SNP – Scottish National Planning?

Scotland, the home of golf and an incredible number of golf courses is debating about yet another course. Donald Trump, the American multimillionaire applied for permission to establish a new ‘world class’ golf development complete with two championship golf courses and 1500 homes. Yet, rather than being grateful and hailing the millions of dollars potentially coming into Scotland, the nation is split into two camps. The crux is multi-layered – the golf course itself would impinge on one of the major conservation areas in the Northeast of Scotland; the residential development provides places for 1500 people without providing all the facilities and amenities that one would need in life – no shops, no medical surgery – a small town with just residences. The fear therefore is that it is only for the American super-rich and traffic in the area would significantly improve. Oh, by the way, it appears that one farmer has not agreed to sell his lands right in the middle of the prospective golf course, so there might just be another problem. On the plus side, though, many people hope for Trump’s millions to boost the local economy and industry, the creation of new jobs and the entrenchment of Scotland’s place on the global golf atlas. Emotions are running high and Scotland’s Northeast is polarised. But where is the legal aspect? Coming up, right here, stay tuned.
As if this controversy was not enough, a procedural dispute is added by the Scottish ‘Government’
[1]. Aberdeenshire Council, the competent planning authority, decided to decide on the planning application in its Infrastructure Services Committee (ISC). The application got rejected by the narrowest majorities possible – the casting vote of Committee chairman Councillor Martin Ford. The next day Finance Secretary John Swinney called the application in because of the national importance of the development.[2] The Scottish ‘Government’ obtains the right to call in applications from section 46(1) the Town and Country Planning (Scotland) Act 1997[3]. Yet, this is supposed to happen before the decision on the application. The Secretary of State can require any application ‘to be referred to him instead of being dealt with by planning authorities.’[4] And it makes sense at that stage, as there may be planning decisions that affect more than just a region so that all consequences can only be fully assessed on an higher level. However, the decision was taken by the planning authorities. Why exactly did the ‘Government’ call the application in before the decision was taken? The project and its importance have by no means be secret. Did the ‘Government’ assume the ‘right’ decision would be taken anyway due to the SNP majority in the Council? After the planning decision, the applicant has the right to appeal the decision or re-submit the application.[5] Notably, the Trump Organisation decided to do neither.[6] The existence of an appeal procedure to the Secretary of State (Section 47 Planning Act 1997) re-enforces the view that the ‘calling in’ of an application is not supposed to ‘correct’ a lawful application refusal. There are two ways for a Secretary of State to correct a lawful planning decision. The applicant can appeal against a rejection of an application or an attachment of conditions, section 47 Planning Act 1997. In contrast, sections 65, 68 Planning Act 1997 provide a procedure for the Secretary of State to amend a granted planning permission on its own initiative, where he considers this ‘expedient’. None of these procedures is applicable here. The Trump Organisation did not appeal and the application was refused.
The SNP later claimed that the ‘application’ was called in when there was still a question whether or not the Committee’s decision was final. As lawyers we might be inclined to accept that there can be doubts about the correct interpretation of any rule, even though it kind of makes the competent Minister (and its office staff) of the Scottish ‘Government’ appear as if he (they) would not know the planning procedures very well, highlighting the two (legal and non-legal) meanings of the term ‘competence’. Yet, even granted such doubts, it has been established since then that Committee’s decision was, indeed, final.
[7] So, how can the Scottish ‘Government’ possibly attempt to base any decision on such doubts? By law the decision was final from the time it was taken. Doubts about that cannot affect its legal status. Thus there was no application any more for the ‘Government’ to call in. The original application had been rejected. The procedure was closed.[8]
Curiously, this happened after Alex Salmon, First Minister of Scotland, met Donald Trump in a five-star hotel in Scotland.[9] The Scottish ‘Government’ claims there was no connection whatsoever between the two events. Salmon, and subsequently the SNP, later argued he was entitled and even bound to do so as constituency Member of the Scottish Parliament.[10] The matter concerned his constituency and he had previously met the opposing farmer and ‘Sustainable Aberdeenshire’, a local group opposing the project, too.[11] Why exactly he drove to the meeting in his First Ministerial car and why the meeting took place well outside his constituency[12] remains open so far. (Note in contrast that the meeting with ‘Sustainable Aberdeenshire’ had to be in his constituency office and appears to have been difficult to arrange. [13])

