunate that Skene has made little attempt to facilitate a better relationship with local residents and has instead resorted to potentially threatening behaviour in its dealings with the group. So far there has been very little/ no communication from Skene about its operations, for example they still do not inform residents of when blasting is going to happen, despite visits from the Health and Safety Executive asking them to do so.

A trust fund is set up through a planning agreement for community benefit but Skene’s legal threat has only resulted in a lack of trust between the quarry operators and those rsidents who are forced to live with the impact of its operations.

Action Group

The Lomond Quarry Action Group are actively seeking to improve the situation to ensure that Skene comply with planning conditions for times of operation and road safety and to stop explosions at the quarry damaging the property of the people who live nearby. They want to see the council actively ensuring that these conditions are enforced, making their lives and houses significantly safer.

CAJE outline their concern that the judge took a “strikingly narrow interpretation of consultation” and that the costs of taking the case to court were “extraordinarily high“.

CAJE includes a number of leading environmental NGOs in the UK including WWF, Friends of the Earth, Environmental Law Foundation, Greenpeace, Capacity Global and the Royal Society for the Protection of Birds.

Click the letter below to read the full document.

The report was an assessment of the 2006 reforms and modernisation of the planning system. To do this assessment Audit Scotland had their work cut out for them, the planning system is many things to many people and a complex beast.

When you are assessing something the initial job is normally to work out some ‘performance indicators’, in other words, get an idea of what good performance looks like.

As it turns out one of the main conclusions of the report was that there is no effective ‘performance framework’ for measuring the quality of planning, and one of their main recommendations was that one should be created:

“Many aspects of development management are not currently monitored, assessed or reported, for example pre-application activities, community engagement and the local appeals process. Performance should be assessed across a broader range of measures that gives a more comprehensive view of how the planning system is performing.”

Audit Scotland go on to suggest a possible draft framework which in includes a “mix of quantitative and qualitative measures” including:

“Extent of, and quality of community engagement – to what extent were communities involved in contributing to applications affecting their local area and what effect did this have on the final outcome?”

The last clause “what effect did [community engagement] have on the final outcome?” is key.  You can have all the public engagement in the world but if it is not affecting the final decision it boils down to just a tick-box exercise.

It’s heartening to see Audit Scotland promoting meaningful participation.

Another recommendation that kept cropping up was for councils to “ensure processes are in place to enable and support better and more creative engagement with community councils and the wider community”.

Its inclusion suggests there was concern within Audit Scotland that councils (and by extension developers) are not adequately engaging the public in decision-making.  Our recent case studies chime a similar chord.

You can read the report, and Audit Scotland’s other recommendations, on their website.

This case study focuses on Douglas Valley in South Lanarkshire which has four operating open-cast coal mines plus two undergoing restoration. The latest, Mainshill open-cast coal and fireclay mine, was granted planning permission in February 2009.

Douglas has a long history of major developments including 20 years of coal mining and there are many issues. In this case we have concentrated on one recent example in relation to the Mainshill mine planning process.

The Mainshill planning application and environmental impact assessment (EIA) repeatedly stated that coal trucks would not be travelling through Douglas village itself. Rather the traffic would go east to the Ravenscraig rail terminal.

The traffic impact and air quality assessments in the EIA were completed on this information. The responses to the consultation (from the public and statutory consultees like NHS, SNH and community council) on the EIA and planning application were prepared on this basis. And the planning committee granted permission for the development on this information.

“There will be no HGV traffic travelling through Douglas, and the routing of HGVs will not be through any sensitive residential areas” Mainshill environmental statement, p173.

However, since the opening of the mine this has not been the case. The operating company Scottish Coal has routed a significant number of coal trucks to the Killoch railhead, 27 miles west of Mainshill and through the village of Douglas. A 2011 traffic survey conducted by Coal Action Scotland found over 130 Scottish Coal HGVs passed through Douglas and Glespin in one day.

Mainshill opencast was granted permission contrary to the adopted ‘minerals development plan’. Because of this the council were required to notify the DPEA/Scottish Ministers. When this happens (under the new system) the DPEA must decide if they will determine the application themselves or to leave it up to the local authority. The DPEA decided leave the determination up to South Lanarkshire, in part because they were happy with the council’s consideration of the EIA and the assurance that trucks would not be routed through Douglas or other settlements.

“Council reports that no haulage traffic will pass directly through any communities or settlements” DEPA assessment report NA/SLS/059.

Douglas Community Council have complained to the local authority that the development was granted on the basis that no traffic would be routed through the village, which is in practice not the case. Normally situations like these are minimised through the use of ‘conditions’ that give permission for developments under certain constraints. However in this case the community council have been told that the only way to restrict traffic is through a legal agreement and not through the planning system.

The planning system appears unable to create a condition to ensure Scottish Coal transport the coal along the routes described in the planning application and EIA.

Had the current haulage routes been described in the planning application and modelled in the traffic impact and air quality assessments, different conclusions on the impact on residents in Douglas may have arisen and consultees who raised no objections may have decided to object. And had the impact on local communities been clear in the application this may have required the DPEA to decide the application themselves by public local inquiry providing important external scrutiny.

It is clear that trust in the planning system will be eroded when the information on which an application was assessed turn out not to be the case during operation.

In Douglas Valley, many residents have no faith or trust in the planning system after many years of feeling powerless to influence planning decisions and feeling that the coal mining industry will always be accommodated before local people.

