iPlanning - November 2013
Published byFraser Gillies
Welcome to iPlanning - WJM’s round-up of the latest planning news and decisions. In this issue we cover new guidance issued on EIAs, consider the NPF3 and SPP consultation responses published and highlight some changes to the English Planning System. We also consider two key decisions: the judicial review of the Stronelairg wind farm and the decision of the Aarhus Compliance Committee on the legality of the UK’s National Renewable Energy Action Plan.
We hope you find this issue as helpful as ever and we will be back shortly with more planning updates.
- Planning News
- New Guidance Published on Environmental Assessment
- NPF3 and SPP Consultation Responses Published
- Round-up of changes to the English Planning System
- Renewable Energy Planning News
- Legal Challenge to Stronelairg wind farm
- Decision from the Aarhus compliance committee questions validity of UK Planning System
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Planning News
New Guidance Published on Environmental Assessment
The Scottish Government has published a new Planning Advice Note on Environmental Impact Assessment (EIA) and updated guidance on Strategic Environmental Assessment (SEA).
Planning Advice Note 1/2013 contains new guidance to replace PAN: 58 and contains advice on the integration of EIA procedures into the overall development management process. It brings the EIA guidance fully in line with current regulations. The PAN explains the role of individual planning authorities and that of the consultation bodies in the EIA. It is designed to be a point of reference for developers and consultants on working towards conducting a more effective EIA. The PAN does not provide technical guidance, but does set out what Planning Authorities and Consultation Bodies will expect to see in an Environmental Statement that is proportionate and “fit for purpose.”
The PAN is complimented by updated guidance on the carrying out of an Strategic Environmental Assessment. The new guidance on SEAs emphasises the importance of some key assessment principles which those bodies carrying out the SEA should find helpful. Practitioners are not bound to carry out the SEA in terms of this advice and may opt for other methods if these meet the objectives of the SEA.
NPF3 and SPP Consultation Responses Published
In April 2013, Derek MacKay MSP, Minister for Local Government & Planning, launched the National Planning Framework 3 & Scottish Planning Policy Review.
The purpose of the National Planning Framework (NPF) provides a framework for the spatial development of Scotland. This NPF will set out the development priorities of the Scottish Government over the next 20-30 years, along with reasonable alternatives. The NPF can designate “National Developments” which are in the National Interest. Fourteen have been proposed in the NPF3 Main Issues Report, on which consultation responses were published on 2nd September.
The Royal Institute of Town Planners (“RTPI”) commented on the draft as follows:
There is a requirement for certainty, clarity and a clear hierarchy within NPF3 and SPP. The Scottish Government should ensure that NPF3 and SPP are documents which influence other Government strategies, like the National Marine Plan, the Infrastructure Investment Plan and the Land Use strategy. The response also highlighted how to deliver the aspirations set out in the drafts, saying that in order to have development effectively delivered, NPF3 should link with other development proposals including Tax Incremental Financing, Compulsory Purchase Orders and Prudential Borrowing. The full comments from the RTPI on the drafts can be found here.
The responses also indicate concerns from the Renewables industry with SNH’s wild land mapping and the references to this in the draft SPP. There is a concern relating to the mapped areas of Wild Land being too large, with Scottish Renewables criticising the methodology used by SNH for identifying core areas of Wild Land in their response. The key industry concern is that too many restrictions on onshore wind projects will stifle development and adversely affect the prospects of achieving the Government’s 2020 Renewables targets.
All of the comments received will be taken into account in drafting the proposed NPF3 and finalised SPP. This exercise will take place during the summer and autumn of 2013. More recently Derek Mackay announced that publication of the final SPP would not take place until such time as the Parliament had the opportunity to debate the final draft. SNH have also now confirmed that they will undertake a consultation on the wild land mapping process – although the extent to which they will be willing to make changes to the final conclusions in response to any consultation responses remains to be seen.
Round-up of changes to the English Planning System
The English Planning System is to undergo a change as a result of new laws and amendments which will come into force on the 1st October. These include changes to appeal procedure, and reforms which simplify the process required for conservation area planning consent. There are two procedural changes as explained below:
New Planning Fees
- Planning Application Fees are to be refunded to the Applicant if their Application is not determined within 26 weeks (unless a longer time period for determination has been agreed with the Applicant).
- An £80 fee is to be charged for Permitted Development applications. This will apply to applications for prior approval of permitted development under Schedule 2 of The Town and Country Planning (General Permitted Development) Order 1995 where (i) there is a material change of use and (ii) where the applicant is not submitting an application for planning permission at the same time.
Designation of Underperforming Local Authorities
- The Growth and Infrastructure Act 2013 inserted s.62B in the Town and Country Planning Act 1990. It contains a provision that a local planning authority will be ‘designated’ if it is considered to be underperforming.
- If the LPA is “designated” certain planning applications can be made directly to the Secretary of State and there will be no difference in fee for this application. The criteria for a local planning authority being “designated” will be set by the Secretary of State and will assess the Local Planning Authority on speed of performance and the extent to which decisions are overturned.
Renewable Energy Planning News
Legal Challenge to Stronelairg wind farm
The John Muir Trust has lodged a petition at the Court of Session for the judicial review of The Highland Council’s decision to raise no objection to an 83 turbine scheme at Stronelairg, south east of Fort Augustus.
