Scotland is a fantastic place for nature, and plants are a huge part of what’s special about it. From the arctic-alpine wildflowers of our highest summits, to the vibrant, flower-studded machair of the Hebrides, or the Atlantic rainforests of the west coast dripping with lichens, the diversity of our plant life underpins every ecosystem.
But with 1 in 11 species in Scotland at risk from extinction, nature needs all the protection it can get.
Until now, a large part of that protection has come from EU legislation, which accounts for 80% of environmental protections in Scotland. Brexit threatens these protections, and we need to act now to ensure that our habitats and species aren’t lost once we leave the EU.
That’s why Plantlife Scotland was involved in the launch of a new campaign, organised by Scottish Environment LINK. The Fight for Scotland’s Nature campaign sends a clear message that Scotland needs politicians to act now, before it’s too late, to put in place principles to continue the protections we have and to ensure that these are embedded in domestic legislation.
The campaign was launched in November outside the Scottish Parliament, and is supported by 35 environmental charities under the Scottish Environment LINK partnership.
Through the campaign, we will be fighting to ensure that the EU principles of environmental protection are enshrined in new legislation. We will be calling for an independent watchdog to hold governments to account, which is crucial if the new legislation is to have teeth and be implemented. And we will be calling for clear, ambitious environmental targets, and the resources to deliver real environmental protection across the country.
If you have ever taken a walk through Scotland’s spectacular landscapes and enjoyed seeing the wildlife that lives here, chances are you have benefited from the legislation that has protected these habitats and species. Strong environmental legislation will go a long way towards ensuring the survival of our priceless natural heritage, and it’s time for our politicians to act.
The Scottish Government sets itself apart from its UK counterpart in its approach to protecting human rights. The SNP vocally opposed proposals to withdraw the UK from the ECHR and repeal the Human Rights Act. An expert group appointed by the First Minister Nicola Sturgeon will report this year with recommendations on how Scotland “can continue to lead by example in human rights”, and appears to be considering incorporating a range of rights from international human rights law into the Scottish legal system.
In environmental rights however, the lack of progress is conspicuous. As David Hart QC explained, the Aarhus Convention aims to protect the right to live in an environment adequate to health and wellbeing – the foundation on which other human rights are built. It recognises the rights of NGOs and members of the public to access information, participate in decision-making, and access justice. These rights encourage citizens to get involved in environmental decision-making. Article 9 requires that NGOs and members of the public must be able to challenge situations where their Convention rights are denied or national environmental laws are broken. Critically, access to justice must be “not prohibitively expensive”.
2018 brings a new development. New protective expenses orders rules for environmental litigation in Scotland were created last week. This post examines these rules, and argues that they remain out of line with the Convention.
Protective costs/expenses orders Adversarial justice systems are expensive for litigants. The general rule is that the loser pays their opponent’s legal costs – meaning that a litigant can end up liable for two sets of costs.
The UK’s attempt at mitigating this has been to create a system of ‘protective costs orders’ (protective ‘expenses’ orders – or PEOs – in Scotland, because we like to be different). They enable a person or NGO to go to court for an order at the outset of their case to cap their liability for adverse costs orders if they lose. This warms the ‘chilling effect’ of open-ended liability on willingness to litigate.
Three distinct regimes exist in England and Wales, Northern Ireland and Scotland. Statutory PEO rules have existed in Scotland since 2013, covering judicial reviews and statutory appeals in the Court of Session. These were amended in 2015. In 2017, the Scottish Civil Justice Council (SCJC) consulted on further reforming the rules.
The 2018 rules make a number of changes to the PEO system in Scotland. I start with the positive changes and move onto their problematic features.
Positive changes 1. Improved application process The 2018 rules contain two positive developments. First, they improve the application process. Under the pre-existing system, PEO applications were usually decided using contested hearings. This ‘satellite litigation’ created extra costs.
PEO applications are now to be made by motion with the presumption that they will be decided without a hearing. Applications should address a set of prescribed subjects, but the rules stop short of the standard form application process recommended by the Faculty of Advocates.
