Update on Scotland Against Spin Petition to the Scottish Parliament

The SAS Petition to the Scottish Parliament https://www.parliament.scot/get-involved/petitions/view-petitions/pe1864-increase-the-ability-of-communities-to-influence-planning-decisions-for-onshore-windfarms was heard by the Petitions Committee on 1 September.  They unanimously supported the Petition and agreed to consult Scottish Renewables, Planning Aid Scotland, Royal Town Planning Institute and Heads of Planning Scotland (HoPS.)  To date, all but HoPS have replied and their submissions can be read on the above link by clicking on the + sign beside Citizen Participation and Public Petitions Committee Consideration.

Today, SAS submitted responses to these submissions which can be read below.  They will be available for viewing on the Scottish Parliament Petition webpage next week.

SCOTLAND AGAINST SPIN (SAS) RESPONSE TO PLANNING AID SCOTLAND (PAS) SUBMISSION OF 6 OCTOBER 2021

1. Adopting English planning legislation for the determination of onshore wind farm developments

PAS Submission

• As an impartial organisation, PAS does not comment on policy approaches to renewable energy.
• It may be useful for the committee to hear an English local authority perspective on the application of the current policy approach as set out in the petition, and to understand how community approval or otherwise of onshore windfarm proposals is assessed.
• PAS understands that Scotland is the only devolved UK nation requiring inquiries for certain onshore windfarm appeals. It may be useful for the committee to hear a DPEA perspective on this matter. Is an inquiry the best approach to examining matters such as visual impact where parties will often already have fixed positions? Might a hearing or written submissions be more effective? Could mediation be introduced as part of the process?
• It could also be investigated whether existing legislation and procedure (eg, the EIA regulations) could be amended to ensure members of the public and community groups are notified earlier in the process about section 36 applications (in effect creating closer alignment with the planning application process).

SAS Response

• These are all reasonable points. However:
  No amount of public notification for any size of windfarm applications will make any difference if there is unequal consideration of third party evidence, whether that is a consequence of written submissions, hearings or inquiries.
• The present system is heavily weighted in favour of windfarm developers, encouraged by amendments to Scottish Planning Policy.
• The recent Arecleoch Decision (WIN-370-2 ) gave the impression that Scottish Ministers consider that unless third parties instruct their own professional experts, their evidence, even if correct, will not be given the same weight as the developer’s professional agents.
• SAS do not agree that Scotland is the only devolved nation requiring inquiries for certain onshore wind farm appeals. https://gov.wales/sites/default/files/publications/2019-07/developments-of-national-significance-dns-engaging-with-the-process.pdf
• SAS holds to the view that local planning authorities should be the decision maker for all onshore wind farm developments, with the usual appeals process verifying the decisions

2. Empowering local authorities to ensure local communities are given sufficient professional help to engage in the planning process

PAS Submission

• PAS recognises the challenges that community groups and members of the public experience in preparing for and participating in inquiries, especially in areas with multiple and/or repeat applications.
• The PAS free and impartial advice service (delivered by a combination of staff and PAS volunteers – all chartered planners) receives over 1000 enquiries annually and advice is provided for any eligible enquiry. PAS is also a referral agency to the Faculty of Advocates Free Legal Services Unit, meaning that users of our advice service can request pro bono legal support (written advice, representation or mediation). In addition, PAS has delivered training sessions for community groups in areas experiencing a high volume of windfarm applications.
• Advising members of the public or community groups involved in an inquiry is inevitably one of the most challenging enquiry types received by the PAS advice service, both in terms of the potential volume of material to review, and the potential time input required.
• PAS believes that there is scope for the committee to further investigate the establishment of a formal scheme whereby support would be offered to individuals or community groups participating in inquiries. The legal profession may be interested in supporting such a scheme, perhaps through the Faculty of Advocates or the Law Society of Scotland. The DPEA and local authorities might also have an interest in helping provide this support.
• If such a scheme were to be established, it should be universal – open to participants in all types and topic of inquiry – and not restricted to those opposing onshore windfarm applications.

