Can Ministers trump Councillors on the golf course plans

Last week Aberdeenshire Council (or rather a sub-committee thereof to whom powers had been delegated) rejected an application by Donald Trump to build a golf course, hotel complex, and other delights.  Part of the reason was that the proposed site would be on a site of special scientific interest (as prescribed some time ago).  Councillors were concerned about the effect on the local environment.  One would have thought that given the environmental concerns and the close relationship between the SNP and the Greens (see previous posts) the matter would rest there as far as ministers were concerned.   But, no.  Yesterday, Scottish ministers said they were going to call in the application.

The government press release regarding that decision is here.  It reads,

“The planning application by Trump International Golf Links Scotland for a golf resort in Balmedie, Aberdeenshire, has been called in by Scottish Ministers for their own determination.
Ministers say they recognise that the application raises issues of importance that require consideration at a national level.
Calling the application in allows Ministers the opportunity to give full scrutiny to all aspects of this proposal before reaching a final decision.”

Unfortunately, a decision has already been reached by the Aberdeenshire council sub-committee.  And this seems counter to principles of local democracy and the legal position.

The planning system is biased in favour of developers.  There is a presumption in favour of specific developments (provided they are in accordance with the local plan).  There is a right of appeal to the developer if a proposal is rejected, or the developer can resubmit an application in an amended form, but if the decision is granted there is no right of appeal to objectors.  Given the decision of the sub-committee (and the apparent position that they had recommended resubmission to have the development on a site not including the SSSI) the normal course would be for the developer to appeal matters – and a public inquiry can be held to hear the case.  This is the normal course of business, but in a game of chicken Donald Trump’s business indicated that (unusually) it would not appeal.  What then for those (like Wee Eck, the First Minister) reportedly furious at the sub-committee decision?

Well as the process is in the hands of the developer it can be suggested that the ministers can’t do anything about it.  While ministers can intervene before a decision is made, they cannot intervene after.  There is a real risk of legal challenge and judicial review.

Further, for a government notionally promoting local democracy and green issues, a decision to circumvent a decision of a democratically elected group of local councillors runs counter to policy (but then again so does removing the power of local authorities to set their local rate of taxation); and on green issues this is another instance where environmental concerns are overridden.

In this game of chicken the ministers have blinked first.  Their action may actually scupper the chances of the development they appear keen to promote –  but, sometimes the law has a nasty habit of rearing up and kicking you in the teeth.

Edited  6th December 2007.

About loveandgarbage

I watch the telly and read when not doing law stuff and plugging my decade and a half old unwatched Edinburgh fringe show.
This entry was posted in development, donald trump, golf, scottish politics, Uncategorized. Bookmark the permalink.

5 Responses to Can Ministers trump Councillors on the golf course plans

  1. Its not my place to argue with those who know more about subjects than I, but I wondered about a couple of points that you made.
    1) is it not that there is a presumption in favour of *the* development, as opposed to development generally? What I mean is that is the presumption not in favour of developments which are in line with either the NPF, Local Plan etc? If it were the case that Trumps development was *not* in broad line with the structure or local plan then there would not be a presumption in favour of it. Although I do agree with you about development favouring developers, it does seem that with last years reforms, there is far more opportunity for objectors to get involved. While they may not have rights of appeal like developers do, they have a good chance to lodge objections, comments, discussions etc before decisions are taken (sort of like a front-end-first approach, to iron out the kinks beforehand)
    2)Is it likely that a body will object to this? I’ve not been keeping massively up to date with the case, and whose in favour/not in favour of the development etc, but it said on the news that some locals were unhappy with the rejection as it mean no new jobs. Given that judicial review is so expensive, might there be *no* challenge to the “calling in” – although I’m not sure about you, but the prospect of any such challenge excites me somewhat (in a legal way).
    p.s. – sorry about the *stars*, but I couldn’t find the underline or italicise

    • In relation to point 1, agreed. My wording is a little loose there. The point I’m making is that the developer is favoured throughout the process – and if in accordance with the local plan then they really can’t lose. However, even when not in accordance with the local plan – they can argue to override planning policies, and then have various rights of appeal. It may not be quick enough for developers, but the system is weighted in their favour. In relation to objections though that doesn’t detract from the right to appeal (which third parties do not have).
      On 2. Yes, I think someone will judicially review the decision. The site was one of the earliest SSSIs in Scotland. The planning committee gave Trump an opportunity to amend his proposal so it didn’t include the SSSI. He had a right of appeal.
      Further this undermines the environmental credentials of the SNP. How will the Greens view their informal relationship with them now?

      • Agreed. The point is worrying. Was discussing this earlier with a friend, and we were saying how morally (if not legally) it seems wrong for them just to say “we’re not appealing” in order to force the govt’s hand and get their own way.
        I’m usually pro-development (if its in right place at right time etc) but in this case I’m not sure. Given that trump’s had the chance to change his plans to allow for the SSSI, and not bothered his backside (or should that be fanny?), and also that he apparently has a site lined up in N. Ireland as a fallback if aberdeen doesnt work out, I’d be telling him to “feck off” (that was my father ted – ireland link).

  2. p.s. I completely agree with your major premise – this was a game of poker, and the Scottish Govt definitely left their pokerface at home (or did the trumps just play their “ace” card? cliche etc…)

  3. Anonymous says:

    While I got a little lost with your sections and subsections (sorry blame my not very legal mind) I think you clarified that admirably. As I said on Dave Hill’s blog I’m always with David against Goliath, so I hope you are right and the Scottish Parliament has shot itself in the foot. The aspect of this I have enjoyed the most is seeing that farmer refusing to sell. (As one who’s back garden is subject to landgrabbing letters from property developers I sympathise wholeheartedly!).
    I loved the chicken analogy too!

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