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Moratorium may be illegal

Revealed: Minister’s gas extraction ban could breach human rights

Fergus Ewing TwitterScottish Energy Minister Fergus Ewing could face claims that his moratorium on extracting gas from coal breaches human rights legislation.

Mr Ewing has frozen all planning applications for Underground Coal Gasification (UCG) projects until the outcome of a potentially lengthy independent investigation is known.

Consultation will continue through to spring 2017 but any planned projects will be hit by the ban.

One expert now says that planning authorities and Scottish ministers have an ongoing legal duty to determine planning applications for UCG, a process of extracting gas without the need for fracking.

The European Court on Human Rights guarantees the applicant the right to his application being determined within a “reasonable period of time”. If those rights are breached the applicant may apply to the courts to force a decision to be taken on the application and may be entitled to damages.

Ewan MacleodEwan MacLeod (right), an expert in planning law at Shepherd and Wedderburn, says that a failure by ministers to take a decision on a planning application simply because the independent investigation has not been completed could result in a breach of the applicant’s human rights.

Mr MacLeod, says : “Potential applicants will no doubt agree with Fergus Ewing’s commitment to a “full and careful consideration of the potential impacts” of underground coal gasification.

“However, a properly prepared application will undoubtedly contain all of the information that ministers need to understand the impacts of the project in question and to decide whether planning permission should be granted.

“The ECHR guarantees applicants the right to have their applications determined within a reasonable timescale. I struggle with the concept of a national moratorium on taking individual decisions when all of the key information for the project in question will be available. That would seem to raise clear human rights issues for the applicant which they would be entitled to enforce through the Courts.”

The Scottish Government has appointed Professor Campbell Gemmell, the former chief executive of SEPA to lead an investigation of unspecified scope and duration into “the issues and evidence surrounding UCG”.

In tandem with that announcement, Scottish ministers issued a legal direction to local planning authorities which requires them to advise ministers if they receive applications for UCG development.

Ministers will then have the opportunity to consider whether they, rather than the council in question, should determine the application. A separate direction of similar effect has also been issued to the Scottish Environment Protection Agency in relation to applications for necessary consents under water environment legislation.

The temporary prohibition will be a blow to Cluff Natural Resources which has been working with Haliburton on UCG projects in the Forth of Firth. It was hoped that because the original ban applied to onshore projects anything retreived from under the Forth would be excluded.

Cluff recently produced independent research which suggested thousands of jobs and £12.8 billion could be added to the UK economy by developing a UCG industry.

The study by independent economic consultancy Biggar Economics said it would provide 1,000 jobs in the Firth of Forth area, where the Longannet coal-fired power station is due to close, and 5,000 in total across Scotland.

Graeme Blackett of Biggar Economics, author of the report, said: “Scotland is a hydrocarbon and energy-rich country, and this could be an important new industry on a UK- wide basis, supporting many thousands of sustainable jobs.”

UCG is seen a means of fuelling a new generation of gas-fired power stations and that the gas could be used as a feedstockfor the chemical industry, including the Grangemouth complex.

But the Scottish government wants more research and is consulting widely on the issue. In today’s statement Mr Ewing said: “Ministers have held meetings with representatives of environmental non-governmental organisations, community groups, industry bodies and local government.

A Scottish Government spokesman said: “No planning applications for underground coal gasification have been submitted – but there is nothing preventing such an application being made, and if so it must be notified to Ministers and determined in accordance with established planning procedures.

“When determining an application, Ministers will not hesitate to use the planning powers available to them to ensure that the moratorium is enforced.”

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