Planning appeal rights in Scotland are not "fair"

A top UN body has backed calls from environmental and community campaigners to review planning appeal rights across Scotland.

The intervention follows repeated calls for equal rights of appeal which have been ignored by the Scottish Government.

In August 2022, the Environmental Rights Centre for Scotland, Planning Democracy, Friends of the Earth Scotland and RSPB Scotland submitted a formal complaint to the Aarhus Convention Compliance Committee (ACCC), a UN body tasked with upholding environmental rights.

The complaint has now been accepted by the committee, and they have now written to the government who must respond by 21 July 2023.

The complaint sets out why planning appeal rights in Scotland are not ‘fair’ and therefore in breach of the Aarhus Convention’s access to justice requirements.

It points to a ruling by the ACCC in Northern Ireland concluding that a lack of equal rights was in breach of the Convention. Campaigners believe that the same applies to Scotland.

Currently, only applicants (usually developers) enjoy statutory appeal rights if their planning permission is refused. Members of the public do not enjoy equivalent rights to appeal if a development is approved, even if the development will negatively impact their health and environment, or if the decision-making process was flawed.

“The only option available to affected communities is to go to court via a judicial review in the Court of Session, which the Convention’s governing bodies have already ruled as ‘prohibitively expensive’.

The complaint to the UN follows over a decade of civil society campaigning and the passage of two planning bills, neither of which addressed the issue. An amendment proposing to add equal rights of appeal to the 2019 Planning (Scotland) Act was voted down by Conservative and SNP MSPs.

Campaigners are now calling for legislative reforms to finally achieve equal rights for communities.

Benji Brown, Policy & Advocacy Officer at the Environmental Rights Centre for Scotland, said: ‘Under Scotland’s rigged planning system, developers have the upper hand. They can request a full merits review on decisions they dislike, while members of the public do not have the same appeal rights.

"If people want to speak out in defence of their environment or their community, their only option is to go to court – an action that is unaffordable for most. This situation is blatantly unfair, and in violation of the Aarhus Convention. The UK government’s cynical attempt to stall our complaint has failed, and we welcome the Committee’s recognition that the issue must be urgently investigated. There can be no more delays – it’s time for Scotland to deliver equal rights for all."

Clare Symonds, Chair of Planning Democracy, said: "Planning Democracy have campaigned for years for an equal right of appeal, and we are pleased that the Compliance Committee has agreed to take our case further. The lack of equal rights of appeal is a cause of much anger and frustration for communities, who experience discrimination in planning decisions. For years, the system has been blatantly unfair - it really is time for Scotland to resolve this longstanding injustice."

Mary Church, Head of Campaigns at Friends of the Earth Scotland, said: “It’s an absolute scandal that communities and NGOs can’t appeal against developments that harm the environment, while developers can wage a war of attrition through appeals and repeat applications if their proposal gets knocked back.

"This lack of equal rights undermines the planning system and leads to decisions that are bad for people and planet. The Scottish Government shouldn’t wait for the UN to rap its knuckles again, but should take action to level the playing field as part of its agenda to enshrine human rights in Scots Law.”

Aedan Smith, Head of Policy and Advocacy at RSPB Scotland, added: “Planning appeal rights in Scotland are archaic and wholly unfit for purpose given the imperative need to tackle the nature and climate emergency. Scotland’s appeal rights date back to a time when landowners could do almost anything they wanted with their land, no matter the impact on neighbours, communities or the environment. 

"It is essential this outdated and fundamentally unfair system is reviewed to ensure that individuals, environmental organisations and communities at least have a comparable right to developers and can access a mechanism to have the most harmful decisions reconsidered.”