PETITION UPDATE
The last Hearing of our Petition to the Scottish Parliament was held on 21 February. You may remember that it recommended that decisions on planning applications for all onshore wind farms, irrespective of size, should be made locally rather than by Scottish Ministers. During the Hearing, we received “hot off the press” news from Fergus Ewing about the newly published Scottish Government Depopulation Action Plan which suggests that local decision making will prevail. The new approach will be “Local by Default” and National by Agreement”. If this is correct it appears that it will only apply to areas suffering from depopulation but we need more information. We have written to the Minister concerned asking for clarification and MSPs are also making enquiries.
Our Petition also requests that “an independent advocate is appointed to ensure that local participants are not bullied and intimidated during public inquiries”. Planning Aid Scotland does not take up individual cases. However, it has offered to refer any individuals/community groups seeking legal assistance to the Faculty of Advocates Free Legal Services Unit. Though very welcome, that has limitations. The Planning Bar is very small, and very busy. Every application for assistance is screened before it can be advanced for full advice or representation and that in itself is a major hurdle to overcome as many worthy cases may be filtered out. Assuming a request for help passes the criteria, help is available to individuals and community groups who cannot afford to pay for advice or representation. Legal Aid funding is not available. However, like all voluntary or pro bono work, it has some limitations. Planning cases, by their nature can ‘creep’ and change their shape and importance, and an initial engagement with a generous (and free) adviser can turn into a long journey. Reliance on professional good will has its limits.
A BETTER SOLUTION
The petition suggests that a better solution would be to fund a panel of contributing lawyers from whom a selection could be made if the person or community meets certain criteria.
Four cost effective proposals have previously been set out and are expanded upon here:
- Advertise for and constitute a Panel of contributing lawyers.
Appointments would be for a maximum of two years, and
participants would be allowed Continuing Professional
Development credit for their work. Firms and the Faculty would be
encouraged to make public their efforts in contributing to this
Scheme. Participants (or their firms, or the Faculty) would be paid
at nominal rates, and have their expenses covered.
- Where requested, provide informed legal advice and
representation to community groups to help prepare for and
participate in Public Examinations whatever their form.
- Honour both the spirit and the letter of the Aarhus Convention by
making public consultation by planning applicants both meaningful
and recorded, with complete and contemporaneous Environmental
Information Assessments being made publicly available, and with a
record of public responses being kept for the decisionmaker.
- In the same vein, impose independent scrutiny, by a legally
qualified person, of the content and manner of the public
consultation process for all windfarm or overhead line applications,
with an independent report of that consultation exercise to be
included as part of the Environmental Report.
These proposals could be financed through an increase in planning application fees with a nominally budgeted “1% for public consultation”.
A QUESTION FOR ALL OF OUR MEMBERS
Finally, as members of the DPEA Stakeholders’ Forum, we have been asked if we have any suggestions which would help make life easier for individuals and community groups taking part in Inquiries (other than providing an advocate free of charge). It was suggested that all oral processes involving members of the public, should be Hearing Sessions only (they are a more informal alternative to an inquiry session and generally make it easier and more comfortable for those taking part. Formal cross examination is not permitted but questions can be asked of other parties through the reporter.)
However, as we see it, the trouble with having Hearings only, is that developers could claim points made are less persuasive because they haven’t been tested by cross examination. It is not necessarily the case that there us anything wrong with Public Inquiries, the issue is that Reporters are not always being fair and not keeping control although to the DPEA’s credit, they have agreed, at our request to give all Reporters further training in dealing with difficult situations, including bullying.
It is the rule at the present time that you cannot speak at a public inquiry, unless you have submitted something in writing in advance. Even during evening sessions held for the public, you must produce written submissions in advance which are then read out. Frankly, that is pointless because as no-one is allowed to ask any questions, they could easily be read in an office. Also, many people find it difficult to write down what they think.
When organising a group, one of the hardest jobs is to get people to put pen to paper. By relaxing the rule which requires written submissions in advance, and simply saying on Day One that ” if anyone wants to speak, then let them log in at the beginning of the inquiry and come to a “public Session” later on”…. The objective would be fulfilled. It is the Reporters’ obsession with having everything tied to actual written witness statements with notice being given in advance that makes it difficult for people to be spontaneous, and to speak in the light of what they actually hear at the Inquiry itself.
This is not a revolutionary suggestion. It always used to be the case that people could come along at a given time and say what they thought. Generally people were well mannered, not extreme, and responded well to a Reporter’s questions. Parties’ representatives could ask questions, but only through the Reporter.
So, it is over to you. You don’t need to have taken part in an Inquiry/Hearing to give an opinion. Please let us know your thoughts by contacting us through the website or our Facebook page.
Many thanks.
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