The public deserve an equal right of appeal 

Campaign group Planning Democracy asked MSPs on Holyrood’s petitions committee recently to consider the case for equal rights of appeal for communities in planning decisions. The need for this petition comes from the strong feeling of injustice among communities in Scotland who have been affected by decisions to grant planning permission.

Under current rules, if a mine, power station or large-scale housing scheme is rejected, the developer can appeal. If the same development is approved, the community has no right to have the decision reviewed.

In other words, the public have no equal right of appeal. Many people affected by controversial planning decisions find it hard to get their heads around this blatant inequality.

“It is incredible that in a democratic society no member of the public, even those most badly affected, can appeal against the grant of a planning permission, no matter how strong the grounds for appeal may be,” commented Bill Frew of Canonbie Residents Association who are opposing plans for unconventional gas in their area.

But what difference would an equal rights of appeal make? At present there is only a very weak link between public input and decision-making. There is little incentive for developers or planning authorities to respond to issues raised by the public as there is no effective mechanism for holding them to account. Equality of appeal rights could provide the necessary incentive to ensure that community views are more assiduously sought and listened to.

In a recent case that goes against many local plan and conservation policies, community councillor in Edinburgh Arne Strid said, after the approval of the much-opposed Craighouse development: “The sheer weight of public opinion and objections expressed only goes to emphasise that there is little point in allowing planning applications to be commented on by residents.”

A right of appeal for communities would ensure, further, that planning authorities and the government would be less tempted to circumvent public scrutiny of decisions in which the decision-maker has a vested interest.

In the case of the Viking Windfarm on Shetland, the Shetland Islands Council was indirectly, through a trust, the co-developer of the scheme. The council’s lack of objection meant there did not have to be a public inquiry despite a substantive objection from Scottish Natural Heritage over concerns about protected birds.

Frank Hay of Sustainable Shetland said: “In the case of Sustainable Shetland over the consent of the Viking Windfarm on Shetland, an appeal process would have been a far better alternative to the continuing expensive court actions.”

Another advantage of an equal right of appeal is that it would encourage the public to engage early on in the planning system, at the local development plan stage. However, there needs to be some element of certainty for people to get involved. As Ann Coleman from Greengairs said: “We did everything ‘by the book’ and yet we are going to be worse off than if we had never engaged with the development plan process. Meanwhile, the developer circumvented the process and their application, that was contrary to the plan, was approved”.

But one of the biggest reasons for creating an equal right of appeal is it would provide an alternative to going to court. This would address the unreasonable costs of the only action currently available to the public – judicial review. An appeal could provide a method whereby the quality and merits of the planning decision can be considered, whereas in a judicial review, currently, the courts will only look at the process which was used.

The public have a key role to play in shaping Scotland’s future and should be given the same chance to do so as developers. Giving communities a right to appeal will help provide a much-needed injection of public confidence in today’s planning system – while rectifying an unjustifiable inequality.

• Clare Symonds is the convener of Planning Democracy – one of Scottish Environment LINK’s 37 member organisations.

Petition can be found at http://www.scottish.parliament.uk/GettingInvolved/Petitions/PE01534