Did you know that a developer has the automatic right to appeal a decision made by a Planning Authority but a community has no such right? If that doesn’t sound fair then that is because it is not. The Scottish Government has been found to be in breach of its responsibilities, under the Aarhus Convention, to provide access to environmental justice and this blog explains a bit more about it and a debate in the Scottish Parliament on the subject last week.
To put it more clearly – if a developer does not get planning permission then they have an automatic right to appeal the decision under Scottish planning law. This comes at minimal cost to them and so we find that developers will almost always appeal planning decisions, putting communities in the position of fighting the same developments again and again. On the other side of the coin, if a development gets planning permission, then the community have absolutely no rights to appeal. The only recourse they have is to bring a vastly expensive Judicial Review.
We have many members campaigning to protect their Green Belts, wildlife and landscapes in their area, who have first hand experience of this situation. Even when a community wins a campaign against a development, the developer inevitably appeals, forcing communities to start the fight all over again. However when a decision is made, even if there has been significant issues and breaches of policy, the community have no right at all to appeal.
You can read about a case study of exactly this here – in this case the decision was so counter to policies, that the council decided not to defend the Judicial Review that the community brought. However the developer then stepped in to defend the council’s decision in the Judicial Review, and the community had to back down due to the risks of escalating costs. This case led to a change in decision making processes at Glasgow City Council.
We have supported Planning Democracy’s equal right of appeal campaign for a number of years and it is very clear that, despite the many positives of National Planning Framework 4 (NPF4), we are still desperately in need an equal right of appeal in the planning system.
The lack of facility for communities to appeal planning decisions is just one aspect of the barriers to access to environmental justice faced by communities in Scotland. Scotland has been found to be in breach of the Aarhus Convention, a UN Convention on access to information, public participation in decision-making, and access to justice in environmental matters. Planning Democracy, with the Environmental Rights Centre for Scotland, FoEs and RSPB, put in a complaint to the Aahus Committee which made the case that the Scottish Government was in breach of its Aarhus commitments. The complaint was upheld and the Scottish Government should have complied with the Aarhus access to justice requirements by October 2024, but they have not.
A debate in the Scottish Parliament
Last week in the Scottish Parliament there was a debate on access to Environmental Justice, centering on the Scottish Government’s commitments under the Aarhus convention. ERCS was there and their Policy and Advocacy Officer Benji Brown has written an account of the highlights. You can also read their briefing for MSPs here which outlines the changes they want to see.
With the Holyrood Elections coming up next year we plan, once again, to campaign for an equal right of appeal. We want an equal right of appeal to be in the Party Manifestos for the Scottish General Election in May 2026.
You can read more about the equal right of appeal on the Planning Democracy website
If you want to sign up to ERCS newsletter you will hear more on their campaigns for environmental justice, a right to a healthy environment and an environmental court for Scotland.