Proposals to build a new coal-fired power station at Hunterston on the west coast of Scotland reach a critical stage today (Tuesday 16 November) with the start of a Judicial Review into the plans.
The judicial review, which will be heard at the Court of Session in Edinburgh, is challenging the Scottish Government’s decision to include the development as a National Development in the National Planning Framework.
Inclusion of the proposal as a National Development establishes the need for the development, which means that only detailed matters such as precise siting and design will be able to be negotiated at the application stage; the principle of need cannot be challenged – even if evidence shows that a new coal plant is no longer required.
Flaws in the consultation process, together with a lack of consideration of alternatives to the proposal, form the grounds on which the legal challenge is being brought forward.
In March 2010, a majority of the Scottish Parliament voted to support a motion against the Hunterston proposals and just last month Scottish Labour restated its commitment to clean coal as their Environment spokesperson Sarah Boyack said that her party would not support coal power generation without effective carbon capture technology.
She told the party conference in Oban that the party would not consent to new, non-replacement fossil-fired power stations and called on all parties to make a similar commitment. Liberal Democrat environment spokesman and former Environment Secretary Ross Finnie MSP has also voiced his party’s oppositition to the plans.
Marco McGinty, a local resident and birdwatcher who lives close to the proposed site, is bringing the challenge, with the backing of a broad coalition of non-governmental organisations, charities and faith groups. These include RSPB Scotland, Planning Democracy, WWF Scotland, The Scottish Wildlife Trust, FoE Scotland, The Church of Scotland, Christian Aid, Oxfam and the World Development Movement Scotland.
Marco said: “For more than a decade I have birdwatched at this site, which is now threatened by this hugely damaging proposal that would destroy a nationally scarce habitat and significant section of an important SSSI. The proposal was included as a National Development in the NPF without any meaningful attempt to consult local communities and I myself first knew of its inclusion after the decision was made. Local people have been denied a voice and I have been left with no option but to take this course of action to put a stop to this inappropriate development, to protect a valuable part of our local environment and to ensure that, in the future, communities will be consulted properly with other major developments.”
Clare Symonds, of Planning Democracy, said: “All too often, as with Hunterston, it is easy to force through unsuitable projects and bypass community opposition, safe in the knowledge that local people will not be able to afford the legal costs of a challenge. This case puts this high-handed approach on notice and we hope the result will ensure that Government consultations become genuine opportunities for local people to influence developments that affect their health, environment as well as the climate. Unfortunately, the NPF seems to act as a way of shutting down public debate about important issues such as energy. It is crucial for our democracy to open up 'national developments' to full public scrutiny.”
Tony King, Head of Policy at the Scottish Wildlife Trust, said: “Not only do the proposals at Hunterston outline an inevitable end to a nationally important area for wildlife, designated as a SSSI, these plans put Scotland’s biodiversity under direct threat. With nationally scarce eelgrass beds and the best intertidal mudflats for feeding winter fowl and waders on the Ayrshire coast being doomed to destruction, rare species including the cuckoo bee, shelduck and greenshank will be displaced from current habitats.
“To sanction the development flouts the Nature Conservation (Scotland) Act 2004 which outlines a clear biodiversity duty which all public authorities are legally obligated to uphold. It also sends out the wrong message in the International Year of Biodiversity, damaging Scotland’s credibility on a global scale. We congratulate Marco on bringing forward this important Judicial Review which if successful will prevent another nail in the coffin for Scottish biodiversity.”
Aedán Smith, Head of Planning and Development with RSPB Scotland, said: “The National Planning Framework actually contains many positive environmental policies but these are in stark contrast to the Hunterston proposals. Not only would this development destroy a nationally important wildlife site for wading birds and waterfowl, but it would also contribute to massive global environmental damage through a major increase in climate-wrecking greenhouse gases. We are supporting Marco because if this development retains its National Development status it will be far more difficult for the application to be refused at a later date.”
Richard Dixon, Director of WWF Scotland, said: “A new coal plant at Hunterston would be the single biggest new source of carbon emissions in Scotland. This is a huge test of all the political parties commitment to reducing emissions. All credit for Marco for challenging the democratic deficit which means this station could be built with no proper public scrutiny of its pros and cons.”
Duncan McLaren, Chief Executive of Friends of the Earth Scotland, said: “Under the Århus Convention all Scots should enjoy the right to participate in decision making, and the right of access to justice where environmental decisions are made poorly, or without regard for environmental law.
“We fully back this action to obtain justice in a case where participation and consultation were clearly inadequate, with serious environmental consequences. The hurdles Marco has had to overcome to pursue this action starkly demonstrate the need for legal reforms to ensure better access to justice in Scotland.”
