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.
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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