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Legal Challenges to Decisions by Public Authorities Under the Public Participation Directive 2003/35/EC: A Consultation

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Introduction

1. Improving Scotland's natural and built environment, and the sustainable use and enjoyment of it, is a key strategic objective of the Scottish Government and vital to promoting sustainable economic growth.

2. One of the principles that the Scottish Government adheres to is that policy development and decision making affecting the environment should be conducted in an open and transparent way.

3. While the Scottish Government and other Scottish public authorities endeavour to get their policies and decisions affecting the environment right first time, the Scottish Government recognises that it is a principle of a just and fair society that there should be mechanisms in place for those who are affected by such decisions to challenge them.

4. At the same time, there is a wider public interest in ensuring that these vital democratic safeguards are exercised in a way which avoids unnecessary delay, particularly to projects of strategic national importance, and does not jeopardise the imperatives of economic recovery. It is also legitimate to ensure that public money is not wasted through unnecessary and expensive litigation.

Purpose of this consultation

5. This consultation paper addresses one important aspect of this wider agenda. It seeks views on proposals for new Rules of the Court of Session to regulate the award of protective expenses orders in judicial review cases and statutory reviews in the Court of Session 1 of decisions of public authorities falling within the scope of the Public Participation Directive 2003/35/EC ("the PPD"). It is proposed that these rules should strike a balance, within the requirements of our European obligations, which enables legitimate challenges to be brought without removing all cost risk to the petitioner and thereby encouraging spurious challenges.

6. In Scotland, it is for the Lord President of the Court of Session to make Rules of Court. The Lord President of the Court of Session ("the Lord President"), head of the Scottish judiciary, has indicated the Court's intention to make rules to address the issue of expenses in cases challenging environmental decisions within the scope of the PPD. The Scottish Government is undertaking this consultation exercise to assist in the development of such rules. Following this consultation, it is intended to put detailed policy proposals for the Court of Session Rules Council to consider and develop into rules of court.

7. The UK Government and Northern Ireland Department of Justice are also carrying out similar consultation exercises on proposals for rules of court to deal with costs-capping. 2

Background

8. The United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters 3 ("the Aarhus Convention") was adopted on 25 June 1998 in Aarhus, Denmark. It created a framework for public access to environmental matters, granting the public rights and imposing duties on parties and public authorities in relation to the three pillars of the Convention: access to information, public participation and access to justice.

9. The UK and EU are both parties to the Convention and the EU has partly incorporated the Convention through the PPD, which amended the Integrated Pollution Prevention and Control Directive 96/61/EC 4 ("the IPPC Directive") and Environmental Impact Assessment Directive (85/337/EEC) ("the EIA Directive").

10. The PPD requires Member States to ensure effective public participation in decision-making and regulation in relation to certain environmental matters, through access to information, access to justice and consultation. The PPD further requires that there must be access to a procedure for review of decisions by public authorities on environmental matters that is "fair, equitable, timely and not prohibitively expensive".

11. The sorts of decisions covered by the PPD principally cover those where an environmental impact assessment is required, for example, major infrastructure projects. Examples of the types of projects or programmes which may require an environmental impact assessment include:

  • windfarm developments,
  • hydroelectric schemes,
  • major roads,
  • waste incinerators, and
  • urban developments, such as schools, housing and sports stadia.

Full details of projects to which the EIA Directive applies are listed at Annexes I and II of the Directive, reproduced at Annex A of this consultation paper.

12. In Scotland, the obligation to ensure access to a review of decisions by public authorities is principally met by judicial review, where the legality of decisions by public bodies may be challenged by bringing a petition in the Court of Session; and by applications for statutory review, for example, under sections 238 and 239 of the Town and Country Planning Act 1997 (c.8) and Schedule 2 to the Roads (Scotland) Act 1984 (c.54).

13. An ancillary effect of the PPD is that amendments to the rules of title and interest to bring actions which the Directives apply to were also needed. That obligation has already been implemented in Scotland by Scottish Statutory Instrument. 5 The effect of these amendments is that, as well as those who would ordinarily have title and interest to raise proceedings, any non-governmental organisation promoting environmental protection would automatically be deemed to have standing to bring cases falling under the Directives. 6

14. Despite these provisions, the European Commission is of the view that more should be done to reduce the financial risk for individuals and non-governmental organisations bringing environmental challenges in the courts.

Protective Expenses Orders

15. A way to limit expenses in cases which the PPD applies to is to ask the Court to grant a Protective Expenses Order (" PEO") limiting the amount of expenses the petitioner has to pay to the other side if unsuccessful. This is therefore a modification of the usual rule in civil litigation that expenses should follow success.

16. In Scotland, the competency of the Court of Session to grant PEOs was recognised by the Court of Session in McArthur v Lord Advocate. 7 Although there is no formalised procedure for granting them, a number of PEOs have been granted in judicial review cases.

