Planning & Environment

Robert blogged about the dismissal of McGinty’s legal challenge to the National Planning Framework 2 designation of the Hunterston clean coal fired power station as a national development. The appeal court has upheld the dismissal.

McGinty originally fell at the first hurdle, because he did not have standing to challenge. Since then, the Supreme Court has reviewed the law on standing – Lord Reed’s osprey and busybody tests. On appeal, McGinty was held to have standing.

On the other issues, the appeal court’s approach is meek:

“Newspaper”

The Edinburgh Gazette, as a national newspaper, met the statutory requirement for “newspaper circulating in the area to which the plan or programme relates) as will ensure that the contents of the notice are likely to come to the attention of the public”. Did the MSPs realise that when they voted for the legislation? As was argued on behalf of McGinty, planning should engage with the passive public, not just those prepared actively to seek out relevant information.

Consultation period

6 weeks was not “obviously inadequate”, despite 13 weeks having been allowed for the discussion draft NPF2.

Strategic environmental assessment

McGinty’s complaint that the requirements were not met was dismissed as, “at best, technical rather than material”. There was less need for a comprehensive environmental report because the NPF is a high level plan, and the project would be open to full EIA later.

Future consent application

McGinty could make precisely the same objections to any consent application, which severely diminished the significance of any alleged failures in the statutory consultation process. But one suspects less weight would be given to those objections because of the designation of the development in the NPF.

McGinty’s challenge has been overtaken by events – the consent application was withdrawn in June 2012, and the new NPF3 is due to be approved in June 2014. However, the appeal decision sets a relatively low standard for consultation and strategic environmental assessment for NPFs in general.

Neil Collar

Partner at Brodies LLP
Neil is a partner at Brodies LLP and consistently rated as one of Scotland’s leading planning lawyers. He is well known for both his planning inquiry advocacy and his advisory work. Neil has a particular interest in renewable energy developments.
Neil Collar