for Sunday Herald, 22 October 2000
Scotland's planning system is in tatters as a result of the Court of Session's condemnation of the Scottish Executive for failing to decide on plans for a superquarry on the island of Harris.
Both developers and conservationists say that new European human rights law - on which last week's superquarry judgment was partly based - will undermine hundreds of planning decisions on different types of developments because they are now open to legal challenge on the grounds of delay or unfairness.
"The cosy assumptions that have underpinned Scottish planning for decades have been thrown into chaos," said Martin Sales, the partner responsible for planning law at Burness solicitors in Edinburgh. He represents Lafarge Redland, the French company which is seeking planning permission to dig the superquarry on Harris, and which won last week's verdict.
"It is no exaggeration to say that there will be hundreds of challenges to planning decisions of all kinds under the European Convention of Human Rights. And if the Scottish Executive continues to stick its head in the sand, the system could collapse as a result," he said.
He compared the crisis to that already suffered by the criminal justice system after a ruling that temporary sheriffs were illegal under the human rights legislation last November. "There are now good grounds for challenging unreasonable delays in reaching planning decisions, as well as challenging the impartiality and fairness of inquiry reporters and government agencies funded by the Scottish Executive. It has become a legal minefield."
From the other side of the argument, environmental groups also foresee manifold problems for planning from European human rights law. Lloyd Austin, head of policy operations at the Royal Society for the Protection of Birds (RSPB), agreed that the superquarry decision, allied with another recent verdict on a listed building in Glasgow, "raise important questions about the planning system's compatibility with the Human Rights Convention."
But he pointed out that local communities and environmental groups had gained the right to challenge decisions they did not like, as well as developers. "For instance, ensuring fairness and impartiality may require introducing third party rights of appeal or enabling the merits of a case to be heard by an impartial tribunal," he said.
In a scathing ruling on Wednesday, the day of Donald Dewar's funeral, the Court of Session judge, Lord Hardie, said that the Scottish Executive's delay in reaching a decision on the Harris superquarry "was of scandalous proportions". Redland Aggregates - now Lafarge Redland - first applied for planning permission for the superquarry to extract rock for road and rail building nine and a half years ago.
Hardie ordered the executive to make a decision, and made it clear he expects that to happen within 21 days. Although civil servants and ministers have not yet decided what to do, most observers now believe that they are left with little choice but to grant planning permission for the superquarry in line with the recommendation of the inquiry reporter, Gillian Pain.
The Sunday Herald can reveal, however, that the prospect of a go-ahead is likely to be greeted with more legal action, this time from the environmental groups that oppose the development. On Friday Friends of the Earth Scotland, the RSPB and the World Wide Fund for Nature begun investigating grounds for challenging any decision that fails to take account of the collapse in demand for aggregates since the superquarry was first proposed.
Kevin Dunion, the director of Friends of the Earth Scotland, pointed out that the Quarry Products Association, of which Lafarge Redland is a member, is now forecasting an annual demand of 215 million tonnes of aggregate for the next 20 years. This compares to the 426 million tonnes predicted for 2007 and subsequent years by Redland Aggregates in 1992.
Because of the halving of demand, Dunion argued, even if the superquarry were to be given the green light, the company would not actually start building it for a least a decade. "We are not prepared to walk away from this and let the executive take a decision that would be so wrong for Harris," he said.
The environment groups are seeking a legal opinion from Queen's Counsel on whether they could force the executive to take account of the collapse in demand prior to making its decision on the superquarry. They are also examining whether they could take ministers to court afterwards, if they make a decision without considering demand.
It would be ludicrous, environmentalists claim, if the executive based its decision solely on the recommendations of an inquiry that is now five years out of date. "If the executive does give the go ahead to this development, the local economy is likely to be blighted for at least a decade," added Simon Pepper, director of WWF Scotland.
But if ministers were to agree with the environmentalists and surprise everyone by rejecting the superquarry application, they would also face court action from Lafarge Redland. "I think it is almost certain that I would be instructed to appeal refusal," said Sales, the company's lawyer.
The situation is compounded by growing uncertainty over the future of the Scottish Environment Minister, Sarah Boyack, who may fall prey to a cabinet reshuffle in the next few days. The Scottish National Party last week called for her resignation for mishandling the superquarry fiasco.
Boyack prompted the court challenge from Lafarge Redland by asking Scottish Natural Heritage (SNH), the government's conservation agency, whether the site of the superquarry contained enough endangered wild plants for it to gain legal protection against development. This was seen by many as an attempt to block the superquarry.
If so, it has failed spectacularly. SNH, which finally delivered its confidential advice to the minister on Thursday in the wake of Lord Hardie's judgment, has concluded that the superquarry site is not of sufficient scientific interest to justify being protected as a special conservation area.
Bizarrely, though, Boyack and other ministers cannot at the moment even consider this advice. "We are currently considering whether or not we should appeal the judgment," said a spokeswoman for the Scottish Executive, "and in these circumstances it is inappropriate to consider SNH's advice."
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