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.
