Objectors' challenge raises questions on planning strategy

Published on Wednesday 21 October 2009 18:59

OBJECTORS to proposals for a coal-fired power station and deep-water port at Hunterston have raised a legal action that could undermine a key part of the Scottish Government's recent planning reforms, the National Planning Framework (NPF), the strategy that should be taken into account when developing plans in Scotland.

Hunterston is designated a "national development" in the NPF, but the proposal to include it (along with certain other national developments) emerged at a late stage in the drafting process, and did not go through the same degree of consultation as the rest of the plan. The objectors say the government failed to consult on the designation in the manner required by law.

Where a project is designated as a national development in the NPF, the need for it is taken to have been established and should not normally be an issue considered by the planning authority. This is regarded as a key plank in proposals to speed up the planning system.

If the objectors are successful, Hunterston may have to be removed from the NPF, although the government may choose to appeal that decision.

A European directive, adopted in 2001, sets standards for government consultation on proposed developments likely to have a significant impact on the environment.

It requires publication of a report on the environmental assessment of the plan, and the public must have an early and effective opportunity to express opinion.

The Scottish legislation that implemented this directive set out procedure for consultation – including requirements such as a notice in a newspaper circulating in the area to which the plan relates, setting out how consultation is to proceed.

The government maintains there was substantial consultation on the discussion draft of the NPF, and this is true. It consulted widely in early 2007 on broad issues for the NPF, and in January 2008 produced a discussion draft of the NPF, on which it consulted for four months, taking in a wide variety of public events as well as more than 600 responses. However, plans for designating Hunterston as a national development only emerged after the consultation was complete.

The Hunterston proposal was contained in a supplementary environmental consultation that listed 52 "candidate national developments" (of which only nine were mentioned in the discussion draft), and gave fairly brief information on the likely environmental impact of each.

The consultation lasted six weeks and allegedly no specific notice was given in a local newspaper.

Following the consultation, the government produced a proposed NPF, including the Hunterston project, to be approved by parliament. It states there is a need for development of new baseload electricity generating capacity, and land at Hunterston offers the opportunity for developing such capacity. There has however, been no discussion of why the Hunterston site is better than alternatives, or any consideration of what the alternatives might be, and little on why Hunterston met the criteria.

The objectors' case is based on four perceived failures in the consultation: the lack of notice in the Hunterston area, the relatively limited time for responses, the apparent failure to consider alternatives, and the failure to give reasons for selecting Hunterston.

The government might argue the objectors could have commented on the proposed NPF during parliament's consideration (although parliament had little more environmental information on Hunterston than was available to the objectors), or that objectors are making their complaint too late, given that they should have raised their action as soon as possible after the publication of the proposed NPF.

It is surprising how little information is available on the reasons for selection of candidates for the NPF, and how little public consideration there appears to have been of the need for those developments.

Whatever the procedural rights and wrongs, this may leave the government open to allegations it was influenced by business lobbying, even if there is no evidence other than that it acted in good faith

If the objectors are successful, the government will be faced with a choice between removing Hunterston from the NPF, challenging the court decision and/or re-running the consultation.

Whatever the outcome, Danish developer Dong has already walked away from the project. Not the best of starts for the new planning regime.

&#149 Robert Seaton is a solicitor in the planning team at Brodies