Tom Devine: Ministers must end Scotland's planning scandal

This single individual denied the community a right to be heard at the appeal made by the developer, and this despite 569 objections from the public and a rejection of the housing plan by their local political representatives, the Planning Board of East Dunbartonshire Council. The community also raised a petition of more than 3000 signatures which was forwarded to the Minister for Local Government, Housing and Planning, Kevin Stewart MSP, but to no avail. Even public concern about the risks of development on old mine shafts where there is evidence of sinkholes and subsidence was not enough to warrant a hearing, let alone to prevent the development going ahead.

Another smaller but even more contentious application for 16 houses close to the iconic Culloden battlefield was also granted permission to proceed at appeal. This was despite a huge international and national outcry leading to more than 100,000 people signing a petition denouncing the proposal which in the view of many threatened the integrity of the nation’s most intact and famous battle site and the last resting place of both Jacobite and Hanoverian war dead who fell on the bloody afternoon in 16 April 1746.

Personally I am satisfied that any accusations of Nimbyism cannot be levelled at either of these two opposition groups. Having read the relevant documentation I was much more convinced by the evidence-based arguments of the protestors than the “judgements” and “opinions” of the Reporters.

Few people in Scotland ever have to confront Scotland’s unjust planning laws. When they do, however, they soon realise that the die is firmly loaded in favour of big business and house builders with economic muscle. The instances described above are merely the tip of a concealed iceberg: A colossal imbalance in the process weighted against the democratic rights of people and communities.

These examples beg the question of how unpopular, controversial developments gain permission in an age when, outwardly at least, we aspire to a publicly inclusive system of planning where communities can influence decision-making? If we accept in principle the need for more participatory forms of democracy in which ordinary people have rights to be engaged rather than simply voting for representatives to make decisions on their behalf, why do people’s voices and concerns still seem to be routinely ignored?

The harsh reality of our allegedly democratic system of planning is that most people are scandalously excluded from the process of decision making. Meaningful engagement by citizens is nothing other than a myth.

In fact, concern for such public participation in planning has a relatively long history. One of the most important documents in this regard, the Skeffington Report on Public Participation in Planning, put forward the case for increased public involvement as long ago as 1969. In post-war Britain, the obvious priority was to build new homes, but by the end of the 1960s, amidst growing concern about the impact of planned redevelopment, people were demanding more of a say on what was taking place. The Skeffington Report was forward thinking for its time. It recognised the need for a more participatory form of democracy which truly engaged the public in planning decisions. However, its key weakness was the failure to adequately specify how this was to be done. This flaw has never been rectified in the 50 years since publication. As a result, effective democratic planning has never really been achieved. Despite endless pronouncements about the importance of engaging the public, the architecture of Scotland’s planning system continues to reflect historical and long outdated conceptions.

The 1947 Town and Country Planning Act, inter alia, ensured that landowners lost the right to develop land as they wished. This was and remains a radical move with the potential to ensure democratic control of the development of land. Local authorities could now democratically steer development in favour of the longer-term public interest.

As a concession, however, prospective developers were given the right to appeal decisions. This meant anyone deprived of their historic right to develop land by the local authority refusing planning permission could petition the (then)Secretary of State for Scotland to re-examine cases. The system was founded on the assumption that there were two main parties involved in planning: Local authorities and property owners. No such rights were extended to others who might be affected by such decisions. That historical position has now hardened into orthodoxy.

Today many countries recognise that those affected by important decisions should have a direct say in how they are made. Modern democracies, therefore, seek to combine the participatory and the representative. As the Skeffington Report recognised 50 years ago, this is particularly important in planning, where decisions can have a huge impact on people’s lives. So, in much of Europe, there is a far more rights- based approach to planning which is recognised in international treaties including those of which Scotland is a signatory. These promise public rights of participation, freedom of information and access to justice in environmental matters.

According to the most important of these, the Aarhus Convention, members of the public should be able to legitimately challenge environmental decisions, such as those at Jellyhill and Culloden, without incurring prohibitive costs. But in the absence of rights of appeal, the only avenue to do so is by taking the issue to court through a judicial review. Despite some recent progress in capping the costs of some applicants, anyone who has any knowledge of these legal processes will know that they are a very expensive option where the outlay can often run into six figures. For example, the John Muir Trust’s recent unsuccessful challenge to the Stronelairg windfarm development led to a bill of £539,000 for the charity.

The other problem with judicial reviews is that they merely consider errors in law. Established legal tests require decisions to be so unreasonable that no reasonable person could have made them to justify any change. This means they cannot be an effective method of examining the substance of complex decisions where balance of judgement is of crucial importance.

THE sad fact is that our country does not comply with either the letter or the spirit of the commitments outlined in Aarhus despite committing itself to the clauses of that Convention in their entirety. Scandalously, the Scottish Government refuses to even acknowledge that this is a problem which needs to be addressed; hence no action has been taken to respond to repeated criticisms of the lack of access to fairness and justice for aggrieved local communities.

The current ongoing discussions in Holyrood on a revised planning Bill presents the Government with a real opportunity to lance this boil. Scotland is in dire need of a planning system that enables people to come together to debate how places should change or remain undisturbed. Communities require real powers to make sure that publicly acceptable development is agreed and that the voice of the people is not only heard but has real significance as one of the parties involved in any outcomes. No-one is suggesting that local communities have a right to veto, only that they be involved in the relevant processes rather than being effectively excluded.

Making it possible for people to challenge decisions is crucial to the democratic voice and is a guarantor that at last Scotland is serious about its commitment to public participation in planning. Our Government should recognise that the current system does not protect the public interest.

There is no longer any valid reason to accept a unique case for special privileges for developers by allowing them the right of appeal when ordinary citizens have no such rights. It is about time that the Scottish Government acted on behalf of the people of Scotland.