17. In the English case of R (Corner House Research) v the Secretary of State for Trade and Industry, 8 the Court of Appeal set out guidelines to be taken into account in considering whether to make a PEO. These guidelines were broadly endorsed in the Scottish Courts by Lord Glennie in the McArthur case. The guidelines are as follows.

  • A PEO may be made at any stage of the proceedings, on such conditions as the court thinks fit, provided that the court is satisfied that: (i) the issues raised are of genuine public importance; (ii) the public interest requires that those issues be resolved; (iii) the applicant has no private interest in the outcome of the case; (iv) having regard to the financial resources of the applicant and the respondent(s) and to the amount of costs that are likely to be incurred, it is fair and just to make the order; (v) if the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in doing so.
  • If those acting for the applicant are doing so pro bono, this will be likely to enhance the merits of the application for a PEO.
  • It is for the court, at its discretion, to decide whether it is fair and just to make the order in light of the considerations set out above.

18. Developments in English case law since then represent a widening of the view of the circumstances in which PEOs are considered appropriate, departures having been made from the Corner House guidelines in certain cases. In R (Garner) v Elmbridge Borough Council, 9 it was held that a claim made under the PPD automatically fulfils the public interest test and therefore qualifies for a PEO. The further issue of whether there must be an objective test to determine the amount at which a PEO is set, or whether a subjective test is permissible, was raised in Garner and in R (Edwards) v Environment Agency. 10

EU infraction proceedings

19. The European Commission has raised questions whether, across the UK, the current regime for granting PEOs in the UK complies with the requirement under the PPD that access to legal remedies should not be "prohibitively expensive". The Commission considers that the current legal framework for granting PEOs does not provide the level of certainty required by the PPD. A way forward, it has suggested, is to codify the procedure for PEOs in rules of court, with the rules themselves specifying a cap on the petitioner's (or applicant's) liability to pay the respondent's or defender's expenses rather than leaving this to the discretion of the court.

20. The European Commission adopted a reasoned opinion on 18 March 2010 which set out its view that the current rules on costs for environmental challenges do not ensure compliance with the PPD. The Commission referred the UK to the EU Court of Justice on 6 April 2011.

21. Following these developments, in conjunction with measures proposed by the UK Government and the Northern Ireland Department of Justice, the Scottish Government, proposes that there should be specific Rules of the Court of Session for granting PEOs to put compliance with the requirements of the PPD beyond doubt. We set out at paragraphs 30 to 50 the basis on which we propose these rules should operate.

Potential Impacts

22. Reducing litigants' potential liability for expenses may result in more legal challenges being brought to decisions to approve projects which have the potential to have a significant effect on the environment. They may also lead to more legal challenges against consents for smaller to medium scale developments.

23. Legal challenges can have a significant impact on projects both in terms of timing and cost. The main impact for public authorities (aside from the costs of the litigation itself) is in delays to a programme or project concerned and the associated economic or environmental benefits it might be expected to have. The measures outlined in this paper, alongside other work being taken forward by the Scottish Government, seek, therefore, to ensure such cases can proceed as expeditiously as possible through the courts.

24. Although Rules of Court do not fall within the Business and Regulatory Impact regime, given the potential impacts of the scheme for public authorities and businesses, it is intended to carry out a business and regulatory impact assessment, assisted by responses from this consultation paper, and direct engagement with relevant businesses to help assess the overall impact of the proposals.

The Aarhus Convention generally and links with other work being taken forward by the Scottish Government

25. The UK Government and the Northern Ireland Department of Justice are including in their consultations proposals that the rules regulating the award of protective costs orders (their equivalent to PEOs) should also apply to cases which may fall outside the scope of the PPD but within the scope of the Aarhus convention more generally.

26. The Scottish Government takes its obligations under international law seriously and will take them into account in the wider programme of work it is carrying out to reform civil litigation.

27. The Scottish Government has already established a detailed review of the cost and funding of litigation in Scotland, under the leadership of Sheriff Principal Taylor. That review launched a consultation exercise on 24 November. The review is expected to take around 18 months and will look among other things at the cost and funding of public interest litigation, including environmental actions. Those wishing to contribute to their consultation can find out more details from the Taylor Review website. 11

28. The Scottish Government also recognises that a number of reforms are needed to judicial review procedure, which Lord Gill recommended in his Scottish Civil Courts Review, and will address those issues as part of its planned programme of reform under the Making Justice Work Programme.

29. In the meantime, while more detailed and considered work is being carried out, the immediate priority for the Scottish Government in light of the reasoned opinion of the European Commission is to put a mechanism in place which will put compliance with the requirements of the PPD beyond doubt. The Scottish Government considers that Rules of the Court of Session, setting out a clear objective framework in which PEOs can be granted in relevant cases, will do that.