DPEA Stakeholders’ Meeting – 28 April 2021

The DPEA Stakeholders’ Meeting took place remotely on 28 April 2021.  SAS was represented by Aileen Jackson and Rachel Connor.

AGENDA ITEMS RAISED BY AILEEN

1. Update to Circular 6/1990

At a previous meeting in September 2019, SAS had put forward that Circular 6/1990 should be updated to deal with the behaviours of parties at hearings and inquiries.  This included, what we saw as, personal and vicious attacks on members of the public. We thought that reporters should exercise greater control over parties and the proceedings. We added that issues relating to late submissions should be included and cited a 721 page closing submission that was 15 weeks late. We put forward that the “test” should be unreasonable behaviour and not just such behaviour that leads to additional expense.

We were expecting an update on our proposal at today’s meeting and were surprised to be told after an eighteen month wait that we would be given contact details for someone else within the Scottish Government (Planning) to contact.

2. Provision of free CDs

A number of members in remote areas with broadband problems had told us about the difficulties they face (particularly during the pandemic) scrutinising planning applications, due to the length of time it took to download large documents such as maps. This discourages public participation in the planning process.  Only a decade ago, developers gave out CDs, containing full Environmental Impact Assessments, free of charge, now it costs upwards of £25.  Aileen suggested that we return to the good old days and Applicants should produce CDs without charge to anyone who requests one in order to encourage more people to get involved.  This idea was well received by DPEA and Marcus Trinick QC, (well known to many of you as Counsel for the other side) welcomed the idea and agreed all Applicants should do this.  It should hopefully happen sooner rather than later.  We’ll keep the pressure on.

3. Public Advocate

Although we had added  “Provision of a public advocate” to the Agenda some time ago (to help represent individuals/groups at Inquiries and steer them through the process), Aileen asked for it to be removed as it is now included in our Public Petition to the Scottish Parliament.  It turned out (as suspected) that it was not within the remit of DPEA anyway.  DPEA were very interested in the Petition and asked Aileen to keep them informed of any progress.

4. Statistics

Aileen asked a question about the statistics provided by DPEA – how many people have logged on to watch Inquiry webcasts and which received the most viewings?

2533 people watched live

6849 viewers in total

1. Clash Gour/Rothes conjoined Section 36 windfarms
2. Blarghour Section 36 windfarm, and
3. Glenshero Section 36 windfarm.

Interesting that the three most watched Inquiries were all s36 Windfarms

AGENDA ITEMS RAISED BY RACHEL

1. CD’s of Public Inquiries and Hearings.
   There was much discussion about the ability of third parties/members of the public being able to contribute properly in ‘virtual’ appeal oral proceedings ( Inquiries and Hearings ) when their broadband/internet connections were poor or non existent.
   DPEA said that they had had feedback from some members of the public that they found virtual proceedings less intimidating and preferable, but it’s not clear if such comments came from urban dwellers with good broadband connection.
   The overall consensus from the meeting was that ‘real’ in person oral proceedings were preferable, but it may be that some component of virtual proceedings may be retained in future.

   Rachel raised the issue that if third parties could not contribute properly due to poor broadband, then it was likely that they couldn’t download webcasts of Inquiry proceedings. This was likely to severely disadvantage them in writing closing statements etc.
   DPEA agreed that they would be prepared to give public participants to an Inquiry a CD of the webcast of that Inquiry, to try and remedy the problem with access, although providing a CD could not be arranged immediately following a day’s proceedings.
   This is good news for all rural residents struggling to see and hear a public Inquiry in which they’ve been involved.

It was also agreed that to ensure meaningful public participation, DPEA would advise appellants and if necessary intervene,  to ensure developers produced CD’s or memory sticks of appeal documents to third parties in good time,  if requested.

2.  Environmental Impact Assessment Regulations: Offence by applicants to provide misleading information.
   Rachel tabled the issue of applicants/appellants deliberately submitting misleading environmental information to a planning application or appeal

– The Environmental Impact Regulations (s.38 The Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2017
– The Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2017 s. 54
and
– the related Scottish Government planning circular on EIA Regs 2017,  [ Planning Circular 1/2017 1st Edition 16/05/2017],
all refer to the new introduction in the 2017 Regulations that it is an offence to provide misleading information in an EIA planning application with a view to obtaining consent.

For example, Sottish Planning Circular 1/2017 states
“OFFENCES AND PENALTIES

178. The 2017 regulations introduce arrangements for offences and subsequent penalties. It is now an offence for any person or bodies corporate, in order to obtain a particular decision on an EIA application to;

– knowingly or recklessly make a false or misleading statement in a material particular;

– with intent to deceive, use a document which is false or misleading in a material particular; or,

– to withhold any material information with intent to deceive, person guilty of any of the above offences is liable to a fine.

Rachel asked the question of DPEA -If a third party feels that the planning applicant or appellant has committed an offence and considers that they have substantive evidence of such, how is the law to be upheld?

What procedures does DPEA have in place for such matters and how and to whom would DPEA recommend third parties take this forward?

The comments from the meeting, primarily reporter Dan Jackman, is that the bar of committing an offence is set very high – committing an offence is not a matter of opinion as to whether the developer is right or wrong in what they’ve submitted. Reporters are used to delivering a decision based on an opinion of the veracity and importance of evidence.

DPEA’s opinion is that it is not DPEA’s responsibility to enforce the law.
DPEA have no mechanism for dealing with third party/public concerns or evidence from third parties that an offence may have been committed.
DPEA recommended informing and providing the evidence to the Reporter and the appellant for the case for their response. DPEA might refer the matter to Police Scotland if they had their own legitimate concerns that an offence had occurred.

The advice from DPEA is that it’s up to the public to sort this out for themselves and refer any evidence or concerns of deliberate submission of misleading information to the police.
It seems that there is not a mechanism which would allow an independent body/the police, to examine and investigate the evidence and decide whether this would allow a charge to be brought.

The consequences of not investigating valid complaints and allegations against material environmental information submitted by a developer in order to gain consent from a planning authority or Scottish Ministers (DPEA), is that consent may be issued inappropriately.

3.  AOCB.
On behalf of a SAS member, Rachel brought up the issue of developers frequently changing the description of a planning application, e.g. increasing/decreasing numbers or heights of turbines in planning applications before consent has been awarded. This causes third parties and community councils with little or no funding great difficulty in obtaining and paying for relevant consultant expertise to produce informed comment to consenting authorities.

DPEA’s response is that they have no jurisdiction over what happens before an application is consented, or while a s.36 application is with the Energy Consents Unit. The developer is allowed to make changes without submitting a new planning application.
However, once an application or an appeal has been submitted to DPEA, the details of that application/appeal cannot be changed.