Epilogue:
Two weeks after his casting vote on the matter, the Committee’s chairman got sacked from that position.
[14] Aberdeenshire Council voted him out 26 to 10 with 29 abstentions.[15] This might be yet another evidence for the controversy of the decision and prove that the majority of the Council was unhappy with the substance of the decision. However, it also leaves a feeling of unease, because he appears to have been sacked for doing his job, not to mention the shadows it casts over the integrity of the planning system.[16] As Councillor he was democratically entrusted by his constituency with making decisions on their behalf. So he did. The Council considered him trustworthy enough to chair the Committee. So he did. This potentially included a casting vote. Such he gave. His decision in its substance may not have been to everyone’s liking. Yet, he did exactly what he was elected for – by the people and their representatives. The assessment of the sacking depends on the nature of the Chairman’s position. Should the Chairman base his or her decision on what he or she believes is the Council majority or rather on what he or she personally believes to be the right decision on the specific matter for the applicant and the people? The unease about the sacking stems from his making a difficult decision on behalf of the people – as was his job – but getting the Council majorities in a highly controversial matter wrong.
There may well be a reason to reconsider the planning system and leave such controversial and important decisions to the full Council, so as to enable a wider representational basis.
[17] However, at the same time the Council should re-assure the people of the Northeast what the planning process is for. The leader of the SNP group on Aberdeenshire Council, Joanna Strathdee, said that the confidence in the planning process would need to be restored. Interestingly, she talked about the business’ and wider community’s confidence whilst at the same time attempting to show to the world that ‘North East Scotland really is open for business and serious about inward investment.[18] Should we wonder at this point whether ‘Sustainable Aberdeenshire’ and the ‘Royal Society for the Protection of Birds’ representing local people and environmentalists and opponents of the project are not within the wider community? Is the planning process in the Northeast of Scotland only supposed to help business?[19] The Trump incident makes it appear as if it was open to financial pressure or even ‘blackmail’, in which you can buy your planning permission if only your bid is high enough. Can politics trump a due planning process? What is the view of the Scottish National Party?
After all this, can the Scottish ‘Government’ still reject the project? Politically, they would lose the rest of their credibility. Yet, if they grant planning permission, there should great opportunities for specialists in planning law. It should be possible to prove a lack of objectivity in the planning process of this case.
It appears that the Scottish ‘Government’ has not served its people very well here.



[1] To explain the quotation marks for the non-Scottish reader, devolution only knows a Scottish ‘Executive’. The Scottish National Party, SNP, however, decided to re-brand the ‘Executive’ into ‘Government’. Thus, London refers to an ‘Executive’, Edinburgh to a ‘Government’.
[2] http://www.aberdeenshire.gov.uk/news/release.asp?newsID=599
[3] Hereinafter referred to as Planning Act 1997.
[4] Section 46 (1) Planning Act 1997, emphasis added.
[5] http://news.bbc.co.uk/1/low/scotland/north_east/7126667.stm
[6] Cf. the statements in http://news.bbc.co.uk/1/low/scotland/north_east/7127760.stm and http://news.bbc.co.uk/1/low/scotland/north_east/7126667.stm
[7] http://news.bbc.co.uk/1/low/scotland/north_east/7126667.stm
[8] Therefore, (SNP) Council Leader Anne Robertson’s comment, "If the decision of Ministers to call this application in keeps it alive, then we welcome this intervention." (http://www.aberdeenshire.gov.uk/news/release.asp?newsID=599) is inherently wrong. Legally, the was nothing that could have been kept alive. Instead, the ‘calling in’ would have to be seen as
a reanimation attempt.
[9] http://news.bbc.co.uk/1/low/scotland/north_east/7135266.stm
[10] http://news.bbc.co.uk/1/low/scotland/north_east/7135266.stm and http://news.bbc.co.uk/1/low/scotland/north_east/7142344.stm
[11] http://news.bbc.co.uk/1/low/scotland/north_east/7135266.stm
[12] http://news.bbc.co.uk/1/low/scotland/north_east/7135266.stm
[13] http://news.bbc.co.uk/1/low/scotland/north_east/7135266.stm
[14] http://news.bbc.co.uk/1/low/scotland/north_east/7139605.stm
[15] Three Councillors were not present for the vote. Cf. www.aberdeenshire.gov.uk/news/release.asp?newsID=601, http://news.bbc.co.uk/1/low/scotland/north_east/7139605.stm
[16] In this regard, I would very much agree with the concerns voiced by Councillor Ford. Cf. http://news.bbc.co.uk/1/low/scotland/north_east/7139605.stm
[17] Cf. http://www.aberdeenshire.gov.uk/news/release.asp?newsID=601 and http://news.bbc.co.uk/1/low/scotland/north_east/7126667.stm
[18] http://news.bbc.co.uk/1/low/scotland/north_east/7139605.stm (emphasis added).
[19] Joanna Strathdee, SNP leader Aberdeenshire Council, considered Councillor Ford’s position as Committee chairman as untenable because of his decision.

