Case Law Survey, Environmental Issues In the Planning Regime

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Survey of European, English and Scottish cases concerning environmental issues in the planning system - looking at recent cases concerning environmental information, the right of state authorities to screen plans or projects before carrying out a Strategic Environmental Assessment or Environmental Impact Assessment, obligations to consult, the relationship between applications for energy projects under the Electricity Act 1989 and the development plan, and protected costs orders (protected expenses orders in Scotland).

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Case Law Survey, Environmental Issues In the Planning Regime

  1. 1. Environmental Issues In The Planning Regime UKELA Scotland Conference 4th October 2012 Robert Sutherland, Advocate Terra Firma Chambers
  2. 2. Environmental Issues In The Planning Regime Access To Environmental Information• Office of Communications v Information Commissioner, [2012] 1 CMLR 7; [2012] Env LR 7 – Article 4(2) of Council Directive 2003/4/EC (the Environmental Information Directive) encapsulates a proportionality test
  3. 3. Environmental Issues In The Planning Regime Access To Environmental Information• Ross Estates v The Scottish Ministers, Scottish Information Commissioner, 201101475 – Claim of confidentiality for legal advice as an exception to need for disclosure – Whether any difference in effect between Environmental Information Regulations and FOI Regulations?
  4. 4. Environmental Issues In The Planning Regime Access To Environmental Information• Jones v The Information Commissioner, First Tier Tribunal (General Regulatory Chamber, Information Rights), EA/2011/0156 – Claim of commercial confidentiality as an exception to need for disclosure – Whether any actual risk of harm to an economic interest?
  5. 5. Environmental Issues In The Planning Regime Screening• Sillogos Ellinon Poleodomon kai Khorotakton v Ipourgos Perivallontos, Khorotaxias kai Dimosion Ergon, Case C-177/11, ECJ – Any examination under SEA Directive to screen whether a plan or project likely to have significant effect on a site must be limited to asking whether, on the basis of objective information, a significant effect on the site can be excluded
  6. 6. Environmental Issues In The Planning Regime Screening• R (on the application of Loader) v Secretary of State for Communities and Local Government, [2012] EWCA Civ 869 – Distinction drawn between what might influence development consent and what might be considered to have a significant effect on the environment – should not confuse these different tests – On the facts, appears quite straightforward
  7. 7. Environmental Issues In The Planning Regime Consultation• R (on the application of Halebank Parish Council) v Halton Borough Council, [2012] EWHC 1889 (Admin) – Breach of Article 6 of the EIA Directive; – Breach of legitimate expectation as to consultation period; – Misinterpretation of development plan policy
  8. 8. Environmental Issues In The Planning Regime Consultation• Walton v The Scottish Ministers, [2012] CSIH 19 – Appealed to Supreme Court – Tiered approach of Directives – Assessment of Reporters on effect on protected species determinative of outcome?
  9. 9. Environmental Issues In The Planning Regime Renewable Energy• William Grant & Sons Distillers Limited v The Scottish Ministers, [2012] CSOH, 98 – Energy projects under the Electricity Act 1989 do not require to conform to the development plan
  10. 10. Environmental Issues In The Planning Regime Waste• Hamilton v South Lanarkshire Council, [2012] CSOH 9 – The difficulty of mounting a challenge on straight ‘irrationality’ arguments
  11. 11. Environmental Issues In The Planning Regime Protected Expenses Orders• Uprichard v The Scottish Ministers & Fife Council• Walton v The Scottish Ministers
  12. 12. Environmental Issues In The Planning Regime UKELA Scotland Conference 4th October 2012 Robert Sutherland, Advocate Terra Firma Chambers

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