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January 28, 2015

Planning bias against communities

A recent national poll asked to what extent people felt able to exert any influence of local decisions. The results were depressingly predictable – over 60% felt they had no control, yet 82% indicated a desire to be more involved. That suggests there are some pretty serious design problems in the systems that shape decision making at a local level. It’s a sentiment that the community of Canonbie in the Scottish Borders would certainly agree with. A toxic combination of feudal attitudes by the landowner, sharp practice by a developer and ineffective planners has left them reeling.



Planning Democracy

Residents of Canonbie, a village of less than 500 by the English border, are rallying against nineteen coal-bed methane (CBM) drill-sites that have been granted planning permission in their area. If developers go ahead this will be the first case of commercial CBM extraction in the UK.

Canonbie & District Residents Association (CaDRA) believes that granting planning permission for such a development without proper community consultation, or adequate assessment of environmental impact represents a significant injustice upon the local community.

Planning Democracy are committed to establishing and upholding the rights of local communities to have a fair say in planning decisions that affect their lives. When we heard about what was happening in Canonbie we decided to go and meet with Bill and Loraine Frew, owners of Byreburnfoot B&B and two of the founder members of CaDRA, to hear what they had to say.

Their story is a moving one, which highlights many of the failures of the current planning system to represent the interests of the very people it is supposedly there to benefit. In particular, this story highlights how the lack of community influence at the ‘business end’ of the planning system, can lead to local concerns being ignored if Local Authorities fail to meet standards of best practice, and why access to Equal Rights of Appeal is vital if planning decisions are ever to fairly represent the best interests of local communities.

Canonbie is a scenic riverside village and a popular salmon fishing spot on the Esk, a stone’s throw from the English border. Much of the property and land in and around Canonbie is owned by Buccleuch Estates – the UK’s largest land-owner – while many Canonbie residents are tenants of Buccleuch, or employees.

On their website Buccleuch Estates claim: “Achieving the right balance between economic, community and environmental objectives is crucial if solutions are to be sustainable”[i]. However, their ability to balance these objectives has recently been called into question. During Buccleuch’s partnership with first Greenbank Energy Ltd, and now DART Energy Ltd it seems the local community of Canonbie feel that they have been kept in the dark, while the local environment has been largely ignorePlanning permission was granted to Greenpark Energy Ltd for the first site, way back in April 2008. This decision was made by elected councillors on the Area Committee, and an Environmental Impact Assessment (EIA) from the Scottish Environmental Protection Agency (SEPA) was not required.

However, this site, on this date did not explicitly have planning permission for extraction. Instead it had permission to carry out: “FORMATION OF BOREHOLES AND WELLS FOR THE APPRAISAL, EXPLORATION AND DEVELOPMENT OF COAL BED METHANE” ‘Development’ here is, perhaps deliberately, ambiguous.

The following January Greenpark hosted a public meeting with the community of Canonbie. Along with many other local people, Bill Frew was in attendance, keen to learn about development in his local area, and came away understanding that the proposed development was for exploration only, and at only one site -both, at this stage, true.

However just over a year after receiving consent for the initial drill site, Greenpark submitted a further eighteen applications in two batches[iv], with no further consultations.

These applications were not considered by a planning committee. Instead they were handled by un-elected planning officials under delegated authority, with no real public scrutiny at all.

Planning permission for all eighteen sites was granted allowing:


A very different picture to the one presented at public consultation, and an astounding decision to take under delegated authority, especially when there are no precedents for CBM extraction in the UK, and (at the time) no specific planning policies in place to cover it.

As if this wasn’t alarming enough, it seems that planning permission was being granted for something that is literally impossible, as CaDRA explain:

“extraction cannot happen at any individual site, but requires physical linkages between sites, collection of gas at “hub” sites, and onward transmission to a centralised gas treatment and pressurisation plant. For extraction to be implemented, a network of linked sites, or “gasfield” requires to be established.” [vi]

CaDRA have stated that this “gasfield” will even require flaring stacks.

The fact that extraction is included in these planning applications means this isn’t nineteen minor developments – it’s one massiveone. So why all the individual applications if in reality it’s one development? Well, though we can’t make assumptions as to the motives of any individuals or organisations, the effect of this decision was that it avoided ‘Major Development’ status and allowed the developers to obscure the cumulative impact of what they were planning.