Additionally, where a court refuses to award a PEO, the applicant’s liability is limited to £500 to the other side for the PEO application. This is an improvement on the pre-existing position, where no such cap existed. Given the purpose of the PEO regime, you might question why a PEO applicant should face any liability at all. The SCJC did not offer any reasoning to support this £500 limit or carry out any assessment of its affordability.
These changes should reduce the costs of applying for a PEO. However, the time-consuming nature of the work involved in applying means that the PEO application process will likely remain unaffordable for most.
2. Defining ‘prohibitively expensive’ PEOs are only awarded if a court determines that the proceedings will be ‘prohibitively expensive’ for the applicant. The second positive change is that the new rules define this term. A mix of objective and subjective factors are used which largely replicate Regulation 6 of the Northern Irish PCO rules (themselves derived from judgments from the CJEU and the UKSC):
(3) Proceedings are to be considered prohibitively expensive for the purpose of this Chapter if the costs and expenses likely to be incurred by the applicant for a protective expenses order— (a) exceed the financial means of the applicant; or (b) are objectively unreasonable having regard to— (i) the situation of the parties; (ii) whether the applicant has reasonable prospects of success; (iii) the importance of what is at stake for the applicant; (iv) the importance of what is at stake for the environment; (v) the complexity of the relevant law and procedure; and (vi) whether the case is frivolous.
Adjudicating where a case is prohibitively expensive should become simpler for courts, because the rules contain clear guidance for the judiciary on the factors to be taken into account. However the criteria are broadly-framed, so it remains to be seen how they will be interpreted in practice.
Detrimental features Before anyone rushes out to celebrate, three concerning features of the rules need unpacked. 1. Uncapped default caps The pre-existing rules contained ‘default caps’ – the default position for a litigant with a PEO was that their liability to the other side was capped at £5,000 if unsuccessful; but they were only able to recover £30,000 from their opponent if successful. The old rules allowed for variations of the default caps in favour of a PEO applicant (i.e. to decrease the £5K cap or increase the 30K cap).
The new PEO rules make it possible to change the default PEO caps in either direction (i.e. potentially increasing the PEO applicant’s liability to their opponent or decreasing the applicant’s ability to recover their expenses if successful).
The test for changing the caps is “on cause shown”. This is a low test. Despite constituting a significant change to the PEO regime, this change was not highlighted in the SCJC’s consultation document to allow proper public consideration of its impacts. It will be attractive for respondents in most cases to seek to use this change in favour of less generous caps for PEO applicants – the likely result being that legitimate claims are deterred from proceeding and uncertainty is added to the system.
2. ‘Carrying over’ PEOs on appeal Under the pre-existing rules, a PEO only covered the proceedings being contemplated at the time of application. This meant that if someone applied for a PEO for proceedings in the Outer House and won their case, but the respondent then appealed – (s)he would have to apply for a new PEO for the appeal in the Inner House.
The new rules create the welcome change that, where a PEO has been granted in the Outer House, its terms will also cover proceedings in the Inner House where the respondent appeals. Where the PEO holder appeals an Outer House decision however, they will have to apply for another PEO to cover the appeal in the Inner House.
The ACCC’s conclusion on this matter is unequivocal. Its 2017 report found that having to reapply for a PEO when filing an appeal: … leads to uncertainty and additional satellite litigation, which itself adds further cost, at the appeal stage and accordingly is not consistent with paragraphs 8 (a), (b) and (d) of decision V/9n.
Additionally, if a PEO remains in place, its caps are static on appeal. So despite the legal costs increasing due to the additional work required of the PEO holder’s legal team to prepare and present their appeal (plus the additional costs of applying for another PEO if necessary), the ability of someone with a PEO to recover their expenses if successful will remain capped at £30K if successful on appeal.
The likely result of the 30K cap remaining static when carrying over on appeal is that the petitioner’s ability to pay for their legal representation will decrease when a PEO is carried over. This perverse outcome further tilts the inequality of arms in these cases.
