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22 July, 2009
Sustainable Shetland’s vice chairman Kevin Learmonth responds to
questions raised in a letter to Shetland News earlier this month (Answers
please; 8/7/09)
Q1. Is the planning consent application the only opportunity for
us to have our say?
If so, does this mean that we have to decide for or against the wind
farm by 28 July, the deadline for support/objection to the planning
application?
Your only current existing route through the planning system is to
make a formal objection/acceptance by Tuesday 28 July.
If the planning application goes to public inquiry, as we think it
should, only participants who have already submitted an opinion to
the planning authority will be given a hearing.
Separate planning applications for the interconnector cable (to
Energy Consents Unit) and for the interconnector station itself
(possibly to SIC) are also on the way. No wind farm = no
interconnector. No interconnector = no Viking Energy wind farm.
The SIC is only a statutory consultee. Last Wednesday’s decision by
SIC councillors to participate in the planning process is to be
applauded. The recommendation from the council’s own head of legal
services that they should take no part in the planning process as
elected councillors, was a view supported by at least one Viking
Energy director. Fortunately on this occasion 15 other councillors
disagreed.
However it should be noted that the notion to proceed with hearings
or meetings, at some future date, would be for the purposes of
giving the council some indication of what people thought. I would
be surprised (but pleased) if such meetings attracted as many people
as the Sustainable Shetland petition did, 3474 people in total.
So in addition to formally registering your support or objection,
telling your local councillors your views should be considered –
letters may be more effective and permanent than verbal
communication, as is the councillor’s reply.
As a campaign we have to use every legal and political means at our
disposal to make sure this wind farm, as proposed for this site,
never happens. We believe it exposes the Shetland environment and
community funds to unacceptable hazard and risk, but other
individuals may well have their own reasons for objecting. Those
supporting the application will also have their own reasons for
supporting it, but I will leave it to Viking Energy or their PR
company to explain their actions when they reply to your questions
themselves.
Q2. Can the wind farm be stopped after 28 July?
Of course, but at the moment the key battle is to get in as many,
and as good quality objections as possible by 28 July. Each key
planning, political and financial milestone in the project must be
challenged as strongly as possible, and at the moment the main focus
has to be on this live planning application. Objections can come
from anyone, living anywhere. A Shetland connection adds
psychological weight to an objection, but on a legal basis,
residency or direct connection is not of major relevance.
Q3. If we are granted a referendum that is held after 28 July,
and if the majority are against this proposal, will it have any
effect?
It adds political weight to the case for opposing the wind farm
development, but from a planning point of view it is not binding in
any way.
That said, since the planning process is a mixture between policy,
politics, science and democracy, a referendum may have an impact in
terms of input to that process. The entanglement of Shetland Islands
Council and Shetland Charitable Trust (22 trustees out of 24 are SIC
councillors), and with the charitable trust owning 90 per cent of
Viking Energy, and Viking Energy Limited being 50 per cent partners
in Viking Energy Partnership, adds a whole new range of
possibilities in terms of the impact of such a referendum.
For example, if a majority of people in Shetland do not want the
wind farm to proceed as proposed in the planning application, then
if democracy and accountability count for anything, the
SIC/charitable trust should follow the will of the people. As
partners in the project, represented by elected councillors, they
could halt or delay the project indefinitely by a number of means:
• as statutory consultee - recommend planning refusal;
• as Viking Energy Limited - withdraw support for their own
application;
• as Shetland Charitable Trust - lodge a formal objection to the
planning application;
• as 50 per cent partners in partnership, withdraw from further
meeting and discussion;
• charitable trust/SIC, fail to capitalise their commitment;
• withdraw existing capital from Viking Energy Limited and render
company insolvent;
• wind up Viking Energy Limited by majority decision;
• don't withdraw from partnership - just don't participate;
• don't wind up Viking Energy Limited - just withdraw all staff;
• don't sell Viking Energy Ltd, just leave it in permanent limbo;
• appoint directors who are responsible to the will of the community
on the specific issue of the wind farm;
• as SIC - withdraw permission to build on any SIC controlled land
The elephant in the room of course is the councillor/trustee
conflict of interest. No matter how hard some pretend it isn't
there, it just won’t go away, and it keeps rearing its head at
awkward moments. Ironically the very source of the conflict, the
mechanism which funds and controls Viking Energy - SIC, Shetland
Charitable Trust and councillors - could also be its undoing.
The council’s head of legal services stated repeatedly at last
week’s council meeting that "there exists a conflict of interest"
relating to the Viking Energy wind farm and Shetland Charitable
Trust. Basically councillors can not legally continue to act as
councillors and as trustees. Something has to give.
His solution was for the democratic input from councillors to the
planning process to go by the wayside. I personally disagree with
this and think that councillors’ first duty must be to act as
publicly elected local authority councillors. If other positions
held come into conflict with this, they must choose if they want to
remain either a councillor or a trustee. Doing both is not a legally
tenable or sustainable option. The whole report can be read at
http://www.shetland.gov.uk/coins/ViewSelectedDocument.asp?DocumentID=16214
Getting the Scottish government to refer the planning application to
a public inquiry would be a key part of the planning process. An
objection from a statutory consultee will almost certainly result in
a public inquiry. Viking Energy is very keen to avoid a public
inquiry. It takes time. It costs money. It would ask too many
awkward questions. Above all, it gives members of the public and
other organisations an opportunity to present their case against the
planning application.
