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September 6, 2022

Scottish Government facing legal action

Probably the most contentious aspect of all the debates that surrounded the passage of the Planning (Scotland) Act  2019 focused on whether communities (or indeed anyone other than the developer) would be granted a right of appeal in the face of planning applications that were considered by them to be against the public interest. The planning  establishment and the development lobby worked hard to protect their interests and eventually won the day. A coalition of campaign groups have now submitted a formal complaint that the actions of the Scottish Government are in breach of international law. This could be interesting.

Martin Williams. The Herald

THE SCOTTISH Government is facing legal action after an 11-year breach of international law through a failure to have a public right of challenge over decisions that would damage the nation’s precious environment, landscape and wildlife.

A coalition of campaign groups from Planning Democracy, Environmental Rights Centre for Scotland, Friends of the Earth Scotland and RSPB Scotland, have submitted a formal complaint about the Scottish Government to the Aarhus Convention Compliance Committee (ACCC), a United Nations body tasked with upholding environmental rights saying there is a breach of international law.

They say that the Scottish Government is in breach of the Aarhus Convention – an international agreement that sets out an obligation to ensure public consultation on decisions by the government or public sector that will impact on the environment. The Compliance Committee will consider whether the Scottish Government is in breach of international law. It has the power to issue cautions if there is non-compliance.

Planning Democracy say that its recent survey of 228 people including 175 community councillors across Scotland confirmed people feel they have very little influence over planning decisions. Some 65% said there were a lack of opportunities to participate in planning decisions.

Over half (56% )felt generally negative about their ability to influence decisions. A third reported feeling they had absolutely no influence over them.

Some 79% said that being heard or listened to by planners – those who make vital decisions over neighbourhood developments – was a significant or very significant challenge.

The UN body which adopted the convention in 1998 was told last year that the Scottish Government is still failing to meet its legal responsibility which requires it “to remove or reduce financial barriers to access to justice”.

They say currently developers enjoy statutory appeal rights if planning permission for a development is refused.

But members of the public do not enjoy equivalent rights to appeal if a development is approved, even if it negatively impacts their health and environment, or if the decision-making process was flawed.

The only way to challenge decisions, developments or policies is by raising judicial review proceedings in the Court of Session which the Convention’s governing bodies have already ruled is “prohibitively expensive”.

Cases involving major developments that could affect the environment generally do not qualify for legal aid.

In October the Aarhus Convention Compliance Committee called for reform “as a matter of urgency” with “a plan of action, including a time schedule” to be submitted to it by 2022.

But the groups say there has been no concrete reforms.

It wants action to ensure that the cost of court procedures to deal with environmental problems is “fair and equitable and not prohibitively expensive”.

The groups in their complaint say the rights of challenge have been “ignored” by the Scottish Government.

They point to a 2021 ruling by the ACCC in Northern Ireland concluding that a lack of equal rights was in breach of the convention, and argue that similar recommendations must now be applied to Scotland.

They say the crux of that decision states: “…it is clear that for a planning decision in Northern Ireland subject to article 6 of the Convention, the developer is entitled to a full merits review of that decision by a specialist planning body, whereas other members of the public seeking to exercise their rights under article 9(2) are not. This situation is clearly not fair within the meaning of article 9(4) of the Convention.”

Clare Symonds, chairman of Planning Democracy, said: “Giving communities rights of appeal is not about NIMBYism – it is about justice and fairness. It should be a given that decisions that fundamentally affect our future and the environment can be contested by those who will be most affected.

“It is clear that the Aarhus Compliance Committee agrees with our perspective that for developers to have right to challenge a decision at no cost, when communities have no such privilege, is unfair and a breach of the Scottish Government’s commitments on environmental decision-making.

The groups say that even the judicial reveiw processes are flawed, as they do not allow for a full examination of the merits of a planning decision. This means that only the legal validity and procedural regularity of decisions are considered by the Court rather than the actual substance of the concerns about the planning proposal, creating “additional setbacks” for affected communities.

They are concerns that even if a local authority approves a development that undermines the local development masterplan for their area, a plan which takes years to prepare and involves extensive consultation and consideration, communities must live with the consequences.

Last year a community council claimed victory in stopping plans for Green Belt housing in Glasgow’s last remaining village which were given the go-ahead in breach of the city council’s own rules.

Glasgow City Council had said they were not contesting a court action by Carmunnock residents over the decision – which involved them setting up a fighting fund for a potential judicial review.

The council said it had initially delivered court papers to the Court of Session over what it called “an unexpected and unplanned giveaway of Green Belt” but it never proceeded to judicial review after there was no challenge and environmental campaigners claimed it was too costly.

The row surrounded plans by East Kilbride-based Zoom Developments to build four new five-bedroom homes on green belt land in Carmunnock, despite proposals for the site being previously rejected by the council.

The homes were to be built on “iconic” green space called locally as The Horse Field in Busby Road, which was used for equestrian grazing.

In 2020, the council said that it was not considered to be in accordance with their development plan for the area and would result in the loss of Green Belt “with a significant adverse impact on the landscape character of Carmunnock village”.

The council said at the time: “It should not be up to citizens to fund these repeated battles from our own pockets – often with pensioners and families on low income contributing to the legal costs.”

Benjamin Brown, policy and advocacy officer at ERCS, said: “As it stands, Scotland’s planning system is rigged in favour of developers. Through ignoring calls to introduce equal rights of appeal in planning decisions, the Scottish Government has missed a vital opportunity to empower communities and protect our environment. It must now act to reform the planning process, so that communities impacted by poorly considered planning decisions can have their voices heard. As we work towards including the right to a healthy environment in the new Human Rights Bill, equal rights in planning cannot be forgotten.”

Last year, official analysis by Scotland’s nature agency shows that Scotland has also failed to meet 11 of 20 agreed UN targets to protect the environment while one in five animals and plants deemed important to the nation by ministers are under threat.

The statutory Scottish Biodiversity List revealed threats to many of the 2105 land animal, plant and marine species deemed of principal importance by the Scottish Government.

A NatureScot analysis found that 441 (21%) were classed as threatened, and 222 (11%) as near threatened.

Conservation charity John Muir Trust has previously spoken out of its concerns about the rights to environmental justice after its attempt to challenge a wind farm development at Stronelairg five years ago led to it facing a near £700,000 bill, although this was eventually negotiated down to £275,000.

The Trust settled out of court with the Perth-based energy company SSE and the Scottish government after its attempt to block a wind farm through a judicial review near Loch Ness failed.

A Scottish Government spokesman said: “We have contributed to a UK Action Plan to address the gaps in compliance which have been identified by the Aarhus Convention Compliance Committee recommendations which, specifically for Scotland, relate to the costs of access to justice on environmental matters.

“We are committed to introducing a new Human Right to a Healthy Environment as part of a Human Rights Bill, which will be a step change in the recognition of environmental rights in Scotland.”