3. No mandatory publication of PEO decisions It is impossible to establish whether individual decisions are being made according to the rules or assess how the PEO system is working without the systematic publication of PEO application decisions. Yet there is no requirement for this, and the current approach to publication is irregular.
Publication is compulsory under Article 9(4), which requires that: Decisions under this article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible.
The SCJC was invited to address this in the consultation, but failed to make the necessary changes. It is odd that the necessity of transparency is not accepted in 2018.
Scotland’s slow crawl towards compliance The new application process and definition of ‘prohibitively expensive’ are welcome changes. The new rules have made some improvements to the PEO system.
However, the rules are no panacea to Scotland’s longstanding non-compliance. Limited improvements do not excuse numerous deficiencies. The provisions for carrying over PEOs on appeal are manifestly non-compliant. Uncapping the default caps creates unnecessary uncertainty for litigants, a significant detrimental change which was not properly consulted upon. Sunlight is the best disinfectant – but nothing in the new PEO rules guarantees that its operation will be exposed to any curative rays.
Overall, the PEO system remains a limited mechanism to meet the Convention’s requirements. Access to environmental justice is an unaffordable luxury rather than a basic human right in Scotland. The Scottish Government should recognise and address the shortcomings of the Scottish civil justice system.
by Dr Ben Christman, trainee solicitor at the Legal Services Agency (Glasgow)
Scottish Environment LINK, a coalition of Scotland’s leading environmental charities has today launched an urgent campaign, “Fight for Scotland’s Nature”, for Scotland to have its own environment act.
Scotland may be small, but our natural environment is mighty and of global importance.
From the iconic Scots pine of the Caledonian Forest, home to rare species such as the capercaillie, the red squirrel, the pine marten and Scottish wildcat, to the stunning wild flowers of the machair, Scotland’s nature is amazing and something we should be rightly proud of.
Scotland’s breathtaking landscapes contain internationally important habitats. For example, Scotland has 5% of the world’s peatlands and the highest percentage of peatland cover anywhere in Europe, storing 25 times more carbon than all the UK’s vegetation. Often overlooked, peatlands are also a vital resource for native and migrating birds who depend on them to rest and feed – a reminder of the importance of ensuring well cared for natural areas.
It’s not just on land we can see the abundance of life – our marine area accounts for a staggering 60% of UK’s seas and 10% of Europe’s coastline. We are home to one third of all of Europe’s breeding seabirds and 29% of Europe’s seals. Our coral reefs, thought to be around 4,000 years old, support an incredible array of life, including fish, sharks and invertebrates.
Our health and wellbeing rely on a thriving environment that provides us with food and clean water and air. It also delivers economic benefits with 14% of jobs in Scotland supported by our nature.
Sadly, this life supporting system with all its beauty and diversity is in trouble. Historical land use change has led to habitat loss and species declines, making Scottish nature less resilient to the unprecedented environmental pressures we see today. Every day brings new evidence of the global ecological crisis that is underway. The effects of climate change and ecosystem collapse are on our doorstep even here in Scotland – just think back to the Beast from the East in the winter, all the severe storms we have witnessed and the summer droughts.
With around 80% of all our environmental laws in Scotland coming from the EU, it is clear how indispensable this legislation is for the protection of our environment. The legal framework of protections and associated funding that we currently receive from the EU have been pivotal in holding back the tide of further biodiversity declines.
The combination of strong legislation and support for effective implementation has made these environmental laws among the most effective on Earth. Brexit threatens to unravel this set of critically important backing at a time when 1 in 11 species in Scotland is at risk of extinction.
This is why Scotland’s leading environmental charities are calling for a new environmental law, a Scottish Environment Act, that is fit for purpose and able to cater to Scotland’s unique environmental needs.
Scotland needs to continue to develop environmental protections on the basis of the internationally recognised EU environmental principles and have an independent and well-resourced watchdog to ensure environmental legislation is upheld.
Clear targets for environmental ambitions supported by long-term actions and funding to mitigate climate change, create robust ecosystems and push for sustainable use of our natural resources that is good for us and our land and seas are also required.