Q4. How can we comment on issues outwith the scope of the
planning application, such as finance? I.e. do we have a say on how
community funds are spent?
Brilliant question Karen! The fundamental question of how the
Shetland Charitable Trust is supposed to be accountable to the
public is one of the great mysteries of Shetland. We elect
councillors to make decisions and develop policies on local
authority services. Most people are unaware that these candidates
automatically become trustees if elected to the council. Even some
candidates had no idea that councillors automatically became
trustees. Many elected councillors make no mention at all of their
policy or views on Shetland Charitable Trust in their election
leaflets.
I think the simple answer is that the community have no say on how
their community funds are spent. We have second hand and slightly
tainted democracy (conflict of interests abound) via councillors on
the charitable trust. We have third hand democracy as the charitable
trust appointed the three directors to Viking Energy Limited.
I don't think (but if someone knows different please speak up!) an
objection along the lines of "it won't make money" is classed as a
valid planning objection. The financial case for the wind farm
planning application hinges on the notion of community benefit. An
objection to challenge the fundamental nature of this community
benefit may be valid. The problem with the general planning process
and especially with very large projects such as Viking Energy is
that the process favours the developer. For example it was up to the
developer, not the planning authority, to agree to a 30 day
extension to the objection period!
Another bizarre aspect of the way the planning application has been
made is that the interconnector cable is part of a separate planning
application. An objection to the cable based around the flaws in the
wind farm application would be considered to be irrelevant.
Similarly, an objection to the wind farm based on the negative
impact of the interconnector cable or converter station would again
be considered invalid.
It's a bit like putting in a planning application to build a new
house far from an existing road network, and a separate application
under different legislation to get a road to that house, but
claiming that they are entirely separate and unconnected
applications.
Q5. What will happen if planning consent is granted, but the
community comes out (in a majority) against the proposal after 28
July?
The community could apply considerable political and legal pressure
to the SIC/Shetland Charitable Trust to represent the will of the
community. Full democracy is where as many people participate and
contribute to the democratic process as possible. Our contribution
to the democratic process is to ask questions and hold public
servants to account. Elections every five years are the start of a
democratic process, not its end point.
The options outlined in my answers to Q3 may be a possible direction
for Shetland to proceed with regards carrying out the will of the
community.
The decision will be made by Scottish ministers (including current
energy minister Jim Mather) based on:
• what fallout would there be politically if it did/didn't go
ahead?;
• what does the Energy Consents Unit say (the clue is in the name)?;
• what do statutory consultees say?
• how does the Environmental Statement weigh up?
• at the very end of a long list, if at all, will be "What does
Shetland want" followed by the question,
"So what?"
The reality is that we have never returned an SNP MP or MSP, and so
far the SNP are well off the running to win Shetland as a seat. We
are only 22,000 people, and a long way from Scotland. Shetland is a
bit of a mystery to the rest of the Scottish population. South, the
view might be that if we want to be reckless with our own money and
ruin our own environment, hell mend us.
So the final decision will not be made in Shetland, and may not be
made for the benefit of Shetland. Our job is to make sure the best
interests of the whole Shetland community are prominent amongst the
factors that lead to a decision.
Q6. What will happen if planning consent is granted but Shetland
cannot afford its share of the investment due to increasing costs?
Is this likely?
In the words of the charitable trust and Viking Energy chairman:
"This is almost certainly the only stage of this project at which
the trust can afford to take a substantial stake.”
On the other hand I think Viking Energy director Allan Wishart wants
to plough on and find a way of affording it. The impression I have
is that Bill Manson may prefer the cheaper and safer exit strategy
of selling to the highest bidder at the first opportunity. Allan
Wishart thinks it is worth plunging us into debt/convoluted funding
mechanisms or similar pre-banking collapse business models.
The other director, Alastair Cooper is playing his cards close to
his chest and saying very little in public, but is sufficiently
worried about the conflict of interest that he leaves the room
during key charitable trust and SIC meetings relating to Viking
Energy finance.
Q7. If planning consent is granted can Scottish and Southern
Energy build the wind farm even if Shetland decides no or is not a
financial partner?
There is actually no requirement the community has to be involved in
any way whatsoever if consent is granted. The day after planning
consent is granted the charitable trust could sell some or its
entire stake in the project to anyone willing to buy.
Can it do it when the partner, Viking Energy Limited has listened to
public opinion and stonewalled the entire process? We don't know.
The answer to that and a number of other thorny questions will be
contained in the Partnership Agreement signed in the name of the
people of Shetland. Unfortunately Viking Energy, Shetland Charitable
Trust and Shetland Islands Council have refused to make this
available. So although it was signed in our name, we do not get to
know what we have agreed to.
The key thing with planning permission is that it is granted to a
proposal, in this case Viking Energy wind farm. Anyone can own or
carry out that proposal.
I hope this has answered your questions. If not contact me and I
will reply directly to you. As a voluntary organisation we have a
lot on our plate just now, but do try to reply to specific questions
asked.
As a campaign our message is clear, the project is too risky for
Shetland and too dangerous for the environment, and we urge people
to object to the Viking Energy Wind Farm project by Tuesday 28 July.
http://www.sustainableshetland.org/planning/index.htm
Kevin Learmonth
Vice Chair, Sustainable Shetland
www.sustainableshetland.org
kevin@sustainableshetland.org |
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