Scottish Planning Law requires that any development over 2 hectares counts as a Major Development, and any Major Developments, by law, require a pre-application community consultation.

Indeed DART made almost identical applications for CBM development around Airth. These were handled by Stirling and Falkirk councils under delegated authority for exploration only. Both Stirling and Falkirk treated subsequent applications for extraction at these sites as a “Major Development”, and the applications have gone to appeal. This is the only other example of CBM development in Scotland, and due to major development status it required a pre-application consultation.

This requirement for Major Developments is supposed to ensure that no large scale development ever makes it as far as application stage without the community affected having already had a chance to provide input – part of the Scottish Government’s commitment to the ‘frontloading’ of community input.

Greenpark never did an adequate pre-application consultation. Instead in January 2oo9 they held a ‘Public Exhibition’. Attendees at this exhibition came away believing only one site was being considered, and for exploration only. As such the community were not adequately informed about major development in their area, or able to have their concerns about it heard.

When DART Energy Ltd took over Greenpark, they ran a further ‘public exhibition’ regarding their plans for the site. Materials from this event briefly mention the nineteen sites DART already had full planning permission for, but it is clear that the focus of the event was on their new plans for a ‘Twin Drilling’ technique (See Figure 2). It seems that subsequently these plans have been abandoned as no applications for this technique were made. Once again the community had no opportunity to voice their concerns regarding an enormous development, many of them remained unaware of.

Understandably, many in the local community were left very confused and concerned as to what was actually going on. It was at this stage that the Frews decided to scrutinise the proposed plans via e-planning. This was when they uncovered the true scale and nature of the development, and confirmed that one of the drill sites was about 300m from their home and holiday business.

When they realised the true extent of the plans, they were incensed that this could happen without the community even knowing about it, let alone being given a chance to have their concerns voiced.

At this point they approached their local Community Council, and were publicly assured that only exploration was approved, although this was subsequently proved inaccurate. That at this late stage even the Community Council were unaware of the true nature of the development which already had planning permission, shows how inadequate any consultations held by the developer truly were.

The Frews then urged the Community Council to invite an environmental group, such as Friends of the Earth Scotland to explain concerns about onshore drilling. After a series of public meetings to discuss the developments, when the community became increasingly alarmed, a group of concerned residents formally organised to share information. Having identified significant local opposition to the plans from those who attended the meetings, the group actively set out to inform the community; circulating nearly 500 newsletters throughout Canonbie with a map detailing the drilling sites which already had planning permission (see Figure 1). This was followed by a door-to-door survey of 362 local residents which found that 324 (89.5%) were explicitly opposed to the developments, while only 11 (3%) were in favour.

Local residents concerns included: potential health impacts; risk of air, water and soil pollution, as well as pollution from the flare stacks required; the impact of noise, traffic, dust and dirt on the local community; loss of agricultural opportunities; the threat to other spheres of economic activity, including significant visitor activity linked to the wild Atlantic salmon fishery, and of course the fact that for many residents this was the first they had heard of the true nature of the plans.

With these concerns in mind, Canonbie Residents Association (now CaDRA), and other supporters – including the local Conservative MP, David Mundell – called on Buccleuch Estates to: “fundamentally review these proposals, and offer assurances to local people that they will not permit DART Energy to utilise the existing Planning Consents.” They further called on them to “enter into meaningful discussion with local groups, businesses and individuals, and in partnership with Dumfries & Galloway Council identify alternative, sustainable, economic development opportunities.”

Needless to say, Buccleuch Estates did not answer this call.

Buccleuch Estates have considerable local influence, and this should not be underplayed in cases such as this. As mentioned above many Canonbie residents are tenants of Buccleuch, including tenant farmers, while others are employees or pensioners. The community claim that “not only feudalism – common power structures across much of rural Scotland –, but implicit and explicit bullying by Buccleuch, has played an effective role in intimidating local residents“.

