GOOD NEIGHBOUR AGREEMENTS – THE LAST CHANCE SALOON FOR COMMUNITY ENGAGEMENT
What are Good Neighbour Agreements?
The Scottish Government has tried to enshrine a range of mechanisms in the Scottish Planning System designed to facilitate both enhanced participation and public confidence in the system through greater transparency. As many wind farm developers are aware, public participation and community liaison in the development process can only be beneficial.
There is provision in the Planning etc. (Scotland) Act 2006 (2006 Act), which is not yet in force, that introduces the concept of Good Neighbour Agreements (GNAs). This will allow any developers, operators or landowners to enter into legal agreements with representative community bodies. GNAs may require certain specified activities to be carried out on the land in question, or require the land to be used in a specified manner. Importantly, there is the ability to bind successors in title and, where relevant, tenants, by recording or registering the GNA if the landowner is party to it. GNAs will be of particular interest to renewable operators as they will essentially extend planning control from land use into more detailed land management whilst an energy development is in operation.
As will be the case with ordinary planning obligations (planning agreements), GNAs may be modified or discharged by agreement or by application to the planning authority. An appeal to the Scottish Ministers will exist against the planning authority's determination as well as in relation to a failure by the authority to determine an application timeously.
So after participating in the development plan process, engaging in pre-application consultation, possibly lodging an objection to the planning application, and making representations at a hearing or inquiry, community bodies will have a last chance to engage in the planning process – if they have the time, resource or energy left.
Are GNAs a novel concept?
While the GNA concept is novel to the Scottish planning system, it is not untested. GNAs have proved to be a success in the USA and have been drawn up by major companies in co-operation with local residents and promoted by community groups, as part of a campaign to achieve greater environmental justice. However, GNAs in USA mainly relate to potentially polluting industrial development and not to every conceivable type of development.
What about the detail of a GNA?
Without a doubt there is support for the idea of a regime being put together whereby everybody collaborates and there are commitments to adhere to certain codes of behaviour. However, from the outset of the Planning White Paper, local authorities and the development industry have stimulated lively debate raising concerns as to how GNAs would operate in practice. The main concern is that the idea has been accepted without drilling down into the detail and considering the practicalities, as the GNA concept appears to have progressed into the 2006 Act without the same significant consultation as other matters. It was hoped that regulations and accompanying guidance, to supplement the 2006 Act, would shed some light.
Five years since the GNA concept was initially suggested, draft regulations have finally been published for public consultation by the Scottish Government. Unfortunately, the draft regulations deal with the mechanics associated with an application for discharge or modification of a GNA, rather than considering their practical use any further, which everyone had hoped for. In addition, there is no accompanying Circular offering practical guidance for stakeholders.
What role will the GNA have in the planning system?
It is still difficult for those engaging in the development process to identify or foresee the added value or additional control that a GNA could provide, especially when there are other long established planning mechanisms available. Planning conditions in relation to the operation of development sites and their relative enforcement already exists; and Community Trust Funds and Liaison Groups are not a new concept, being well established in rural communities, especially for renewable developments.
GNAs surely cannot provide for obligations which conflict with a planning permission granted or which duplicate planning conditions. They certainly should not be used to replicate the work of planning officers who are there to enforce unlawful development in the general public interest. It is still therefore difficult to envisage precisely what the scope of a GNA will be.
It is also still unclear how a GNA will fit into the development management process, especially whether such an agreement could be required by way of a planning condition. A positive condition which requires the agreement of a third party would clearly not be enforceable and although a suspensive condition might conceivably be used, it may well be arguable whether such a condition is reasonable. Suspensive conditions that prevent commencement of development until GNAs have been put in place would also be a pretty powerful tool in the hands of communities, especially if they fail to engage.
There also remain questions about the extent to which community councils or community trusts are genuinely representative, or indeed whether any community body can be identified as representing the “community”. The community might not be very large yet contain a lot of competing views, therefore completing the negotiation of a GNA may prove difficult.
The Last Chance Saloon for Community Engagement?
Ultimately, the very name “good neighbour agreement” is likely to prove to be a contradiction in terms, should “neighbours” wish to enforce their respective rights against each other. However, there is still no suggestion of who is to monitor and enforce compliance, which will be a concern for resource-strapped local authorities. The Courts will also not want to be burdened with having to resolve petty and unnecessary disputes.
Environmentally sensitive developments such as a mineral extraction or a wind farm can often face wide-spread opposition from local communities who are far from fragile and can often be vociferous in raising their concerns. A case in point is the strong local community opposition to Donald Trump’s development in Aberdeenshire, where the “Tripping Up Trump” group have co-ordinated the purchase of a small area of land which is key to the development in order to delay it or even kill it off. Communities may genuinely believe that GNAs could work or may indeed consider that they will give them one last chance to influence a development. A mandatory GNA will inevitably create a delay mechanism in the planning system regardless of the planning merits of the proposals. We must question whether the Trump planning permission would have been granted had a GNA been required. It is clear that the responsibility for balancing competing interests must remain with the planning authority and the terms of any GNA will have to be carefully negotiated and studied.
The Scottish Government’s consultation on Planning Obligations and Good Neighbour Agreements Regulations 2010 ends on 30 July 2010 and is available on the Scottish Government’s Website at www.scotland.gov.uk/Publications/2010/04/26150418/4. Interestingly, the Scottish Government points out that it does not seek views on policy with regard to the use of GNAs, or the provisions in the 2006 Act, and focus should be on matters contained in the draft regulations. It is highly likely that responses from local authorities and those engaging in development will continue to be centred around what is not contained in the draft regulations and 2006 Act, despite the Scottish Government’s attempts to discourage it.
For further information please contact: Sarah Baillie