For more information, please contact Scottish Wildlife Trust's PR and Communications Manager on 0131 312 4742 or firstname.lastname@example.org.
1. The Planning etc (Scotland) Act 2006 is planning legislation that allows government to identify major developments as National Developments in the National Planning Framework (NPF). A series of these National Developments were put forward in the NPF, including the proposals for Hunterston. Once something is included in the NPF, the need for that development is then established without the ability to question need at the planning application stage. This is quite different to a normal development, where its suitability, appropriateness or otherwise can be challenged on a whole range of grounds from the detailed design right through to whether it is actually needed or not. In the case of Hunterston power station, it will therefore not be possible to argue whether there is a need for the development or not, as this has already been established by its inclusion in NPF2, even if other evidence suggests that a new coal plant is not required to meet our energy needs.
2. The broad coalition of groups supporting the Judicial Review and the campaign against the Hunterston proposals believe the need for the development must be open to scrutiny at the application stage. This would enable a full and open debate, for example in a planning inquiry, where it would be possible to examine the developer’s information and thoroughly test all the evidence. If national development status is retained, this scope to scrutinise the need for the development will be removed. In relation to the Hunterston Development appearing as a National Development in NPF2: Hunterston was not included in the first consultation draft, which was submitted, circulated and publicised by the Scottish Government. About six to eight months after this first consultation draft, a supplementary environmental report, associated with the Strategic Environmental Assessment, was published, and this included a further 52 potential NDs. As is required, this proposed NPF2 was then published and presented to Parliament for its statutory 60 days scrutiny, and this included Hunterston. The statutory 60 days scrutiny closed and Government then considered all the information that they had received in relation to the NPF2. In June 2009 they published the final document, which included Hunterston as one of the final 14 NDs. This established the planning need for Hunterston, and left the only way to challenge its inclusion by means of a JR through the courts.
3. Work by the energy consultants Garrad Hassan has shown that Scotland could easily meet its energy needs without the need for new coal or other thermal energy plant. The summary report is available here: http://www.rspb.org.uk/Images/PowerofScotlandRenewed_tcm9-222405.pdf
4. The only means for a third party to challenge most planning decisions in Scotland, including a decision to designate a national development, is through judicial review in the courts. However, this can be prohibitively expensive as not only does a petitioner have to pay their own legal fees, they can be liable for the other sides fees should they loose. Earlier this year Marco McGinty was successful in obtaining an order form the court which has limited his liabilities to pay the Governments legal fees should he loose to £30,000. This is progress but still represents a significant financial risk to Mr McGinty, who is not a wealthy individual. For this reason, and because this case is so important, the coalition of groups has come together to try and underwrite his liabilities. However, some funding is still required. Donations can be made at http://www.justgiving.com/Hunterston
5. Ayrshire Power Ltd submitted their application for the 1852 MW coal and biomass fuelled Hunterston Multi-Fuel Power Station to Scottish Ministers on 2 June 2010. Over 16,000 objection have been received so far. Only 26 objections were received during the consultation before Hunterston was designated as a National Development in the NPF. A decision is expected some time in 2011. Scottish Ministers have stated that they will accept comments on the application right up until they make a decision. Objections or other representations can be made directly to the Scottish Government via email to Hunterston@scotland.gsi.gov.uk or in writing to: Energy Consents and Deployment Unit, Scottish Government, 4th Floor, 5 Atlantic Quay, 150 Broomielaw, Glasgow, G2 8LN
6. In March 2010 a majority of MSPs voted on the motion, as agreed to: “That the Parliament notes the publication of the UK Climate Change Committee Report, Scotland's path to a low carbon economy; believes that the Scottish Government needs to review its Climate Change Delivery Plan to take into account the passing of the Climate Change (Scotland) Act 2009; believes that there are economic opportunities to be gained from investment in low-carbon technologies and that the Scottish Government needs to take a lead through public procurement, particularly in the fields of transport and construction, and specifically calls on the Scottish Government to put in place a programme to replace its own fleet with low-carbon or electric vehicles, to bring forward the planning and development of a national vehicle battery-charging infrastructure and to enable the public and businesses to make the practical changes required to meet the targets set out in the Climate Change (Scotland) Act 2009; urges the European Union and UK Government to take action to support Scotland's ambitious plans and targets; notes that, while preserving the environment must not be seen as being in conflict with economic growth, it is vital that current economic circumstances are recognised and that all public expenditure offers value for money to the taxpayer; also opposes new unabated coal power capacity, and therefore calls on the Scottish Government to reject plans to build a new coal-fired power station at Hunterston, given that large-scale carbon capture and storage at existing coal or gas plants has never been successfully demonstrated.” There were 66 votes in favour, 10 against and 26 abstensions. Ministers were instructed not to vote.