Aarhus in Scotland

Frances McCartney

Campbell & McCartney

Aarhus in ScotlandGeneral overview of Aarhus

Environmental information rightsPublic participation rights

Access to justice to challenge decision making

Overview of Aarhus

• Mainly procedural environmental rights

• Provides for access to environmental information, public participation and access to justice

• UK and EU are signatories

Aarhus - an overview

• In Scotland international law not binding but can assist with interpretation

• Signing by EU means that Aarhus (partly) implemented via EU route

• Compliance Committee - can make a complaint direct

Main problem in Scotland - access to justice

• Environmental issues under litigated in Scotland - historic issues with title and interest

• International and European obligations - Aarhus Convention and Article 9

• Rights to access environmental justice (challenge decision making) in a way that is not prohibitively expensive

Rights to access environmental information

• The Environmental Information (Scotland) Regulations 2004

• The Freedom of Information (Scotland) Act 2002

• http://www.itspublicknowledge.info/YourRights/YourRights.aspx

Rights to information

• Generally a problem?

• Some issues - commercial confidentiality

• Host of cases - most out with court actions and are about long term campaigns/issues

Rights to information

• Rights under EIR

• Can make an oral request for information

• Slightly different exemptions under FOI/EIR

• In practice for the authority to decide if environmental information or not

Rights to information

•Scottish Information Commissioner’s website has guides and hints

•It suggests making separate requests for information so that it doesn’t get ‘lost’

•Be specific - e.g. information from last 12 months

•Think about how the request is framed  

Environmental information rights

• Way requests are framed - recorded information

• “For example, don't ask:What were you thinking when you took the decision to shut the Scotstown school playground? Instead, you could try:

• Please send me information from all reports, correspondence or communications relating to the decision to shut the Scotstown school playground.” (taken from SIC website)

Environmental information rights

• 20 working days - if no response or a refusal, internal review

• If still don’t have information, appeal to SIC - no charge, staff very helpful

• Can be done at the same time as taking court action

Public participation rights

• Public participation rights under Aarhus only apply to certain types of development

• EU Directive 2011/92/EU

• Annex 1 and Annex II developments

• ‘Screening’

Public participation rights

• If caught by Directive increased participation rights

• Numerous challenges in England on whether caught by Directive

• Schedule 1 - mandatory; Schedule 2 - depends on factors such as size, etc

Public participation in planning

• Scottish legislation - goes further in respect of pre-application consultation

• But not clear if pre-application consultation is making any difference to genuine consultation rights

Public participation in planning

• Town and Country Planning (Development Management Procedure) (Scotland) Regulations 2013 - classes of development

• But remember public participation on plans and programmes - strategic environmental assessment - not just planning applications

• and also consultations on IPPC from SEPA http://www.sepa.org.uk/regulations/consultations/public-participation-under-ppc/

• public-participation-directive-ppd-consultations/

Public participation

• what are plans and programmes caught by consultation rights? and what specific development proposals are caught?

• cases - adequacy of participation when parliament decides (Belgium airport cases - 10 minutes of debate; High speed rail), consultation Edinburgh Gazette and alternatives (McGinty), differences between SEA and EIA (Walton)

Access to environmental justice

• Aarhus Convention & EIA Directive

• Legal aid

• Protective Expenses orders & rules of court

• 12 week (or 6 week) time limit

Legal aid

• Two problems

• Regulation 15 of Civil Legal Aid (Scotland) Regulations 2002 - joint and common interest - will arise frequently in environmental cases

• Assisted person status - generally protected against expenses unless have acted unreasonably or change in financial circumstances - does not apply to SU2/SU4 work (emergency legal aid)

Protective expenses orders

• First granted McGinty v Scottish Ministers [2010] CSOH 5

• Caps liability at outset of case

• McGinty authority for public interest matters, must be required to continue with case; wider than environmental cases - but high cap £30,000

• Tests are high - few orders granted - but Hillhead Community Council - £1,000 limit

Protective expenses orders• Potential breach of European law as no certainty

to orders being granted - so Rules in Court of Session - chapter 58A

• Rules are limited in scope :

• only EIA or IPPC cases

• court consider whether it is prohibitively expensive

• court considers prospect of success

• may not be sufficient for European law and international law obligations

Protective expenses order

• Edwards - mixture of subjective and objective test

• Maximum limit which can be lower (£5,000 cap, recovery limited to £30,000)

• However, Scottish rules can refuse an order outright if not prohibitively expensive

Some Scottish cases

• McGinty - early case cap of £30,000

• Walton pre rules of court cap of £40,000

• Newton Mearns Residents Flood Prevention Group - outwith rules, refused on the lack of general public interest

• Friends of Loch Etive - refused on financial grounds - court could not be satisfied order required

• John Muir Trust - refused on financial grounds

Some Scottish cases• Carroll v Scottish Borders Council

• Suggest that the prospects of success should not be a dry run of the full hearing to come

• Sets out in detail the rules

• Helpful “In my opinion it is plainly desirable that proceedings for protective expenses orders should be kept short and simple, to minimize expense as far as possible.”

Gaps

• Aarhus ‘substantive and procedural review’

• Difference - case on merits?

• Article 9 of Aarhus not just about challenging decisions when made, what about noise and other nuisances?

Time limits

• At present no time limit in judicial review cases

• 12 week time limit being introduced by Courts Reform (Scotland)

• Likely to significantly hinder community groups and NGOs in environmental cases

• 6 week time limit for some cases dealt with by local review bodies, for some decisions under the Roads (Scotland) Act and planning acts, and other regulatory decisions

Solutions?

• Funding - desire for decisions to be made quickly by the courts - means all parties and the courts need to be resourced

• Lord President’s study - opportunity for case management and dedicated resources

• Scottish Government consultation - desire for change?

• Legal aid decisions & timescales for decisions