Strong legislation, in the form of a Scottish Environment Act that builds on existing Scottish Government commitments to retain EU protections would achieve this. It would send a clear message to both EU partners and the world of our unwavering commitment to protecting and enhancing our natural environment. Such a statement would be all the more potent as we approach 2020, a year critical for the culmination of global efforts to halt and reverse biodiversity loss.
Along the words of leading French philosopher Michel Serre, in Scotland too, we must reconsider our relationship with nature and “sign our natural contract” with the planet to bring harmony and mutual respect to the very thing that sustains life.
The trick is to do this before it’s too late. It’s time for us all to fight for Scotland’s nature.
Charles Dundas of Woodland Trust Scotland and Chair of Scottish Environment LINK.
Scottish Environment LINK, a coalition of Scotland’s leading environmental charities will today launch an urgent campaign, “Fight for Scotland’s Nature” at the Scottish Parliament. Together they will call for Scotland to have its own environment act.
Fears sparked by Brexit as well as mounting evidence of the global ecological crisis also heavily impacting Scotland has prompted the charities to join forces and urge the Scottish Government to commit to a dedicated Environment Act for Scotland that protects and enhances Scotland’s nature, now and in the future.
80% of all Scotland’s environmental laws come from the EU. The combination of strong legislation and support for effective implementation has made these laws among the most effective on Earth. Further, Scotland’s nature has been a net beneficiary of the EU’s LIFE Nature fund which alone has supported conservation projects worth well over 25 million Euros to date.
If and when Brexit happens, Scotland (along with the rest of the UK) will lose the unrivalled support and enforcement roles of the European Commission, European Court of Justice and other EU bodies. Alarmingly, with only four and a half months to go, there is uncertainty about what will replace this.
This is why Scottish Environment LINK is pushing the Scottish Government to fight for Scotland’s nature and commit to a world class environment act before it’s too late. Ahead of global 2020 targets on halting biodiversity loss, it is important that Scotland sends a clear message to the world that our environmental protections are not up for grab.
Joined up legislation in the form of a Scottish Environment Act, that is fit for purpose and caters to Scotland’s unique environmental needs is required for this to be meaningful.
Scotland may be small but its natural environment is of world importance. It has 60% of the UK’s seas and 10% of Europe’s coastline. It is home to a staggering one third of all of Europe’s breeding seabirds and 29% of Europe’s seals. Its coral reefs, thought to be around 4,000 years old, support an incredible array of life, including fish, sharks and invertebrates. As for peatlands, Scotland has 5% of the world’s share, which stores 25 times more carbon than all the vegetation of the UK.
Charles Dundas of Woodland Trust Scotland and Chair of Scottish Environment LINKsaid: “Our environment is important not just in terms of its natural and cultural wealth. It is our life support system and we rely on it for food, clean water and air and jobs – 14% of which exist as a result of our nature.
“But this is all under threat. Every day brings new evidence of the global ecological crisis that is underway. Even here in Scotland, with 1 in 11 species currently at risk of extinction, the effects of climate change and ecosystem collapse are apparent. The legal framework of protections and associated funding that we currently receive from the EU have been pivotal in holding back the tide of further biodiversity declines.”
Scottish Environment LINK is stressing the importance of Scotland continuing to develop protections in line with internationally recognised EU environmental principles that have been crucial in safeguarding Scotland’s nature and enabling it to thrive. It also warns of the dangers of inadequate support and funding to effectively implement laws. Further, it is pushing for clear environmental targets supported by long-term actions and funding to mitigate climate change, create robust ecosystems and ensure sustainable use of our natural resources that is good for us and our land and seas.
Joyce McMillan, President of Scottish Environment LINK said: “As guardians of our amazing environment, we have a duty to ensure future environmental legislation is not tokenistic. It must be upheld through an independent and well-resourced watchdog.
