Chamber and committees

Scotland Against Spin submission of 3 December 2021

PE1864/DDDDD - Increase the ability of communities to influence planning decisions for onshore windfarms

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 states:

• 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.
• SAS feels that 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. We refer you to the Welsh Assembly publication by the Planning Inspectorate Guide to Engaging with the Process.
• 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 states:

• 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

• In our view, 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, in our opinion, 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. We feel that they need professional expert on the ground help, not training which it appears 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 2021.

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

PAS Submission states:

• 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 in SAS opinion, 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 2021 from Rachel Connor of 11 June, Gladys Speirs of 14 June, Nigel Willis of 28 June and Audra McPhee of 29 September.