However, the Councillors voted not to object to the development, and it is this decision that the JMT is challenging, on the grounds that the Highland Council’s South Committee fundamentally misinterpreted the policy that they are required to consider in assessing applications of this scale. The JMT sought its own legal advice which it claims indicates that the decision was based on a misinterpretation of three key pieces of planning policy - the National Planning Framework (NPF), Scottish Planning Policy (SPP) and the Highland-wide Local Development Plan. Both NPF and SPP recognise the importance of Wild Land areas and the need to safeguard it. The Monadhliath area is recognised by Scottish Natural Heritage as one of the key areas of core wild land in Scotland.
In the light of these frameworks, the JMT’s opinion is that the Council acted unreasonably and unlawfully by not objecting to the scheme. The Trust further points out that the Council has recently raised objections to smaller schemes at Glenmorie and Dalnessie, on the grounds that they are on Wild Land. The Trust’s view is that it is inconsistent of the Council to have objected to these schemes but not to the 83 turbine scheme at Stronelairg.
The JMT has confirmed that the legal action is not based against the Councillors, who have to rely on expert advice presented by officials. It believes that the advice received by the Highland Council was “flawed and fundamentally in conflict with the existing local and national planning policy – which states explicitly that authorities should safeguard the character of wild land areas. In the light of existing and emerging planning policy frameworks, the decision to not object to the Stronelairg application was, in our opinion, both unreasonable and unlawful” (John Hutchison, Chairman of SNH)
Decision from the Aarhus compliance committee questions validity of UK Planning System
The UK is a signatory to the Aarhus Convention, which requires public participation on all environmental issues to ensure that citizens are given the right to participate in environmental decision-making.
The communicant, Christine Metcalfe complained to the UN Aarhus Convention Compliance Committee (ACCC), based in Geneva, that at no stage in the the development of the UK Renewable Energy Strategy (UK RES) and National Renewable Energy Action Plan (NREAP) was any attempt made to inform those living in rural Scotland of these programmes and as such had not been subject to the requisite level of public scrutiny.
Ms Metcalfe’s complaint was that the authorities at the EU, UK and Scottish administrative levels did not provide information to the public about implementation of the UK RES and NREAP, and two specific projects – an onshore wind farm ( Carriag Gheal) and a 35km access route.
In terms of the draft finding, the ACCC found that the NREAPs are “plans or programmes” under article 7 of the Convention and are required to be subject to public participation. The purpose of the NREAP is to bring together the objectives and implementation mechanisms set out in the renewable action plans in different parts of the UK, including in Scotland. The UK contended that as the NREAP did not set the framework for consent applications for renewable energy projects a SEA was not required.
The UK NREAP is based on the UK RES, which was developed following consultation with the Devolved Administrations, regional and local Government, other public groups and members of the public. Despite the fact that the UK RES had been subject to public participation and informed the NREAP, the Committee still found that the UK was in breach of its obligations under Article 7, given the difference between the UK RES’ and NREAP’s status and function in the UK and EU legal framework. Ms Metcalfe had also alleged that renewable energy policy documents in Scotland (The “Scottish Renewables Action Plan”, The “Scottish Renewables Routemap” and the “Electricity Generation Policy Statement”) had not been subject to the requisite public scrutiny. However, the Communicant accepted that these documents had been subject to Strategic Environmental Assessments and did not continue to challenge their Convention Compliance.
It has been reported in the media that this case could radically change the planning system, as NREAP was not convention-compliant. The argument is that as NREAP was not adequately consulted upon (and as a result is in contravention of the Aarhus Convention) then any decisions based on NREAP are liable to challenge.
However, the Committee’s conclusion was that the UK was not Convention-Compliant, but this does not invalidate the NREAP. The recommendation to the UK was to “submit plans and programmes similar in nature to NREAPs to public participation [in future] as required by article 7.” (Para 108 of Draft findings).
The question is whether this decision will have any ramifications for planning decisions.
It is unlikely that development management decisions will be delayed as a result of the finding. The NREAP is not a planning document informing planning decisions, and all other relevant policies and materials put before the Commission were found to be compliant, which the Communicant accepted. Industry body Renewables UK are of the view that the finding would only affect a future NREAP. The purpose of the NREAP is to provide details on a set of measures that would enable the UK to meet its 2020 Renewables target. This includes a Framework for Action on the UK Renewables Policy, but it is not a planning document with a formal role in the planning process. The Department for Energy and Climate Change has confirmed this, saying, “There is no formal role for the NREAP in planning decisions.” As such, the Committee’s finding should have no effect on planning decisions or on planning policy.
Further, it is necessary to consider the place of the Aarhus Convention within the UK legal framework. The Aarhus Convention is a UN Treaty, which is International Law. The UK ratified the Convention in 2005, which simply means that as matter of International Law, the UK is bound by it. The ACCC has made a number of findings of UK non-compliance in relation to access to environmental justice, specifically with regard to the matter of costs in environmental litigation. This did not lead to any immediate change in domestic the law to ensure Convention compliance.
The decision is unlikely to affect renewables planning policy in the dramatic way it has been reported in certain parts of the media. It could be that the public consultation for a future NREAP would have to be increased so that the consultation process is Convention Compliant, or that the weight given to the current NREAP will be reduced.
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