“Now more than ever, we need a Scottish Environment Act that builds on existing Scottish Government commitments to retain EU protections. This would send a clear message to UK and EU partners as well as the rest of the world that we are serious about protecting and enhancing our natural environment. We live in a time of increasing environmental crisis and degradation, and it is vital that Scotland remains a dynamic part of the movement towards a more sustainable future, both for our own sakes, and as a reflection of our commitment to wider international efforts to protect and cherish the natural world on which we all depend.”
Ends
For media enquiries and interview requests please contact: Azra Wyart at: mediaandeventsscotland@gmail.com or call: 07788437819.
Notes to Editors (s)
(1) Scottish Environment LINK is the forum for Scotland’s voluntary environment community, with over 35 member bodies representing a broad spectrum of environmental interests with the common goal of contributing to a more environmentally sustainable society.
LINK is a Scottish Charity (SC000296) and a Scottish Company Limited by guarantee (SC250899). LINK is core funded by Membership Subscriptions and by grants from Scottish Natural Heritage, Scottish Government and Charitable Trusts.
(2) For more information about Scottish Environment LINK’s, Fight for Scotland’s Nature Campaign visit www.fightforscotlandsnature.scot.
(3) Scottish Environment LINK members wrote to the Cabinet Secretary for Environment, Climate Change and Land Reform Roseanna Cunningham to ask her to support a Scottish Environment Act. The letter is available here.
On 13 November, 35 of Scotland’s leading environmental charities wrote to Cabinet Secretary for Environment, Climate Change and Land Reform urging her to commit to a Scottish Environment Act. The full letter, also available here, follows.
Species Champion activities in the Scottish Parliament are always met with a smile among those involved, a chance to put the spotlight on some amazing wildlife and encourage MSPs to work together with environmental organisations and other MSPs, for the benefit of Scotland’s natural environment.
The award-winning Species Champion initiative, coordinated by Scottish Environment LINK, the forum for Scotland’s voluntary environmental organisations, raises awareness and promotes action to safeguard Scotland’s diverse and important species, especially in the context of domestic and global biodiversity targets.
With almost one in 10 species in Scotland at risk of extinction, politi- cal support for protecting our natural environment has never been more critical.
We can be proud of our unique, varied and rich environment in Scotland. However, we must also be aware of historical and ongoing threats, impacts and challenges surrounding its quality and future.
A recent report by Scottish Natural Heritage highlighted that only seven out of 20 global biodiversity targets are currently on course to be met in Scotland by the deadline in 2020.
In March, the Intergovernmental Science-policy Platform on Biodiversity and Ecosystem Services released the most comprehensive biodiversity study in more than a decade, which concluded that the rate of decline is such that the risks posed by its loss should be considered on the same scale as those of climate change. Clearly more needs to be done by decision makers.
While offering an opportunity for MSPs to get out of the office and experience some of Scotland’s amazing nature, the initiative also looks to address failing nature policies by highlighting the need for habitats and species to be protected and for the benefits of a thriving natural environment to be considered in all aspects of decision-making.
Since its launch in 2013, the Species Champions initiative has gone from strength to strength: at the start of the current parliamentary session in 2016, 56 MSPs were signed up to the scheme. Today, at almost halfway through the current session, there are 100 MSP champions, representing 78 per cent of the chamber.
This summer, the initiative will celebrate surpassing 100 Champion MSPs with the Species Champion 100 Day Challenge, which asks politicians to stand up for their species through a series of actions over 100 days. Halfway through the challenge, a wide range of activities have taken place. MSP Champions Claire Baker, Stuart Mcmillan and Tavish Scott have lodged motions on issues affecting their respective species.
Out and about, MSP Species Champion for the white-beaked dolphin, Christina Mckelvie visited St Abbs Head Nature Reserve, along with local MSPS, to learn more about issues affecting her species and surrounding habitat areas.
John Mason MSP, Species Champion for kestrels, helped to ring 10 Kestrel chicks in North Lanarkshire, while learning more about what needs to be done in their conservation. Tom Mason, MSP Species Champion for the northern damselfly joined Buglife Scotland at Castle Fraser to look for his species.
