Campaigners seek greater 'local' involvement in wind farm deliberations
SPECIAL FEATURE by OUR LOCAL GOVERNMENT EDITOR
As the never ending flow of applications seeking to develop major new wind farms in the Scottish Borders continue to flood in, it is claimed elected councillors in the region are not always being made fully aware of the views held by their own constituents.
The projects which have the most profound consequences for communities and their landscapes are those with a generating capacity greater than 50 megawatts given the height of the towers and sheer scale of the blades.
The fate of these multi-turbine schemes rests with Scottish Government ministers rather than the local planning authority following the submission of so-called Section 36 applications to the national Energy Consents Unit [ECU]. But whenever Scottish Borders Council [SBC] objects to a particular application that triggers the mechanism which eventually results in a public inquiry.
Although the local authority is a statutory consultee in each case handled by the ECU, there is no obligation on it to invite or publish representations from community councils or members of the general public. Those letters of objection or support can be submitted to staff at the consents unit who will post them on the ECU website.
Now, a group which believes the current system is grossly unfair is campaigning for change by lobbying politicians and by petitioning SBC. The initial reaction from local planning officers has been decidedly cool.
The petition which went before a council committee last month read as follows: "We ask that the Planning & Building Standards Committee of Scottish Borders Council review the procedures currently operated by planning officers in preparing documentation (including that posted on the Council’s website), and their procedural advice given to councillors when the Committee are considering and coming to their decisions on Wind Farm Planning Applications where the final decision will be made by Scottish Ministers guided by the Energy Consents Unit under the terms of Section 36 the Electricity Act 1989.
"We particularly ask that the Committee instructs officers to include in their report to Committee representative comments and responses from Community Councils formally consulted by the ECU, and also local residents clearly affected by the application, in line with the procedures of other local authorities. In effect we are asking: can a Planning Committee member truly, exercising due care and attention as an informed, elected member of a Council, say what a Council’s opinion is on an application under S36 if he, or she, doesn’t know what their Community Council’s and constituents think?
"Direct representation to Council planning officers and a public question to Council on this subject have both effectively been stone walled, arguably in the case of the question denying that there is an issue. Policy is the responsibility of Council or its Committees, it is not the sole responsibility of either officers, or of the relevant convener. We ask that the currently operated SBC procedure in respect of the handling of S36 Applications is discussed with and agreed by the SBC Planning Committee."
John Williams, chairman of Heriot Community Council - the village has numerous wind farms close by - is one of those seeking greater input when the council is processing and commenting on each Section 36 application.
He told us: "The local authority has the casting vote as to whether an application goes to a public inquiry and a Reporter for a decision. I know of NO application that has been referred by ECU to a public inquiry on the objection of a local community council or local residents."
Mr Williams explained that neighbouring community councils were statutory consultees, and the ECU ensured these grass roots councils were consulted.
"But our responses to ECU just get posted on their portal, and that is that. ECU is staffed by civil servants on rotation — they are not planners and have no training in planning", he added.
Said Mr Williams: "So we have regularly forwarded our responses to SBC planners to inform them. But SBC has over the years gradually developed an ever more rigid policy of ignoring all such responses — they are not posted on the SBC planning website; the officer's report does not discuss them. All the planning officers do is point the Planning Committee to the ECU web site if they wish to see what local community councils and people have said."
Lead petitioner John Campbell KC, a specialist planning lawyer, has been involved in countless wind farm cases in every corner of Scotland. He addressed Borders councillors when the petition was submitted.
Mr Campbell said: "Section 36 projects represent the largest forms of development in Scotland today with the biggest impact on communities. Yet the council can make up its mind without any input from the public. How can councillors properly represent unless they listen to their constituents?
"There is a widely held feeling that the public's views are not being taken into account. But when it comes to wind farms virtually everyone does have an opinion".
In a briefing note prepared for elected members, John Hayward, Planning & Development Standards Manager at SBC, wrote: "Crucially, it is the Scottish Government, and not the Council, that is the determining authority. It is not a planning application.
"[The Electricity Act] makes no further statement as to how the planning authority should prescribe that duty internally, including on to whom that responsibility falls within the organisation. It is silent on all other aspects of the process and the expected role of the planning authority. The legislation therefore squarely places the duty of considering third party representations upon the Government in its capacity as determining authority. Furthermore, regulations direct that those third party representations are made directly to Government."
Mr Hayward also pointed out that should Councillors wish to view any community or individual comments about an application, they are able to do so by checking the ECU website, something they are actively encouraged to do within the report on the proposal that goes to the Planning & Building Standards Committee.
"They are thus able to gauge the level of opposition (or support) and the reasons for it. In the context of the limited statutory role of the Council, that is considered to be a reasonable and proportionate response", he added.
And he warned that if the approach being advocated by the petitioners were to be accepted, there would be further implications to be considered.
"Firstly, the Council will need to dedicate additional resources to administer the process being suggested. There are additional costs in neighbour notifying residents and administering the process, which it has no statutory obligation to do. Additionally, if the Council does adopt these non-statutory processes, it then places itself at risk of legal challenge if it fails to follow those procedures, even though there is no legal requirement for them to be adopted. This would seem to be creating an unnecessary additional legal risk."
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