UK: Environmental Impact Assessment - Scottish Changes

Last Updated: 20 June 2011
Article by Murray Shaw

There has been considerable controversy in Scotland over the last few weeks in relation to the impact of European Law with trenchant (and somewhat rude) comments emerging from at least one Minister in the Scottish Government.  These comments and criticisms relate to the application of the European Convention on Human Rights by the Supreme Court in a way which the new Scottish Government apparently find unpalatable.  Leaving to one side the merits of the dispute, in reality the legal impact of the issues which have arisen is fairly limited in scope as only two cases are involved (albeit one of these, the Cadder decision, did affect a number of other pending prosecutions and resulted in emergency legislation).

Other areas of law from Europe are much more influential particularly in the sphere of planning and environment.  Of particular significance has been Directive 85/337/EEC which requires certain projects to be the subject of an Environmental Impact Assessment if they are likely to have significant effects on the environment.  That Directive was implemented in Scotland through the Environmental Impact Assessment (Scotland) Regulations 1999, albeit similar regulations were made for particular types of project (such as projects under the Electricity Act 1989).

The Directive and the interpretation and transposition of the Directive into national law (throughout the European Community) has been a fertile source of litigation and the past few years have seen a number of significant decisions (see below).

The Scottish Government brought into effect on 1 June 2011 a new set of Regulations – the Town & Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2011 which update and replace many of the existing provisions essentially as part of a consolidation exercise.  The Regulations are accompanied by a Circular, Circular 3/2011 – the Town & Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2011.

There are three principal reasons why updating was necessary:-

1. The Regulations themselves had been amended on a number of occasions to take account of changes and were therefore becoming difficult to read and follow.

2. A number of significant cases had made clear how the Directive and the Regulations were to be properly applied and/or interpreted. 

3. There had been significant changes to Scots Planning Law and it was therefore appropriate for the Regulations to be revised to take account of these changes.

As noted above there have been numerous cases over the past 11 years regarding the Directive, its application and its transposition into UK and Scots Law, many of which had a significant impact on the area.  For example in R (on the application of Baker) v Bath & Northeast Somerset Council decided in England in 2009, the court held that the English Regulations (the equivalent of the Scottish Regulations) did not properly implement the EIA Directive because they stated that in considering the effects of an extension to an existing development it was only the impact of the extension that was to be considered rather than the whole development as it might be modified.  The court confirmed that what should properly be considered was the development as extended.  Issues have arisen in relation to "multi stage consents" – in other words applications which involve seeking outline planning permission or planning permission in principle with detailed approval being secured by way of reserved matters or matters specified in conditions (this was considered in a case brought by a Mrs Barker concerning a leisure complex in Crystal Palace Park).  The courts have held that an EIA may be appropriate at the stage of the later consent (usually when the detail was approved) even although the principle of the development has been established.  Issues have also arisen about how environmental information can be provided and to what extent it is necessary for there to be a single document providing the relevant information (see for example Barclay v The Secretary of State for the Environment in 2000).

The Subordinate Legislation Committee at the Scottish Parliament clearly felt an update was appropriate having regard to all these changes and the outcome of that is in effect the new Regulations which came into effect on 1 June.  These Regulations are however not necessarily the end of matters.  In 2010 the European Commission commenced a public consultation exercise reviewing the Directive (which resulted in the Regulations in the United Kingdom).  That review is an ongoing process and may result in further changes.

Equally it should not be lost sight of but there are other provisions of significance in relation to the assessment of environmental issues which may yet have a significant impact on both Scots and indeed UK Law.  There have been a number of recent cases (for example) regarding the Aarhus Convention and the extent to which that UK law properly secures compliance with the UK's treaty obligations.  The Supreme Court has referred to the European Court issues about how the means of challengers relying upon the Aarhus Convention should be assessed (this is particularly relevant to the issue about whether the cost of bringing environmental challenges is prohibitively expensive for the purposes of the application of the Aarhus Convention).  The European Commission has made clear that it does not consider that the UK Government has taken sufficient steps to ensure compliance with the Aarhus Convention.  In England a working party established under the auspices of Lord Justice Sullivan has reported in similar terms and in Scotland new Court of Session rules are presently under consideration trying to deal with issues arising out of Aarhus compliance.  There is likely to be more litigation about whether or not protective costs orders are a sufficient way of securing compliance.