SAS Response

• There is no evidence that there has been significant help from PAS in regard to windfarm applications. Supporting communities on wind farms developments is a specialist planning activity requiring a substantial amount of time and expertise. The PAS ‘generalist’ planners have insufficient voluntary time and expertise to support the considerable number of geographically spread wind farm affected communities.
• The volunteers in community councils often have full time jobs as well as having to assess hundreds of very technical, planning documents, often from multiple windfarm applications. They need professional expert on the ground help, not training which they do not have the time or the energy to attend.
• As far as we are aware, there have been no referrals to the Faculty of Advocates Free Legal Services Unit which successfully resulted in pro bono legal support for third party objectors taking part in wind farm Inquiries.
• DPEA acknowledge in their recently published 2020-21 statistics that s.36 windfarm primary applications and appeals comprise the majority of planning public inquiries. It is therefore surprising that PAS has not been more prominent in providing community groups with support for this type of Inquiry. Nevertheless, it would only be equitable to provide a similar level of readily available publicly funded professional support to third parties for all types of planning application going to public hearings or inquiries.  Solutions as to how this could be financed and executed can be found in the Petitioner’s submission of 11 June.

3. Appointing an independent advocate to ensure that local participants are not bullied and intimidated during public inquiries

PAS Submission

• PAS recognises that appearing at inquiry can be an intimidating experience, particularly as a member of the public facing cross examination. However, if reporters are trained to recognise bullying and to intervene at the correct time, PAS does not currently consider that introducing a further layer of personnel in the form of an independent advocate should need to be added to the inquiry process.
• It may be useful for the committee to understand how reporters are trained to recognise and deal with potential bullying, and if appropriate, for the DPEA to review training and reference materials. The DPEA complaints process already exists as a recourse for investigation of procedural matters.
• A potential support scheme – as referenced above – should be designed to help inquiry participants to understand what to expect and how to manage cross examination.
• The petition itself does not provide direct examples of bullying. A range of public comments submitted refer to bullying but often appear to be anecdotal rather than specific (n.b. PAS has not reviewed every public submission, so there may indeed be specific descriptions of bullying). The committee may wish to seek more detailed testimonies from those who believe they have experienced bullying to help determine potential further actions. It may also be useful for the committee to hear from the DPEA on this matter.

SAS Response

• It should be noted that PAS’s comments come from a professional perspective rather than the direct first-hand knowledge of SAS members who have, as lay people, been through the experience.
• Members of the public may not have the services of an advocate, unlike cross examination in a court. They are completely exposed to the vagaries of the developer’s well resourced legal team.
• As far as we are aware, Reporters are not formally trained to intervene appropriately and should not conduct public Inquiries until such training can be evidenced.
• A formal mechanism whereby members of the public can complain about the conduct of the developer’s agents would be welcomed. An independent body, which should include at least one member of the public, can review the proceedings (now almost always recorded and webcast by DPEA) to determine whether there is a case to answer. This would provide a mechanism of independent scrutiny to ensure ‘fair play’.
• Public witnesses to any Inquiry or Hearing public should be informed of the standards expected and of the mechanism to submit complaints – as occurs with other public bodies. The current DPEA complaints mechanism is dealt with internally and our experience is that complaints are not always properly addressed. (for example, evidenced complaints that a developer has deliberately submitted misleading environmental information to an Inquiry)
• If there is a complaint in regard to procedure or conduct at an Inquiry or Hearing, then this must be answered in full before any Decision is issued, in case the facts would have a bearing on a correct Decision being made.
• If public witnesses are found by the independent body to have been intimidated or bullied at a Hearing or Inquiry to the extent that their evidence is compromised and no suitable control was exercised by a Reporter, then there needs to be a mechanism of appropriate sanctions.
• As members of the DPEA Stakeholders’ Forum SAS suggested some time ago that Circular 6/1990 should be updated to deal with the behaviour of parties at Hearings/Inquiries. We put forward that the “test” should be unreasonable behaviour and not just such behaviour that leads to additional expense. After a wait of eighteen months DPEA recently informed us that this was not within their remit and we should contact Scottish Government Planning.
• It is unfortunate that PAS did not find the time to read all the submissions to the Petition as direct examples of bullying are included. For example, we refer you to the submissions from Rachel Connor of 11 June, Gladys Speirs of 14 June, Nigel Willis of 28 June and Audra McPhee of 29 September.

