A presentation given at the Planning Democracy conference 2015

1. Aarhus in Scotland
Frances McCartney
Campbell & McCartney

2. Aarhus in Scotland
General overview of Aarhus
Environmental information rights
Public participation rights
Access to justice to challenge decision making

3. Overview of Aarhus
• Mainly procedural environmental rights
• Provides for access to environmental
information, public participation and access
to justice
• UK and EU are signatories

4. 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

5. 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

6. Rights to access environmental
information
• The
Environmental Information (Scotland) Regulations 2004
• The Freedom of Information (Scotland) Act 2002
• http://www.itspublicknowledge.info/YourRights/YourRig

7. 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

8. 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

9. 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

10. 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)

11. 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

12. 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’

13. 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

14. 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

15. 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/publi
• public-participation-directive-ppd-consultations/

16. 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)

17. Access to environmental
justice
• Aarhus Convention & EIA Directive
• Legal aid
• Protective Expenses orders & rules of
court
• 12 week (or 6 week) time limit

18. 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)

19. 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

20. 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

21. 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

22. 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

23. 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.”

24. 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?

25. 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

26. 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