The local Community Council for example, with several members who are Buccleuch tenants, or have other pecuniary links, have insisted that they are required to remain neutral, despite the fact that a significant proportion of the community they are supposed to represent are clearly opposed. Joan McCalpine MSP for the area said “Canonbie locals told me many were ‘too scared’ to speak out as they were Buccleuch estate tenants.” Furthermore, representatives of Buccleuch Estates have been accused of misinforming and misleading the community at public meetings, offering assurances, for instance, that there will be no flaring.

Buccleuch Estates CEO John Glen has also hit out at critics of the development. In an interview with the local newspaper Mr Glen stated: “You have to separate what are legitimate technical concerns about safety and the technology from those vociferous voices who don’t want to see any economic development in the area. I have little sympathy for that because it behoves us all to try to create economic development. There is a vociferous minority who aren’t elected by anyone and they purport to speak for a community when they have no democratic mandate”

It is ironic to accuse a community Residents Association of lacking a “democratic mandate” when you represent the largest landowner in the UK, and to accuse them of being a “vociferous minority” when it is clear they are fighting for the interests of almost 90% of the community.

Furthermore, the people of Canonbie and CaDRA do want to see economic development in the area, but development that is safe and sustainable, such as tourism, forestry, agricultural diversification, and renewable energy. Buccleuch’s plans are neither safe nor sustainable, and are not likely to provide significant or skilled local employment.

The argument that anyone who opposes a certain development is engaging with the system in the wrong kind of way is very familiar to us, but it should not be acceptable to dismiss the genuine concerns of a community, in the name of “economic development” that few of them are likely to benefit from, despite suffering all of the burden. Unfortunately however, we see this happening a great deal in Scottish planning.

The community of Canonbie are pursuing one of the few options left to them: they have made a complaint of malpractice on the part of Dumfries and Galloway Council to the Scottish Public Services Ombudsman (SPSO). However, even if they are successful, it is very unlikely that the planning decisions will actually be repealed.

Buccleuch Estates and Dumfries and Galloway Council were both contacted in advance of publication regarding the accusations leveled against them by members of the community of Canonbie.

Dumfries and Galloway Council chose not to comment on the grounds that it would be inappropriate due to the current investigation regarding malpractice on their part during this case by the SPSO.

Buccleuch Estates declined to comment.

To sum up:

Planning permission has been granted for a ‘gas-field’, surrounding a small village, posing risks to public health, while also risking environmental pollution to the river and the local agricultural area, and disrupting local tourism, all of which are employment providers in the area.

Permission was granted with very little public scrutiny, and in such a way that hid its true scale (even the Community Council were adamant at a late stage that the permission was granted only for exploration). Furthermore it was handled in a way that contrasts with the treatment of identical applications in Stirling and Falkirk – the only other similar applications in Scotland.

Members of the community who have attempted to engage with the system and have their voices heard claim to have been verbally abused and have been publicly criticised by the developers.

In other parts of rural Scotland, history has recorded the callous disregard of local tenants by powerful landowners when other, more profitable industries became available. Is it really acceptable for the same attitude to prevail today? It should be unacceptable that the people who stand to suffer the burdens of development, lack opportunity to voice their concerns in a meaningful way.

In Scotland once permission is granted for a development it is almost never reversed, even if it can be shown that the decision is harmful. Communities have no right to appeal planning decisions – even though developers always have the right to appeal planning refusals.

But it doesn’t have to be like this. Planning Democracy are campaigning for an Equal Right of Appeal that will establish a limited right to appeal planning decisions for local communities like Canonbie.

If such a law were in place now Bill and Loraine Frew, and the rest of the community of Canonbie would be able to have their case heard and given fair consideration, and may even be able to have the planning permission reversed.

Even more importantly, if such a law existed, it would always be in the best interests of developers to adhere to the rules, the quality of public participation in the planning system would improve significantly, and costly appeals would be avoided.

The Scottish Government does not believe that communities need an Equal Right of Appeal, because of ‘frontloading’; the process where public participation is dealt with at the very start of the process, through input in pre-application consultations and Local Development Plans.

But frontloading isn’t working. It is simply not in the best interests of developers to hold open deliberative consultations with local communities, because they face no consequences if they don’t.

With no access to ‘end of the pipe’ decision making processes, local communities will continue to be ignored and hoodwinked in the name of ‘economic benefit’ that they are never likely to see.