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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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Environmental Issues In The Planning Regime
UKELA Scotland Conference4th October 2012
Robert Sutherland, Advocate
Terra Firma Chambers
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
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?
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?
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
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
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
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?
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
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
Environmental Issues In The Planning Regime
Protected Expenses Orders
• Uprichard v The Scottish Ministers & Fife Council
• Walton v The Scottish Ministers
Environmental Issues In The Planning Regime
UKELA Scotland Conference4th October 2012
Robert Sutherland, Advocate
Terra Firma Chambers
