Scottish legal preview 2014

2014 will be a landmark year for Scotland. Aside from major sporting events such as the Commonwealth Games in July, which will allow Glasgow to showcase its on-going regeneration...

Scotland: interesting year ahead
Scotland: interesting year ahead

... and the Ryder Cup golf at Gleneagles, there is also the not inconsiderable matter of the Scottish independence referendum on September 18.

Whatever your view on Scottish independence, the referendum is a hugely significant step for Scotland, a mere 14 years after devolution and the establishment of the Scottish Parliament at Holyrood. However, planning is a devolved function, so a yes vote for independence would have less impact than in other sectors.

Planners in England and Wales struggling with relentless tinkering by the UK Government may be envious of the relative stability in the Scottish planning system. Following significant reform in 2009, the Scottish Government has resisted the temptation to make further changes, other than the inevitable fine-tuning.

Nevertheless, there remain concerns about the performance of the planning system, following cutbacks in local authority budgets. Developers are also critical that planning authorities are not being as flexible in discussions on development viability as they claim to be.

For Scottish planning, the big event in 2014 will be the publication in June of the Scottish Planning Policy (SPP) and National Planning Framework 3 (NPF),  which has been hailed by the Scottish Government as an opportunity to "enable connections to be made between where we want to see development (NPF) and how we want to see it delivered (SPP)".

Both documents were the subject of consultation in 2013. The NPF3 draft was presented as a main issues report, whereas the SPP was published in draft form, so there is perhaps more scope for the NPF3 to look different than the SPP.

Follow-up consultation is already under way, with the Scottish Government considering introducing a presumption in favour of sustainable development into the SPP, replacing policies on sustainable economic growth and sustainable development.

There will be much interest in what the SPP and NPF3 say on renewable energy development. The drafts proposed new restrictions on development on wild land. That, and a general tightening of restrictions, has generated many consultation responses.

There is also concern that the SPP and NPF3 do not do enough to give housebuilding some "oomph". With signs of the housing market picking up, 2014 is likely to see an increase in planning applications for housing development. Many of the straightforward sites have been consented, so permissions may be harder to obtain. Even without NPPF-style provisions, housing land supply shortfalls may encourage planning by appeal, especially in the SESPlan area around Edinburgh.

Onshore wind development activity is likely to remain high. 2013 was notable for Lady Clark’s decision in the Sustainable Shetland case (Viking wind farm), that a section 36 application could only be submitted by the holder of a generation licence. In that case, and many others, the developer did not have a generation licence. The Scottish Government’s appeal against that decision will be heard in February 2014. In the meantime, the Scottish Government has indicated that section 36 and planning applications should continue to be dealt with. Although objectors were unsuccessful in their attempt to persuade the reporter to stop the Glenmorie wind farm inquiry, that might not be the end of the story.

Taking wind turbines off-shore might have seemed a way to reduce opposition, but 2013 saw the American tycoon Donald Trump’s legal challenge to the grant of consent for the European Offshore Wind Development Centre offshore wind farm near Aberdeen. A decision on that challenge will be issued in 2014. It could be seen as something of a test case for planning, as Trump is complaining about the impact of the wind farm on his golf course, which was itself granted consent by the Scottish Government. Ironically, the golf course was the subject of a public inquiry, but the wind farm was not.

A research report by law fim Brodies in 2013 highlighted the low number of successful judicial reviews of planning decisions in Scotland.  There has been much less of a litigious culture than in England and Wales. That may change with the introduction of the new rules on Protective Expenses Orders (PEOs) in 2013 which might encourage more legal challenges, especially since case law has broadened the rules on standing. There was a legal challenge (unsuccessful) to the NPF2 designation of the Hunterston clean coal power station, so the publication in June of the SPP and NPF3 might be the first major opportunity to test the rules on PEOs and standing.

Dart Energy’s coal bed methane development near Falkirk has attracted considerable public opposition. It is not fracking, but objectors have voiced concern that it could lead to fracking. A public inquiry into Dart’s deemed refusal appeal is being arranged for 2014. A key issue will be the extent to which planning controls are relevant, given the existence of other statutory controls.

2013 saw the financial collapse of Scottish Coal and the disclosure of the shortfall in funds for restoration of its opencast coal sites. The judge in a recent court case commented that there had been no discussion in court of planning issues because there was no question of Scottish Coal having the means to meet its planning obligations, estimated at £73 million for restoring the sites. Further implications for those sites, other opencast coal projects and minerals developments generally will emerge during 2014.

All in all, it is shaping up to be a very interesting year ahead for the Scottish planning system.

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