The 100 Day Challenge will culminate in a parliamentary event in September, to bring together all those involved in the scheme and to look for solutions for Scotland’s biodiversity challenges.
The success of the initiative will be measured by the influence MSP Champions have on safeguarding Scotland’s biodiversity. Real action is needed to protect our environment so that it can continue to amaze us but also to continue performing the critical functions that enhance our health and wellbeing and are the foundation of our prosperity as a nation.
As we approach the 2020 deadline for meeting international targets for halting biodiversity loss, we need to ensure that we have the right policies in place, and sufficient action. There is a clear opportunity for the new Environment Strategy being proposed by Scottish Government to set the framework for a well-protected and thriving environment.
In pursuing these objectives, there will always be room for the Species Champions initiative to tap into the lighter side of parliamentary affairs; friendly and informative debate in the chamber, fun and insightful engagement visits and even the chance to get a ‘selfie’ of a proud MSP champion and their species.
We hope that readers will enjoy learning about how their elected officials are working to protect Scotland’s nature and encourage them to do more for our amazing nature. To find out more about the initiative, please follow @specieschampion on Twitter.
Calum Langdale, Scottish Environment LINK’s Species Champion Coordinator
Some years ago, I was fortunate enough to be on a safari in Botswana and on a four-day trip by canoe in the Okavango delta. As we lazily lay back to view a sky of many birds soaring over us, our guide, an intelligent local young man speaking fluent English, said that we must be at home with so many eagles overhead, as this must be just like Scotland?
I tried to explain why we did not see so many eagles together. As his eyes widened, my lame explanation was that people killed them because eagles ate other bird’s chicks, because these other birds were raised in order for people to come and pay to shoot them. He kept returning to the subject during our stay because he just could not believe this. The point is, in other countries people recognise how wonderful, precious and enriching wildlife is – for people, and for the planet.
We all know that loss of wildlife and habitats is a symptom of loss of our life support systems on Earth, but many don’t realise that it poses just as big a threat as climate change. Living in harmony with wildlife is the goal other countries are pursuing and key to a modern sustainable Scotland. We often pay lip service to this in Scotland, but don’t actually change our perceptions – we need to see wildlife as having intrinsic value and to do something positive about it! Lest memories are short, it was just in the 60s and 70s that birds were in flocks and the skies were teeming, and the fields, woods, riparian corridors and damp hollows were moving with small and large mammals, amphibian, invertebrate, insect and bird life. Now, in far too many places, one experiences silence, and no life.It’s only relatively recent policies that have done such damage, leaving almost one in ten of Scotland’s species in danger of extinction. This damage is reversible if policies for wildlife restoration are introduced. A key ingredient is protecting species that are most vulnerable by making activities that lead to their persecution illegal. Unfortunately, to the disbelief of the public, many different types of crime against our wildlife go on all the time.
Some is outrageously public – in a Central Belt town, digging out of badgers has gone on in broad daylight and it is not stopped, nor the perpetrators brought to book. Scottish Badgers provides many volunteer surveyors to check this sett, and it is having an effect, but in the rest of Scotland, what happens? Possibly, in numerical terms, bats suffer most. Most of us think of bats as valuable in biodiversity, but ‘dealing with them’ is too often perceived as a delay in housebuilding and renovations and that “the wildlife will find somewhere else to live” – but what will be left when humans have ‘tidied up’ and ‘managed’ every scrap on the land? Only in May, several dozen freshwater pearl mussels were killed by poachers in the Highlands, looking for precious pearls. Scotland’s Highlands and islands are among Britain’s last strongholds for this critically endangered species.Overall, the number of crimes committed against badgers in Scotland is not accurately known, in part due to difficulties in detection. Members of Scottish Badgers find plenty of evidence of damaged setts but have great difficulty getting these investigated in a timely manner.
