When the government release material under freedom of information they usually provide it in a fairly user-friendly manner. The controversial Aviemore development (which will bubble along for a while with the potential for some damage to the government) saw a release of all of the relevant papers in one document. Straightforward to print off and read it allowed Douglas Fraser at the Herald to forensically examine it (much to the annoyance of his usual voluble critics) and Fraser has raised a number of important perceptive points still not addressed by the government. unfortunately the Herald decided that Fraser’s queries did not warrant text in the paper itself and only allowed publication on his blog. Fraser’s issues, coupled with the matters raised by the local government committee inquiry into the Trump application at Menie reveal that the first minister is perhaps not au fait with the quasi-judicial requirements imposed on ministers in the planning process, and indicates a view of planning driven purely by profit, and not taking into account the other multifarious socio-economic and environmental factors that planners and those involved in planning decisions must address.
Anyway, yesterday the government released more information about the trumpton development. The link was broken for much of the day although the government story was clear on the main page of the release
“The information released shows that Ministers in this government are fully aware of their responsibilities in relation to planning and have discharged these responsibilities fairly and responsibly having regard to the Ministerial Code. The documents also show that Alex Salmond was not party to the decision to call in the application, and that documentation relating to the call-in decision specifically excludes the First Minister. The documents also show that civil servants involved in the handling of the case have fully met the standards of propriety expected of them as per the Civil Service Code.”
Why spin the release? And is the spin relevant to the central questions about the development: could the decision be called in? should the decision have been called in? and as a result of the actions of ministers has any decision been rendered potentially challengeable due to the manner of the call in? The latter issue – the one that won’t arise in the courts until after the reporter finishes his public local inquiry, until after Mr Swinney makes his decision following the PLI – will not be clearly addressed until much later this year, possibly next year – and serve to demonstrate that the precipitate actions of ministers actually scuppered the development they so clearly support.
Anyway, the release – when finally operational – contained 259 documents. Many of these documents are one page or two pages long. Is someone having a laugh? Are they wilfully attempting to hide material in there?
What are we to make of the various e-mails by the Trump team in early December sent to “first Minister Salmond” enclosing press correspondence, excerpts from Aberdeenshire web fora, and the like. Appropriate behaviour given the final decision rests with ministers in a quasi-judicial process? Were Aberdeenshire council members sent similar delights? When the case ends up in court (as it almost certainly will with an appeal from the decision either way) will the team sent such correspondence to the relevant judges? Is this for information? Or is it pressure – what some involved in the process described as bullying? And what are we to make of the e-mail from Kelly Stengele sent on the 3rd December at 9.27 pm to Mr Salmond sending articles Mr Trump wanted Salmond to read indicating Northern ireland was set to welcome the development? Or another e-mail on the same topic? And then the first minister’s office forwards these to the chief planner who investigates to discover no application in Northern Ireland.
But putting that to one side for the minute what about the background material. At the time of the call in I expressed surprise. There were two options: call in if the application was granted because the matter would have to be notified to ministers given that it was contrary to the structure plan and impacted on a site of special scientific interest, or there could be an appeal if the application was rejected. Well, apparently ministers were briefed along that line too while the matter lay with the council. The mysterious third way – the call in after rejection was never mentioned. Was it because it was not competent? Was legal advice ever taken on this possibility? And if it was how did they deal with there being no Scottish authority in the area? And such English cases as involved call in long after a decision related not to rejections by the council but for grants where the council delayed in the issue of decision letters for protracted period – are they really the authorities they’ve relied on here? Or is there is bit of post-rationalisation going on?
And what are the real reasons for the call in? Publicly we’ve been told that the call in is because a matter of national significance was raised. The local government committee revealed that the decision to call in was taken after 2 5 minute phone calls between the chief planner and John Swinney. And according to the chief planner it was to maintain the integrity of the planning system as the council as a whole indicated general assent and the chief planner was worried about the implications where one party on appeal (the council) would not stand by its decision. That others were interested and Scottish natural Heritage (who objected to the application and have responsibility for the protection of sites of special scientific interest) would have run with the case was neither here nor there apparently. Anyway, what were the real reasons for call in? Well now we know. Hidden away among the 259 papers released yesterday is the briefing note on call in .
Planning call ins need to be for planning reasons and a general circular of advice gives illustrative examples of situations where call in is justified. After noting that the government had expected the application to be granted (presumably explaining why there had been no call in during the process after the application when all factors suggested that planning reporters and ministerial involvement would be required).
The reasons are given here,
“This planning application represents a significant investment in Scotland and in the North East economy. As such, it clearly raises issues of national importance that would require some consideration by Scottish Ministers. We had previously expected that Aberdeenshire Council would have resolved to grant consent, which would have triggered notification to Ministers to consider cail-in. The- Council’s decision to refuse consent has removed that usual procedural opportunity for Ministers to consider the matter. Calling the application in would allow Ministers the opportunity to give ful! scrutiny to ail aspects of this proposal before reaching a final decision.
“It is an unusual step to call in an application at this iate stage in the process, prior to it being refused by the planning authority — particularly when the applicant has a right of appeal to Ministers anyway. But given the circumstances in this case, which could lead to the applicant not lodging .an appeal, and so removing any possibility of scrutiny of such a major proposal at a national level, it would be appropriate on this occasion to call in the application without further delay.”
I’d suggested earlier that the threat made by the Trump team not to appeal involved the ministers in a game of chicken. Well, this threat is clearly the reason for the call in.
Is that an appropriate matter for call in? Rejection triggers appeal. If the applicant does not want appeal, should ministers step in to save the decision – in response to a threat (a threat made while the Trump team is sending e-mail about Northern Ireland, see above, the prospect of development in Northern Ireland being referred to in the briefing note recommending call in at para 3).
And where does this odd idea that call in is quicker than an appeal come from? The Trump team before the local government committee indicated that their experts had advised them that this was the case. I have suggested such advice is unlikely. With so many objectors, with such a substantial development, and with so many matters not approved by the Structure Plan as well as the impact on a site of special scientific interest, there was never going to be anything other than a public local inquiry which could take months. And then the reporter has to evaluate the evidence, the documents, and make a decision. HOw long would this take? Well apparently the first minister is briefed on 6th December 2007 that call in will lead to a decision by summer 2008 (see p 7 column 2 of this paper). But this is released in response to an e-mail from the private secretary of Mike Russell, the environment minister, who states he is receiving a lot of correspondence as a constituent MSP. SO presumably Russell sits for somewhere in Aberdeenshire? Well, no Russell is a list MSP for the South of Scotland? So what constituency interest is impacting on him? Is this the throw away line in the call in that Dumfries and Galloway sought the development?
Would anyone scouring the documents expect to find the proposed timescale in a document entitled in the list of documents “E-mail exchange between Michael Russell’s Private Office and David Ferguson about lines to take” (document 160).
As suggested above while the local government committee has spoken this is not over yet. The behaviour (and the material revealed in these releases) means that an appeal or judicial review is almost inevitable. And given that the objectors to the development include the RSPB and Scottish Natural Heritage, any decision to grant will almost certainly be carefully reviewed. Expect this to come back and bite in the middle of next year.