So far as the new 2011 Regulations are concerned they are regulations which predominantly consolidate the previous regulations and the various ad hoc changes which were made to them.  Specifically however they deal with issues such as extensions and multi stage consents.  While it is clear that environmental assessment can be carried out in relation to a project while only planning permission in principle is sought, the consideration at that stage will need to be robust and complete to take account of all the possible consequences.  It seems likely therefore that if planning permission in principle is sought and that development involves environmental effects which require to be assessed then considerable information than might otherwise be provided in relation to an application for planning permission in principle is likely to be necessary.

Before looking at matters in detail it is worth identifying one other recent case which does not appear to have been specifically picked up in the Regulations as they were made prior to the judgement coming out (though it may be no change is necessary – see below).  The Court of Appeal in England held on 25 March 2011 in R(SAVE) v The Secretary of State for Communities & Local Government that the demolition of buildings might constitute a project and therefore subject to the Directive with the consequence that a 1995 Direction in England that suggested otherwise was unlawful.  The Court of Appeal applied a recent European case involving the European Commission v Ireland.  While this will not necessarily result in further changes to the new Regulations it is a decision that is worth noting for future reference.

The Circular which accompanies the Regulations gives detailed guidance on how the Regulations fall to be applied (in the view of the Scottish Government) and set out the various processes and procedures as well as giving guidance to all parties regarding the application of the Regulations.  It makes the point (correctly) that in relation to certain types of development identified in Schedule 1 of the Regulations that the submission of an Environmental Impact Assessment is mandatory while in relation to other projects (Schedule 2 projects) the need for an Environmental Impact Assessment depends upon whether or not that development is likely to have significant effects on the environment because of facts such as nature, size or location. Those tests involve the application of judgement when appropriate.  The Circular makes this point and refers to a check list on the Scottish Government's web page which might be referred to with a view to assisting in the decision making process.

The fact that an EIA is submitted and the fact that that EIA shows there are adverse impacts does not mean that planning permission should necessarily be refused.  Paragraph 14 makes the point that in such circumstances "it remains the task of the planning authority to judge each planning application on its merits within the context of the Development Plan, taking into account of all material considerations, including the environmental impact".

In environmental matters difficult balancing judgements may need to be made – the Trump golf application is a good example of that.

The Circular gives guidance on various procedural matters – for example how a planning authority should deal with any additional information provided.  It also confirms that the period for determination of an application when an EIA is submitted is four months.  Whether or not that period is appropriate may well depend upon the circumstances and indeed that may be the subject of discussion between the applicant and the planning authority with a view to agreeing what would be considered a more realistic period.

The Circular does pick up the issue of demolition making clear that the descriptions contained in the Regulations refer to "sectoral categories of projects" (as the Circular phrases it) rather than the precise nature of the works.  The Circular makes the point that the headings are wide in scope and that the European Court has taken a broad approach in interpreting what is covered by the Directive.  Infrastructure projects encompass more (based upon the case of Goodman v Lewisham Borough Council) then what we might consider to fall within the definition of infrastructure (for example).  The Circular specifically quotes from a European judgement where the court made clear "the wording of the Directive indicates that it has a wider scope and a broad purpose".  In determining whether or not an Environmental Impact Assessment is required the purpose of the project as much as its label is important.

The new Regulations and the Circular are not likely to have a dramatic effect upon the way in which environmental assessment is carried out in Scotland.  Those in particular who are familiar with the process will not notice many significant changes.  Given the complexity of the area and the broad approach of the European Court however it likely that there will be further issues about the application of the Directive and these will arise irrespective of any further changes that the European Commission bring forward as a result of the current consultation process.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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