Notes from the SPEL Conference 2014

As I have matured in years, I have come to terms with not being many things. For example, I am not an astronaut. In less cosmological news, I am not a planning or environmental lawyer. It would be a misrepresentation to hold myself out as an expert in these fields, although I do have some involvement with these areas and my dabbling means I like to try to keep informed. My most recent attempt to do this was to attend the SPEL Conference 2014. “SPEL” stands for Scottish Planning and Environmental Law, so this seemed an ideal conference to obtain my dabbling fix. What follows are some eclectic notes from the day (programme here (PDF)). No apology is made for the rambling nature of my thoughts: hey, it is my blog, after all. I could have kept this stuff to myself, but I might prompt some discussion or you might find something useful herein.

The first speaker was Professor Greg Lloyd of the University of Ulster, who has probably retired in the time between the conference (on 24 September) and me writing it up. (He certainly had an air of impunity when he spoke, noting that he would be an emeritus professor very soon.) The Welshman, who works (or worked) in Northern Ireland, speaking (and, I understand, living) in Scotland brought some very interesting perspectives about devolution to bear. He noted the need for people to plan on the basis that growth might not happen (referring to the work of Sarah Longlands at the University of Glasgow) and the need to manage expectations: for example, he noted the difficulties in trying to get back to normality in times of austerity if the “normality” that is sought is a property led boom. In the Q&A, rather surprisingly (and a little heretically?) he spoke about the nationalisation of land as a possible solution to problems connected with speculation. This was not just the ramblings of a zealot, Lloyd was able to refer to the works of William Ogilvie (formerly of King’s College, Aberdeen) and his (at one point) anonymous tract about land reform. Other names were mentioned, but my scrawled notes from the day defeat even my attempts to decipher them.

Next, John McNairney from the Scottish Government spoke about the National Planning Framework 3 and Scottish Planning Policy (NPF3 and SPP) – noting it was the first time versions of these documents had been brought forward simultaneously. Regarding the former, key drivers were noted (sustainable economic growth, low carbon economy and the like), as was the importance of community for successful, sustainable places, and flagship National Developments were highlighted. As for the SPP, its new presumption in favour of development that contributes to sustainable development was highlighted, although it was queried how relevant this might be given Development Plans must keep sustainable development in mind at the moment. Also highlighted was the new spatial frameworks as to where onshore wind farms 1) will not be, 2) may not be or 3) are likely to be acceptable (the former being “Group 1” zones, containing National Parks and National Scenic Areas). A later presentation from a local authority employee noted Group 1 designation was all well and good for some, but not if your local authority contained no such zones. The cumulative effective of windfarm development in such an area was also considered, but not exactly resolved.

Bob Reid – a fellow adviser to the LRRG – then gave a provocative talk entitled “Scotland’s Continuing Housing Need”. Reid had another perspective by virtue of his involvement in the RICS Scotland Housing Commission. I will not even try to reproduce some of his detailed charts in prose form, but suffice it to say public sector housing has tailed off just a little bit since the days of Margaret Thatcher. In 2013 Audit Scotland stated that 76% of housing was private, compared to 24% public, whereas at another time in Reid’s career it was 33% private and 67% public (I am sure he will appreciate me noting that he is not particularly ancient). Those figures, and indeed the large private rental sector (11.6% at present), are not necessarily indicative of failures in and of themselves, but they do make for interesting reading when checked against house price and indeed income trends (analysis of such trends being beyond my skill-set). The fact that much of the private housing sector has been financed by bank lending, which lenders may not necessarily have a philanthropic interest in the state of the housing stock, is also an interesting variable. Returning to planning concerns, Reid noted (correctly) that planning works in the margins as a driver for reform: whilst planning might inhibit undesirable development, it cannot always drive things on. Despite that, the compulsory purchase order (CPO) and funding side of things were highlighted, together with the observation that key developments in Europe tend to get things right by ensuring the land comes into public ownership before development. Reid contrasted this with Lloyd’s nationalisation point from earlier in the day, instead suggesting it was more akin to “manhandling”. Finally, from a land lawyer’s perspective, Reid’s call for more up-to-date and transparent information about landownership was noteworthy, and chimes with current thinking at the Scottish Government and Registers of Scotland.

Further presentations followed on, being: an overview of Development Plan Examinations and Planning Obligation Appeals by the Chief Reporter of the Directorate for Planning and Environment Appeals; an analysis of Tesco v Dundee City Council (to do with the interpretation of a policy and its implications for an Asda off the A90 in Dundee); a further analysis of the SPP’s implications for the renewables industry; and an introduction to the work of RTPI Scotland in 2014. If these are of interest to you, I apologise, as I plan to offer no further analysis of these matters here.

One other presentation (by Alasdair Burnet, an advocate with Terra Firma chambers) is also worth highlighting, as it was a case law update considering matters as diverse as: mora, taciturnity and acquiescence (which was relevant in the Portobello Park Action Group Association v The City of Edinburgh Council case, which I wrote about in the 2013 Edinburgh Law Review (£)); protective expenses orders (under the Aarhus Convention, the most relevant cases being McGinty v Scottish Ministers, a recent leg of this saga being available here, and Carroll v Scottish Borders Council); and regarding the habitats and birds regimes (on the latter, see Sustainable Shetland v Scottish Ministers), not to mention the rules for third party intervention in a case. If you want more information on such matters, I am sure the good folk at Terra Firma will not mind me pointing you in their direction. (Robert Sutherland and James Findlay can tell you all about the Tesco v Dundee case.)

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About basedrones

Bachelor of Laws. Scots lawyer working at the University of Aberdeen. English law qualified. Took far too long to write this bio. Blogs on legal issues, with occasional veering into other purportedly intellectual stuff from time to time. Tweets about legal issues, education, law clinics, fitba, music, rogue cell division and not at all about politics at @MalcolmCombe.
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