You will all remember our recent posts about Leslie Sinclair who bravely pursued legal action against the Scottish Ministers’ decision to ignore the recommendation, of two of their own Reporters, to refuse two wind farms on Orkney. https://www.orcadian.co.uk/legal-action-to-be-raised-against-oic-windfarm-planning-approval/ Sadly Leslie was unsuccessful, however he was thankfully lucky enough to have secured a Protective Expenses Order which reduced his expenses.
The Opinion of the Court can be read here
He has written up his thoughts on his experience and these are published in today’s Orcadian newspaper.
I have always had an enduring belief in the necessity for a clear framework of law to uphold the principles of a civilised society. Such a framework depends on accessible and democratic procedures for its establishment, maintenance and development.
Both The Aarhus Convention of 1971, adopted in 1998 and the UN Declaration on the Rule of Law, adopted in 2012, state that legal frameworks have a fundamental role in protecting rights and advancing inclusiveness for the greatest number of citizens, and are not solely instruments of government or vested interests.
I have lately had the advantage of access to Scotland’s highest Court, with the support of skilled solicitors and counsel, and I am grateful to the “system” that allowed me to get there. The Court was nothing if not receptive and courteous.
The planning “bible”, known as Scottish Planning Policy, tells us that the planning system has a vital role to play in making efficient use of land to deliver long-term benefits for the public “while protecting and enhancing natural and cultural resources.”
The Planning and Appeals Division (DPEA) of the Scottish Government considers and makes decisions and recommendations on a range of planning and environmental matters on behalf of Scottish Ministers. These decisions and recommendations are made by panels of experienced, knowledgeable, well-trained Reporters. In a small number of cases, Ministers may call cases in and make decisions themselves, after receiving reports and recommendations from a Reporter. Invariably, such cases have a political dimension. These were in that category.
The Appeals made in the cases of Lyness and Quanterness were submitted to establish whether the decisions of the Scottish Government to flatly contradict the Reporters’ recommendations in both cases were lawful. Both Reporters had come out in favour of the protection of Orkney’s territory from the disfiguring onslaught of yet more turbines, said to be justified (in an application by the Council to itself for planning permission) to further the cause of the mythical sea beast known as Orcadum umbilicus, or the Orkney Interconnector.
The Opinion of the Court, which of course must be shown due respect, is that the decisions taken by the Ministers were indeed lawful. The Court’s is not a planning judgment, but a legal one. That’s as it should be.
What the Opinion says is that it was not open to me to argue planning grounds, only to argue whether the Ministers’ decision was lawful; that is, it had been taken in due form and following a recognisable procedure. Such appeals don’t allow the Courts to substitute their own planning judgment, unless the Ministers were flagrantly wrong and were not entitled to reach the decision they did.
The Court said they weren’t.
We continue to believe that the tenuous link between these two tiny onshore windfarms, and the flagrantly extravagant idea of an Orkney interconnector runs contrary to principle and common sense, and are examples of very poor planning. It is very telling that in making an application to itself, these are the best sites the Council could find.
If offshore generation was even close to being a reality in Orkney’s waters, there would have been no Appeal. But it’s not. It’s as far off as ever.
To put a handful of turbines at Lyness and Quanterness, each site being special in its own way and fully protected, is nonsensical, for all the reasons so clearly given by the Reporters.
To sanction the Final Needs case for an interconnector, at vast expense, when the power is neither made nor consumed at either end, verges on pantomime.
Ah well. It’s that time of year after all!
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