SCOTLAND AGAINST SPIN (SAS) RESPONSE TO SCOTTISH RENEWABLES (SR) SUBMISSION OF 4 OCTOBER 2021

1.  ADOPTING ENGLISH PLANNING LEGISLATION FOR THE DETERMINATION OF ONSHORE WIND FARM DEVELOPMENTS

SR Submission

Onshore wind is one of the cheapest forms of energy and the most cost-effective way to achieve our climate change ambitions at the lowest cost to consumers. The Climate Change Committee’s official advice to government shows that we will need to grow Scotland’s onshore wind fleet from its current 8.4GW to 20.4GW by 2030 if we are to achieve net-zero.

SAS Response

A doubling of the number of onshore turbines by 2030,from the current number, which already encroach on rural people adversely affecting their lives and livelihoods is precisely why this petition has been submitted with so much support from across Scotland.

There are plenty of alternatives to onshore wind energy, which can be developed without the adverse local environmental effects of wind turbines and without the risks associated with putting all our eggs in one basket.

SR Submission

Onshore wind already supports 8,800 jobs and contributes £2.2 billion to the economy each year in Scotland. The 12GW of onshore wind we need to build by 2030 is expected to raise this figure to over 25,000 jobs and around £30 billion.

SAS Response

This is Irrelevant to the petition. However, SR always project overly optimistic potential employment figures in the renewable sector which have been shown to be completely misleading. Most jobs go abroad. Most of the onshore wind companies are domiciled abroad or operate from tax havens excluding Scotland of the benefits taken from exploiting its resources.

The recent House of Commons Scottish Affairs Committee Report on Renewable Energy in Scotland (17/9/21) highlighted the considerable shortcomings of the Scottish renewables industries claims on employment from renewables in Scotland.

SR Submission

Scottish Planning Policy is a devolved matter for which The Scottish Government is responsible. It is Scottish Renewables position that legislation and policy that shapes the planning system in Scotland, comparative to other devolved responsibilities, should be scrutinised and voted upon by the elected members of the Scottish Parliament.

SAS Response

This petition does not ask that English Planning Legislation is adopted verbatim. Elected Members in Scotland rightly debate and scrutinise proposed Scottish Legislation. Members are elected by their constituents and are answerable to them. They should be representing the views of their constituents, not just the views of industry and lobbying groups.

2. EMPOWERING LOCAL AUTHORITIES TO ENSURE LOCAL COMMUNITIES ARE GIVEN SUFFICIENT PROFESSIONAL HELP TO ENGAGE IN THE PLANNING PROCESS

SR Submission

In November 2020, Scottish Renewables highlighted our concerns to The Scottish Government about the existing capacity constraints within Local Authority planning departments and the implications of this for the increased volume of renewables consents that net-zero will require. Research conducted by Scottish Renewables showed that the number of planners employed by councils in Scotland has fallen by 20% since 2011 – but the number of applications they will have to grant must increase if Scotland is to stay on track to net-zero emissions by 2045.

SAS Response

It appears that SR consider that additional LA resource should be spent granting windfarm applications to the detriment of their council tax payers and tax payers who fund the Council. The duty of a LA is first and foremost to its citizens, not a mouthpiece organisation.
Contrary to Aarhus convention, transposed into Scottish Planning Law, recent windfarm Decisions made on behalf of Scottish Ministers (eg WIN-370-2 – Arecleoch Wind Farm) give the impression that unless third parties have professionally qualified experts to represent them , their evidence will be given less weight. There can be no clearer example of the need for professional help for third parties.

