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).

1. Environmental Issues In The
Planning Regime
UKELA Scotland Conference
4th October 2012
Robert Sutherland, Advocate
Terra Firma Chambers

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. 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. 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. 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. 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. 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. 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. 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. 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. Environmental Issues In The
Planning Regime
Protected Expenses Orders
• Uprichard v The Scottish Ministers & Fife
Council
• Walton v The Scottish Ministers

12. Environmental Issues In The
Planning Regime
UKELA Scotland Conference
4th October 2012
Robert Sutherland, Advocate
Terra Firma Chambers