Comments

Jernej Letnar said…
I am strongly against bashing any part of the Scottish political sphere on this blog even though this would be made through legal camouflage. For once, let us try to be objective. It was not Scottish Government who has not served its people very well, but the Chairman of the Committee who misused his casting vote to tilt the balance in his favour. It has been often argued that foreign investments undermine protection of environment and of human rights. This is no longer true if joined with commitments on investor’s part for respect of relevant standards. I would appreciate very much if anyone attempts to break following challenge? How to go about investments which bring added value to local and national economy? To me this is a crux of the whole thing and something we should be very candid and thorough about. Let us be clear, Trump does not intend to build a nuclear power plant at Balmidie, but a golf course.
I can for one not see how Gerd’s post should be considered ‘political sphere bashing’. It points to some obvious shortcomings and irregularities in the dealing with the planning application for Trump’s resort by the central Scottish government. In this respect, it is no more open to accusations of ‘political bashing’ that the previous reply is open to accusations of support for the resort ‘through legal camouflage’ on its own. That is the nature of a discussion.

In addition, how is it possible for the chairman to “misuse” his casting vote simply by voting in line with his considerations? In my eyes, a publicly elected official must be considered to be representing the opinions of the people of his/her constituency. The official made his/her opinions and deliberations known when standing for election and the public then chose the candidate they felt most comfortable with. Obviously, it is difficult for the public to know, when voting for a candidate, how he/she will act in some specific future situations but if they in retrospect do not approve of his/her specific behaviour, provided his/her actions are within the law (and it must be assumed that casting a vote when acting as a chairman for a committee falls within the law), then the only remedy available for them is to elect another candidate come next election.

As to how to go about foreign investment, the main bottom line must be that it ought to be treated as any other investment. I am neither for or against foreign investment in general (it often represents a rare opportunity of development for less-developed countries) nor this specific golf resort in particular. However, it is paramount that the procedural safeguards and checks and balances that are in place on a national level do not go out the window when foreigners wave the chequebook. Regardless of whether we are talking nuclear power plants or golf resorts.
Jernej Letnar said…
Again, I am asking you to assume objective point of view. On a very idealist level one could subscribe to what you are saying. However, deep down, the things are not about procedural safeguards, they are about dirty politics, connections, nepotism and clienteles. Everyone who merely employs positivistic understanding of law, without examine its application in reality, errs in his judgement. There is no doubt that procedural safeguards should be observed. But what matters can be found beyond the pure normative form of positive law. This is where the present post completely misses the point. In other words, one should be investigating who de facto did what to influence the decisions in first place. Without doubt, the Chairman and Committee members who have voted against the decision did not play any less dirty politics than supporters of the golf resort did. This decision has nothing to do with law but with dirty daily politics, which has parallels in every society worldwide. Again, subsequent developments confirm such conclusion.
I certainly agree with you when you say that one ought to examine the law’s application in reality. But then to go on to say that the current decision has nothing to do with law would appear to miss the very same point. Firstly, ‘dirty, daily politics’ do not operate in a vacuum where the law does not apply. Secondly, the specific dispute in relation to the golf resort highlights this, although some would perhaps argue that Scottish planning law in certain aspects appears peculiar. Thirdly, as for procedural safeguards, I cannot see how their application belongs in the category of ‘very idealistic level’.
Unknown said…
Trump's resort has nothing to do with golf. There are 3 world-class golf courses within 20 miles. He wants to sell homes, holiday homes, and build a 5-star hotel. This despite destroying important archaeological areas, wildlife areas and the like. I don't see how this is anything other than a blatant power-grab. I think Gerd's criticism is right on.
Gerd Koehler said…
Thanks to everyone for joining in the debate. I’m happy to see that our ‘alumni’ check back occasionally. :-)

Prologue:
I guess, I have to plead guilty to being a bit polemic in my original post. I certainly did not want to bash any party for its general political objectives here. It just happened that one party is in charge in the ‘Government’ and the latter made a huge mistake in my opinion. And the party’s abbreviation lends itself quite nicely to a play on words. Oh, and I stick to the ‘Government’ terminology in an attempt to use the least offensive version to either side of the unionist – Scottish nationalist spectrum. Coming from a federal country I would be happy to say Government. Yet, devolution is just short of federalism and the Scottish ‘Government’ gains its legitimacy and powers to a significant degree from the Devolution Concordats concluded with Whitehall, so I hasten to adopt entirely the self-given title of this ‘Government’. In Germany, in contrast, every state is in principle considered a state in its own right, but together they form the Federal Republic. All in all I was not trying to attack the Scottish national movement in my post.

