Hunterston in court – what’s it about?

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Sunset over water with two industrial cranes in backgroundPlanning Democracy believes important decisions like the building of a power station should be done fairly and openly giving local people the chance to influence what happens on their doorstep. The decision to build Hunterston power station near Largs bore none of these democratic qualities and has ended up in court this week as a result.

In a previous court hearing Largs resident Marco McGinty made the case that Hunterston should be removed from Scotland’s national plan, the National Planning Framework, because the power station proposals were never advertised in a local paper and no alternatives were credibly considered as required by EU law. Both these problems stemmed from the fact the power station was only added into the plan at the very last minute.

Marco has nothing to gain financially from this case (and risks losing thousands of pounds). Under Scotland’s ancient rules, having no direct financial interest in something meant you had no interest in it in law. There was no place for people who were defending something purely in the “public interest”, such as the environment which can’t go to court itself. Marco’s case has already helped to change that by successfully arguing that people who take cases in the public interest should not be faced with unlimited expenses should they lose. The first Protective Expenses Order for a public interest case was awarded, but at a very high level – £30,000 not including lawyer’s fees and no legal aid was available.

However the battle was not done. While one judge agreed the case was in the public interest (as opposed to Marco’s interest) and awarded the cap on his expenses; a second judge dismissed the whole case on the grounds Marco himself didn’t have enough ‘title and interest’ in the case.

Only a month later a Supreme Court decision changed the law after Friends of the Earth Scotland highlighted the fact people were barred from taking cases in the public interest.

The court hearing this week is an appeal. Marco’s lawyers will be arguing that his case is in the public interest and he has sufficient interest in the case (he lives nearby and makes almost daily bird-watching trips to the site) for it to be heard.

Lawyers will also be arguing for a reduction in the expenses cap. International law called the Aarhus Convention to which the UK is a signatory means there should be no significant financial barrier to somebody bringing an environmental public interest case. Marco’s expenses cap should he lose was set at £30,000 (not including costs estimated at £80,000). This is a significant financial barrier to just about anyone and so the court will hear arguments it should be reduced.

Both the right to take cases to court in the public interest and the related issue of removing financial barriers to doing so are important democratic principles to argue for. Despite sounding complicated and technical the Hunterston case raises key questions about opening up the ability of Scottish courts to hear public interest cases and who has the right to access justice.

If the unfair barriers placed in front of Marco can be overcome and his case heard by the court the Scottish court system will have been improved. We can then actually get to the details of the Hunterston case itself including the adequacy of its consultation and find out the court’s opinion on this public interest case.

Planning Democracy will be in court this week (Wed, Thurs, Fri) in support of Marco’s case, if you’d like join us click here for details.


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