3. APPOINTING AN INDEPENDENT ADVOCATE TO ENSURE THAT LOCAL PARTICIPANTS ARE NOT BULLIED AND INTIMIDATED DURING PUBLIC INQUIRIES.

SR Submission

Scottish Renewables expects all participants in the planning process to carry out their duties with professionalism and to display respect to other participants in this process.  Should any member of a planning team fall below the high standards of professional behaviour expected, this would be a matter for the reporter conducting the enquiry.

SAS Response

Unfortunately, SR do not recognise that many staff within the industry are not members of professional bodies and are therefore not bound by professional codes of conduct.

SR Submission

It is important to recognise that polling shows that 70% of the Scottish public support the building of onshore wind and welcome the benefits it will bring.

SAS Response

This is irrelevant to the issue of intimidation and bullying by windfarm developers and their agents. However, this deeply flawed and frequently quoted poll, was commissioned by SR in 2021 and conducted by ‘You Gov’.  Please refer to Petitioner’s submission of 3 August which provides an analysis of this poll.  https://www.parliament.scot/chamber-and-committees/committees/current-and-previous-committees/session-6-citizen-participation-and-public-petitions-committee/correspondence/2021/pe1864_qqqq–aileen-jackson-submission-of-3-august-2021

Having conducted our own survey of SAS members, not one person responded to say they had ever been approached to take part in any wind farm poll.

SR Submission

With regards to the appointment of an independent advocate to represent local participants. There is often a spectrum of views within a community regarding renewable energy projects. We would wish to see more detailed proposals of how such a spectrum of views would be represented, the criteria for deciding which bodies are representative of the community as a whole and how opposing views within a community would be represented before being able to comment on this proposal.

SAS Response

The views of residents within 2 miles of a windfarm development site who are not financially involved, in receipt of benefit, non disclosure agreements and whose direct family are not employed by the developer should be given precedence in the planning process.  Community Councils are supposed to represent their local community and there are rules governing a conflict of interest in voting on proposals which exclude voting by a councillor (or their immediate family) who are in receipt of financial or other benefit.  Consideration of community benefit (which does not always follow the Scottish Government guidance) is not a planning matter.   It is time constituted and elected Community Councils had a voice.

SCOTLAND AGAINST SPIN (SAS) RESPONSE TO ROYAL TOWN PLANNING INSTITUTE (RTPI) SUBMISSION OF 6 OCTOBER 2021

1. Adopting English planning legislation for the determination of onshore wind farm developments

It is encouraging that RTPI welcomes the exploration of opportunities and challenges to allow Planning Authorities (PAs) to determine more applications for onshore wind which will result in greater involvement of communities throughout the consenting process.

RTPI agrees with SAS that planning fees should be increased.   SAS makes reference to increasing fees in Petitioner’s submission of 11 June. https://www.parliament.scot/chamber-and-committees/committees/current-and-previous-committees/session-6-citizen-participation-and-public-petitions-committee/correspondence/2021/pe1864_ii-petitioner-submission-of-11-june-2021

RTPI assumes that support from the public for onshore wind is growing, with a recent poll showing 70% of respondents supportive of its deployment.

It is unfortunate that RTPI did not take the time to read the Petitioner’s submission of 3 August as it gives an analysis of this deeply flawed and frequently quoted poll which was commissioned by Scottish Renewables in 2021 and conducted by YouGov. https://www.parliament.scot/chamber-and-committees/committees/current-and-previous-committees/session-6-citizen-participation-and-public-petitions-committee/correspondence/2021/pe1864_qqqq–aileen-jackson-submission-of-3-august-2021

2. Empowering local authorities to ensure local communities are given sufficient professional help to engage in the planning process

RTPI made no response.

3. Appointing an independent advocate to ensure that local participants are not bullied and intimidated during public inquiries

RTPI made no response.

Aileen Jackson

on behalf of SAS