First and final Act:
I admit envisaging lawyers more as highly skilled craftsmen rather than artists, completely free in their creativity.(1) This is why I insist on sticking to the procedures in the Planning Act Scotland (1997). Unfortunately I have to take the Planning Act from what I perceive its face value to be. I am more than happy to learn if I am misinterpreting the Act.
On the substance I plead guilty to not actually having made my own mind up as to whether I support the development or not – simply because I do not know enough details and I do not (yet) feel sufficiently attached to change that. The decision seems to be a VERY difficult one with very good arguments on either side, which is why there was no majority in the ISC and it needed the casting vote in the first place. In this light I would happily question Councillor Ford if there was no way for the decision to be deferred so that the Trump Organisation gets a chance to amend its plans with regard to the complaints or grant planning application with (environmental) conditions attached.
Yet, in particular in such controversial matters it is most important to stick to procedures. The decision has to be taken at some point, somewhere. In order to keep the decision as objective as possible, sufficiently representing all people concerned, democratic societies establish decision-making fora in advance. Now, one might question if the ISC was the appropriate forum for such an important and controversial decision. Yet, would the full Council(2) as the concerned local authority be the appropriate forum or the ‘Government’ because of the national importance? And which of these fora would manage to keep ‘dirty daily politics’ outside?(3) If the latter, why did the ‘Government’ not call in the application earlier? And why did it use its power in this at the very least ‘unprecedented’ way? Why not wait for an appeal or even an unamended re-application which the ‘Government’ could call in immediately? As far as I understand this procedure was considered by some, even though my legal gut feeling would certainly question this procedure.
It is by opening its flank side so much to easy attacks by opponents of the project that the ‘Government’ has served its people badly. The integrity of the planning system in general is called into question. And if the ‘Government’ granted planning permission would it not appear that this outcome of the new planning process at ‘Government’ level was inevitable and thus be suspected of having been bought by American Dollars? Now, if one supported the Trump project this time around, what if the money backed a more detrimental project the next time? This is why I would like to insist on following procedures.

Epilogue:
Sorry about using this strange format, it is still difficult for me to use more sophisticated means here.

(1) AG General Colomer (quoting A. Nanclares Arango) refers in his opinion in Joined Cases C-11 & 12/06 to three types of lawyers:
1. ‘pure machines, who with their bare hands produce judgments in series and in vast amounts without climbing down into the areas of the human and of social reality’ (my translation, original: ‘wahre Automaten, die mit bloßen Händen Urteile in Serie und in rauen Mengen produzieren, ohne in die Bereiche des Menschlichen oder der sozialen Ordnung hinabzusteigen’)
2. ‘highly skilled artistic craftsmen using their hands and brains whilst yielding to the conventional interpretation rules, that lead them inevitably to carrying out the legislator’s will’ (my translation, original: ‘Kunsthandwerker, die Hand und Hirn benutzen und sich dabei den traditionellen Auslegungsregeln unterwerfen, die sie unweigerlich dazu führen, den Willen des Gesetzgebers ohne weiteres umzusetzen’)
3. ‘creative artists who with the help of their hands, minds and hearts open further horizons for the citizens without turning their backs to reality and the specific facts in each case’ (my translation, original: ‘Künstler, die mit Hilfe der Hände, des Kopfes und des Herzens den Bürgern weitere Horizonte eröffnen, ohne der Realität und den konkreten Sachverhalten den Rücken zu kehren’).
I admit preferring the second when it comes to judges. Although the situation in common law countries might be slightly different, I feel that judges lack the legitimacy for making law, and certainly so, when the legislator has pronounced its view in legislation.
(2) Nevertheless, I would not dare to predict the outcome in the full Council, for instance, considering that more Councillors abstained from the vote of no confidence than actually voted against Councillor Ford. If one wanted to play with arithmetic one could even argue that the majority of the Council was not in favour of sacking him. All this just proves the complexity and controversy.
(3) In fact, these seem to be quite political not only administrative institutions, so maybe they are the right place for daily politics?!?

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