PLANNING DEMOCRACY, ENVIRONMENTAL RIGHTS CENTRE FOR SCOTLAND, RSPB SCOTLAND & FRIENDS OF THE EARTH SCOTLAND

JOINT PRESS RELEASE

For immediate use: Monday 05/09/22

ENVIRONMENTAL CAMPAIGNERS URGE UN BODY TO RECOMMEND EQUAL RIGHTS IN SCOTLAND’S PLANNING SYSTEM.

Environmental and community campaigners have urged a top UN body to intervene in Scotland’s planning system, after repeated calls for equal rights of appeal have been ignored by the Scottish Government.

Campaigners from Planning Democracy, Environmental Rights Centre for Scotland, Friends of the Earth Scotland and RSPB Scotland, have submitted a formal complaint to the Aarhus Convention Compliance Committee (ACCC), a UN body tasked with upholding environmental rights.

They argue that planning appeal rights in Scotland are not ‘fair’ and therefore in breach of international law on access to justice for the environment.[1] They point to a ruling by the Committee in Northern Ireland concluding that a lack of equal rights was in breach of the Convention[2], and argue that similar recommendations must now be applied to Scotland to spur reform. [3]

The appeal to the UN follows over a decade of civil society campaigning and the passage of two planning bills, both of which failed to address the issue. An amendment proposing to introduce equal rights of appeal under the 2019 Planning (Scotland) Act was voted down by SNP and Conservative MSPs.

Currently, only applicants (usually developers) enjoy appeal rights if planning permission is refused. Members of the public and NGOs do not enjoy equivalent rights to appeal if a development is approved, even if the development will negatively impact on health and the environment, or if the decision-making process was flawed. The only option available to affected communities and individuals is to go to court via a judicial review, which the Convention’s governing bodies have already ruled is ‘prohibitively expensive’.

Campaigners are calling for the Scottish Government to introduce legislative reforms to achieve equal rights of appeal.

Clare Symonds, Chair of Planning Democracy, said,

“Giving communities rights of appeal 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’s Northern Ireland ruling 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 international law on environmental decision-making. The situation regarding appeal rights in Scotland is the same and we expect the ACCC to find in our favour and hold the Scottish Government to account .”

Benjamin Brown, Policy & 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.”

Mary Church, Head of Campaigns at Friends of the Earth Scotland, said,

“It’s an absolute scandal that communities and NGOs can’t appeal against developments that harm the environment, while developers can wage a war of attrition through appeals and repeat applications if their proposal gets knocked back. This lack of equal rights undermines the planning system and leads to decisions that are bad for people and planet. The Scottish Government shouldn’t wait for the UN to rap its knuckles again, but should take action to level the playing field as part of its agenda to enshrine human rights in Scots Law.”

Aedan Smith, Head of Policy and Advocacy at RSPB Scotland, said,

“It is essential that individuals and communities have the ability to challenge harmful decisions, especially those that would make the nature and climate emergency worse. We would hope that this ability would not need to be used very often, but it is important that decision makers can be held to account in a way that is fair.”

NOTES TO EDITORS

[1] The UNECE Aarhus Convention guarantees the right to go to court to challenge decisions, acts and omissions that break environmental law. Article 9 of the Convention requires that access to the courts is fair, equitable, timely and not prohibitively expensive. The United Kingdom ratified the UNECE Aarhus Convention in 2005. Scotland is obliged to ensure that its legal system is compliant with the Convention.

[2] Draft decision VII/8s concerning compliance by the United Kingdom of Great Britain and Northern Ireland with its obligations under the Convention was adopted by the 7th Meeting of the Parties to the Aarhus Convention in Geneva, October 2021 , and found that in relation to Communication ACCC/C/2013/90 regarding Northern Ireland:
“By maintaining a legal framework under which developers of proposed
activities subject to article 6 of the Convention are entitled to a full merits review of the decision on the proposed activity, but other members of the public seeking to challenge the same decision are not, the Party concerned fails to ensure that review procedures under article 9 (2) are fair as required by article 9 (4) of the Convention;”
The decision is available at: https://unece.org/sites/default/files/2021-10/ECE_MP.PP_2021_42_E.pdf (Paragraphs 3 (e))

[3] Planning Democracy and ERCS have produced a joint briefing on equal rights of appeal and access to justice in Scotland. Available at: https://www.ercs.scot/wp/wp-content/uploads/2022/08/Equal-rights-of-appeal-joint-briefing_Aug22.pdf

[4] The Environmental Rights Centre for Scotland (ERCS) assist the public and civil society to understand and exercise their rights in environmental law and to protect the environment. We carry out advocacy in policy and law reform to improve environmental rights, and full compliance with the Aarhus Convention on access to information, public participation in decision-making, and access to justice on environmental matters.
https://www.ercs.scot/

[5] Planning Democracy is a community-led organisation campaigning to strengthen the voice and influence of the public in the planning and development of Scotland’s land. We aim to deepen democratic control and promote environmental justice.
https://www.planningdemocracy.org.uk/

[6] Friends of the Earth Scotland is:
* Scotland’s leading environmental campaigning organisation
* An independent Scottish charity with a network of thousands of supporters and active local groups across Scotland
* Part of the largest grassroots environmental network in the world, uniting over 2 million supporters, 75 national member groups, and 5,000 local activist groups.

[7] RSPB Scotland is part of the RSPB, the UK’s largest nature conservation charity, inspiring everyone to give nature a home. RSPB Scotland protects threatened birds and wildlife so our towns, coast and countryside will teem with life once again. We play a leading role in BirdLife International, a worldwide partnership of nature conservation organisations.
www.rspb.org.uk/Scotland