The situation must change to rebuild trust in the system.  Douglas residents recognise the need for coal mining but they want to participate in a honest system where major developments operate on the basis on which they were granted.

View Open Cast Coal and Mineral Excavation, Douglas Valley in a larger map

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.

The court’s  judgement in relation to the judicial review brought by Marco McGinty against the designation of a new coal-fired power station and transhipment hub at Hunterston makes depressing reading for anyone interested in a democratic planning system or a reasonable hearing from the Scottish courts.

Whilst media coverage has focused on the development versus environment narrative, the true significance of the case for the planning of new infrastructure in Scotland is somewhat different. The idea of a national planning framework (NPF) is surely a good one, but the process for designating major development needs to be designed to ensure a rigorous democratic testing of proposals.

Hunterston was a late addition to the second NPF and not subject to proper public scrutiny, local people – those who have to live with the development – were barely aware of the issue until the developer began to prepare their application. By that time the NPF had established the ‘principle’ of a new power station so that only questions of detail could be debated.

In the judgement, the courts maintain that publication in the ‘Edinburgh Gazette’ fulfils the legal requirements to publicise decisions about such ‘national developments’. Legally that may be so, but practically it highlights how woefully detached the courts are from the realities of everyday life.

This judgement backs a decision-making process that has sought to minimise public debate. We would urge the Scottish Government to look beyond this ‘success’ and rise to the challenge of creating a more robustly democratic planning system.

The full judgement can be found here.

Public involvement helps to make the right decisions

The planning system covers a wide range of issues which touch on many different aspects of life. The granting of planning permission often involves consideration of big issues. For example a planning decision about an incinerator requires decisions to be made about what we should be doing with our waste – should we burn it? Put it into landfill? or simply create less of it?. Many planning decisions must grapple with complex problems that have multiple causes such as climate change, crime and homelessness and urban decay. These are not straightforward problems, they have no right or wrong solution, they are often political and value-driven not technical.

A strong democratic planning system can help to make sure that the decisions that are made are the right ones. An inclusive process allows decision makers to take account of differing opinions, values and world views. They have the chance to explore assumptions, question definitions, contest facts and findings and promote understanding of the issues. This kind of approach creates better understanding of the issues. It probably won’t lead to a perfect outcome, and there will still be winners and losers, but, ultimately, it helps to decide on the best available course of action, best for society, best for the environment.

It is more accountable

Democratic decision making means that every perspective is looked at, difficult issues are aired and discussed, and potential or real problems are addressed rather than hidden away. If the decision making process is open, it makes it easier for mistakes and problems to be identified and rectified,. Openness makes it more difficult for people to be manipulated by powerful interests. Ultimately openness is also more efficient. Decisions might sometimes take longer to reach but they are legitimate and the trust that is built through them results in co-operation and a willingness to tackle issues together.

It develops skills and understanding

Involving people in resolving the issues that we face as a society can be time consuming and expensive. However it also means that everyone learns more, people develop a sense of civic responsibility and come to better understand the reality of what can be achieved by decision makers. The knowledge acquired during a participatory process (one that includes people) generates new insight and helps people understand the changes that are required to resolve today’s complex problems. It helps to build a stronger society by equipping people with a fuller understanding of both government, and their fellow citizens.

It helps co-operation

Traditionally complex problems have been left to “experts”, or small numbers of influential interests who have claimed the authority to deal with them. But this approach has proven inadequate, their solutions have been simplistic and ineffective, they have often succeeded only in generating conflict. What is needed is a more co-operative approach, one that is able to consider a wide variety of different views, and solutions.

It encourages long term thinking

Our democratic system allows for regular changes in government, which can lead to a short term focus for policies. Involvement of people in decision making leads to a longer term approach, which often has benefits for the environment and society.

It makes our democracy more successful

Democracies are more likely to be successful if they include people in decision making. This creates better checks and balances on power, protecting people and the environment and making society stronger. This requires Governments to act as enablers as well as enforcers and regulators. Peace and harmony are far more likely to prevail in countries that achieve meaningful participation. Involving people in planning is one way that this can be achieved.

How people most often get involved

Currently the way most people get involved in the planning system is when a planning application is put in and people in the area close to the proposed development suddenly become aware of the fact that someone wants to build a house/factory/incinerator/windfarm or extension. This results in people being forced to ‘object’ to development if they don’t want it. So they write a letter of objection to the council and that may (or may not) be taken into consideration when the planning application is approved or denied (and only if the objection is considered a valid planning reason).

This is a very reactive way of doing things. It puts pressure on people to react hastily (because they have to respond before the decision is made) and often negatively (because they are having something potentially imposed on them that will change their lives and may alter their quality of life). It is often a very unpleasant introduction to the planning system and doesn’t encourage a positive relationship between the public and those required to make the decisions. The whole process is often also bureaucratic, and filled with complicated seeming jargon that is unfamiliar to people (many of whom have never come into contact with officialdom before). In short, the whole process tends to alienate people.

Community councils are bodies made up of local people who often have a committee that responds to planning decisions. Although they are more used to dealing with planning issues they are also required to react quickly in order to respond to planning applications. Many only meet monthly and yet have to respond within 21 days of an application which causes problems. As community representatives they have to make decisions for the community largely because the system doesn’t give them time to discuss the applications with the people they represent.

See how community consultation can be done in this award winning project on the Cowley Road, Oxford.