Has new SNP minister just accidentally introduced 'community consent' into Scots planning law? – John McLellan
Major developments – from data centres to windfarms – could end up mired in legal challenges over the principle of community consent
It was only half a sentence in a hasty agreement on the hoof in the Scottish Parliament, but the implications for the economy and infrastructure investment could be enormous. This week the Confederation of British Industry (CBI) in Scotland called for a revamp of the planning system to boost economic growth, reporting that business investment was being postponed or cancelled because of bottlenecks. But instead of streamlining, planning could become an even deeper quagmire for major projects.
No prizes for guessing the issue is hyperscale data centres (full disclosure: I’ve been advising two project teams) and from nowhere a year ago, the opposition is at fever pitch on either side of the Atlantic, particularly in Scotland, which developers see as an ideal location because of the cool climate and so much renewable energy that power companies are paid millions to stop generating.
So-called “restraint” payments cost the UK £1.9 billion in 2025-26, according to the National Audit Office, and could rise to £7.8 billion by 2030, all going onto household bills. In theory the burden on the general population should reduce if data centres soak up the unused energy, but anti-data centre campaigners insist the amount of power needed will result in outages, and are now trying to rubbish the performance of closed-loop cooling systems which do not need the vast daily amounts of water used by earlier plants.
An enormous can of worms
Mindful of growing concern, the SNP responded to a Greens motion in Holyrood which demanded an immediate moratorium on all data centre applications by conceding that no applications can be approved before planning guidance is issued, which the minister for public finance, new Shetland MSP Hannah Mary Goodlad, promised would be out by the end of the year. As nothing was scheduled for a decision before Christmas, there would be no delays, she said.
That’s not quite true, because developers now finalising applications are likely to pause until they know exactly what the guidelines say. However short, and whatever the SNP wants to call it, it’s still effectively a moratorium and campaigners are cock-a-hoop.
But the sting came when Ms Goodlad also accepted a Labour amendment in its entirety, which contained a vague condition that decisions on data centre planning applications “must be based on community consent”. That goes much further than a requirement for community benefit schemes, to which most, if not all, applicants are willingly committed, because if implemented it effectively gives communities a veto if they withhold their approval.
It is an enormous can of worms. How is a community defined? Is it a geographical area? If so, how big should it be? How will that consent be measured? Will there need to be a local referendum? If so, what is the franchise? Do second home-owners count? Will it just need the approval of a community council? But what if community councillors are direct beneficiaries of land use?
More work for lawyers
It creates the perfect opportunity for legal challenges from the losing side, one way or another. If the application is refused for failing a community consent test, it would not be difficult for an applicant to argue that the measurement was flawed because, for example, not enough people participated in a survey or poll, and that the boundary was incorrectly drawn. A successful application could be challenged on exactly the same grounds. The Court of Session could find itself busier than normal.
And if flaws in the process were found, it would be back to square one, and the overall impact is that investors are already wondering whether Scotland, despite its power and climate advantages, is just too big a risk.
Maybe Ms Goodlad wasn’t aware of the grenade that Labour had just lobbed her way. Although she has a professional background in the energy industry, her experience of planning matters is limited, having never served as a councillor, and she has only been an MSP for five months.
But the record shows she has potentially introduced the principle of community consent into Scottish planning law and, having done so, it will be difficult to retract because opposition politicians would howl that the SNP doesn’t believe in giving local people a say in projects affecting their neighbourhoods. With council elections next year, that could be catastrophic for SNP candidates in areas with data centre applications, so it’s likely to stick.
Not just data centres
However, having accepted the community consent principle for data centres, why should it not apply to wind farms or power lines, or any other major infrastructure project? Wind farms are bitterly opposed across the country and the SNP, Climate Change Secretary Gillian Martin in particular, have been firm that affected communities need to see the bigger picture and accept whatever benefits are on offer. That is now a more difficult position to defend.
Community consent puts any large-scale development which divides opinion in the firing line; it could easily have killed off Edinburgh’s St James Quarter, such was the reaction to the W Hotel’s walnut whip design. It would definitely have sunk the Meadowbank Stadium redevelopment.
The answer might be to designate special economic growth zones based on brownfield sites where community consent is not required, but there would no doubt be a challenge to that too, and again the most obvious effect is delay after delay, and an uncertain landscape, both of which will severely hamper Scotland’s chances of remaining an attractive investment target.
But I have the solution for data centres; ask Claude how to build one with the same capacity as a 200-gigawatt hyperscale centre but which only takes up a fraction of the current planned space and uses half the power. We should have the answer long before Ms Goodlad comes up with the new rule book.
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