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March 7, 2023

UN investigates community complaint

A relative newcomer to the small band of NGOs in Scotland that campaign on environmental issues is the Environment Rights Centre for Scotland.  Working with fellow travellers, Planning Democracy, Friends of the Earth Scotland and RSPB,  ERCS believe that both the UK and Scottish Governments are in contravention of human rights legislation because of their refusal to allow communities a right to challenge planning decisions. The case is now being investigated by the United Nations body tasked with upholding environmental law. Given the development industry’s longstanding and fierce opposition to Equal Rights of Appeal, this is the stuff of David and Goliath


The Herald

A UNITED Nations body has begun a probe into whether the Scottish and UK governments have broken international law through a failure to give the public the right of challenge over planning decisions that would damage the nation’s precious environment, landscape and wildlife, it can be revealed.

A coalition of campaign groups from Planning Democracy, Environmental Rights Centre for Scotland, Friends of the Earth Scotland and RSPB Scotland, submitted a formal complaint over the failure at the end of last year about the Scottish and UK governments 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 general public should have the same rights of appeal over planning decisions as developers. If successful it could give the public the right to lodge appeals on everything from wind farms and major housing schemes to the erection of a wall that is over two metres.

They believe that there has been a precedent set in Northern Ireland where the ACCC found that an absence of equal rights of appeal was a breach of the Convention and that recommendations made must be applied in Scotland and the UK.

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.”

It comes as the complainers said a bid to address the alleged non-compliance with the Scottish Government informally, failed. They say that contact was made on several occasions and that the ministers indicated that it did not intend to address it.

It has been confirmed that the committee has found the complaints to be admissable and has now provided a five month time limit for governments to provide written explanations.

The concern is that the Scottish and UK Governments are 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 can issue cautions if there are found to be breaches.

The convention which came into force in 2001 and was ratified in the UK four years later is the world’s most far-reaching treaty on environmental rights.

It seeks to promote greater transparency and accountability among government bodies by guaranteeing public rights of access to environmental information, providing for public involvement in environmental decision-making and requiring the establishment of procedures enabling the public to challenge environmental decisions.

Scotland and the UK has come under fire for failing to meet a legal responsibility “to remove or reduce financial barriers to access to justice”.

The main way to challenge decisions, developments or policies which may breach environmental laws is by raising judicial review proceedings in the Court of Session.

But presently it still incurs a huge financial risk which conservation charities have to think and long and hard over as environment cases generally do not qualify for legal aid.

The groups’ say the general public should have the same rights of appeal as those who are applying for planning permission, usually developers.’

Currently only the applicants have the right of appeal usually at low or no cost.

The only legal recourse for affected communities is an expensive statutory review or judicial review in the Court of Session.

But they say the legal route does not allow for a full review of the merits of any planning decision.

Only the legal validity and procedural regularity of decisions are considered by the court rather than the substance of the concerns about the planning proposal, which they say leads to additional setbacks for affected communities.

The groups said: “This results in an uneven playing field, where people most affected by poor planning decisions are unable to make their voices heard. The aim of introducing equal rights of appeal is to confer statutory rights to communities so that they are empowered to appeal poor planning decisions.

“Equal rights of appeal would encourage developers to meaningfully engage with local communities and propose developments that are informed and consistent with development plans. It would encourage environmental considerations to be given their proper weight, leading to improved environmental and social outcomes as well as sustainable development.”

They say that planning appeals rights in Scotland are “not fair” and are therefore in breach of the convention.

A survey by Planning Democracy last year of 228 people including 175 community councillors across Scotland found that 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.

In 2011, an official analysis by Scotland’s nature agency shows that Scotland  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.

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

A Scottish Government spokesman said: “The Scottish Government is aware of the preliminary finding by the Aarhus Convention Compliance Committee on the admissibility of a communication concerning the absence of a third party right of appeal in the Scottish planning system.

“We will take time to consider the terms of the communication and respond appropriately in due course.”