We receive about 500 calls for help each year and of these 60 or more are ‘apparently unlawful incidents’; although quite possibly offences, these rarely get recorded, far less get as far as a court. Readers may think that badger baiting is a medieval activity but we know that such persecution is still prevalent, mainly in the south of Scotland. The public are shocked when they find these facts out and they always ask us why it happens, by whom, and ‘what is the law doing about it?’. The truth is that laws work so long as they can be implemented. When it comes to wildlife crime, Scottish Environment LINK is clear that we can only protect against wildlife crime by reserving dedicated police resources to its investigation, by retaining the legal protection that is already there, and by strengthening legal protection for habitats. To be really effective, a Scottish Police Wildlife Unit is needed, composed of officers dedicated to the task and not taken off to other duties. It would use full-time detectives, ensuring there is relevant expertise; be adequately resourced, especially in equipment; and be led by a senior officer also only dedicated to this task.
Eddie Palmer, Chairperson of Scottish Badgers and convener of LINK Wildlife Crime Group
At the moment, for only the second time since devolution, there is a Planning Bill before the Scottish Parliament.
Of course, you could be forgiven for not being too excited about this. Even if you were aware, you might struggle to follow the debate.
Planning is a world of often painful jargon which can seem more than a bit dry (think middle-aged professionals in suits discussing the finer difference between ‘have regard to’ and ‘take account of’).
But for many communities across Scotland, concerned about the quality, quantity or type of development, this is a crucial debate and inequalities in the planning system have become one of the issues most hotly debated by MSPs. Take, for example, the community in South Lanarkshire, which for nine years has opposed a proposed quarry on the banks of the Clyde at Lamington.
It’s a stone’s throw from nearby opencast coal mining and sand and gravel quarries, but one particular proposal for a sand and gravel extraction site has been a thorn in the side of many for too long and is hugely unpopular.
The list of objections raised by the community is long: it would destroy an irreplaceable area of rare, highest quality agricultural land; industrialise a popular scenic tourist area; increase flood risk and generate significant traffic.
The developers first lodged an application in 2009 that was refused by the local authority. In 2011 they came back with another application, which was again refused. They appealed to the Scottish Government, but the appeal was dismissed.
Not satisfied, the company then took to the courts, but the judges supported the government and local authority decisions. It was everyone’s hope and expectation that this would finally be the end of the matter but, incredibly, despite these repeated rejections, the developer submitted another new, almost identical application, due to be decided this month.
Such is the weighting of the system in favour of developers, they can, like the Terminator, simply say “I’ll be back” and submit a practically identical new application. Not only that, if permission is refused a developer can simply instigate a review of a decision or have a second go at getting consent at no extra cost.
This is in stark contrast to embattled communities, who have no such rights to instigate a review no matter how flawed a decision might be. At each stage the community is required to patiently and painstakingly set out their concerns and respond in the hope they’ll be taken into account but they know that, every time, the system is stacked against them.
For a community, and even for a local authority, planning can often become a costly war of attrition in which the dice are heavily loaded in favour of the developer. So far, fighting the quarry has cost this community £123,000, not to mention years of angst, effort and uncertainty.
Well-resourced developers can play the long game and doggedly pursue schemes with little concern for impacts on local people and how they want to see their local area develop.
Something needs to be done to prevent developers from simply resubmitting applications on the same site. However, the deeper injustice is that, in contrast to developers, communities have no rights to instigate a review of a decision.
Even if a local authority approves a development that completely undermines the ‘development plan’ for their area, a plan which takes years to prepare and involves extensive consultation and consideration, communities just have to live with the consequences while the developer reaps the rewards.
This is why Planning Democracy is pleased to see issues of equality and fairness finally become part of the debate about planning at Holyrood. In particular, an equal right of appeal, which we have been campaigning for, is now being seriously considered.
Particular credit is due to the Local Government and Communities Committee for giving the arguments a fair hearing, despite the best efforts of the government and industry to keep it off the agenda.
The Planning Bill provides a rare opportunity to address this deep injustice. We hope MSPs looking at the planning legislation will be able to cut through the dry jargon, see the importance of the issues before them, and help give Scotland a planning system which better reflects the sort of fairer country we surely all want Scotland to become.
Clare Symonds, Chair of Planning Democracy and Deputy Convenor of LINK’s Planning Group.
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