Scottish Government legal costs for Judicial Review by Forestry Carbon Sequestration Fund: EIR release

Information requested

‘I would like to make a FOI about the legal costs to the Scottish Government as a result of Scottish Forestry applying an Enforcement Notice in September 2024 to stop work at Stobo due to unauthorised herbicide spraying and other reasons, near Peebles.

As a result of this Enforcement Notice, Scottish Forestry has been engaged in legal proceedings with the Forestry Carbon Sequestration Fund (registered in Guernsey), with this fund lodging a Petition for Judicial Review in December 2024.

Please could you provide the total legal costs to the Scottish Government to date for the legal proceedings due to the herbicide spraying, Enforcement Notice and subsequent actions? These costs are separate to those incurred by the Scottish Government when it conceded an earlier Petition for Judicial Review, lodged in April 2024, by a local community group.’

Response

As the information you have requested is ‘environmental information’ for the purposes of the Environmental Information (Scotland) Regulations 2004 (EIRs), we are required to deal with your request under those Regulations. We are applying the exemption at section 39(2) of the Freedom of Information (Scotland) Act 2002 (FOISA), so that we do not also have to deal with your request under FOISA.

This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption, because there is no public interest in dealing with the same request under two different regimes. This is essentially a technical point and has no material effect on the outcome of your request.

While our aim is to provide information whenever possible, in this instance the Scottish Government does not hold some of the information you have requested as it would not be possible to provide a total expenditure figure in relation to Scottish Government spending on the Stobo Residents Action Group Ltd Judicial Review. I have set out the reasons for this along with available expenditure figures below for your convenience.

It may help if I explain that Civil Servants operate flexibly across a range of policies and programmes according to the specific requirements of their work at any given time. They do not, as a matter of course, record the proportion of their time spent working on particular matters. It is therefore not possible to provide an expenditure figure regarding how much the Scottish Government has spent on work by Civil Servants involved with the Stobo Residents Action Group Ltd Judicial Review.

Therefore, with respect to your request for a total expenditure figure, this is a formal notice under Regulation 10(4)(a) of the EIRs confirming that the Scottish Government does not hold this information. This exception is subject to the ‘public interest test’. It is important to note that although we do not hold the information and have applied Regulation 10(4)(a) – information not held, it is a requirement that we have to apply the public interest test.

Under regulation 6(1)(b) of the EIRs, we do not have to give you information which is already easily accessible to you in another form or format.

It may help if I explain that some of the costs incurred by the herbicide spraying and enforcement notice were costs associated with the judicial review lodged by the Stobo Residents Action Group in April 2024 which has already been provided to you in our response under reference 202500454177.

There have been additional legal costs which relate directly to the proceedings by Forestry Carbon Sequestration Fund. These proceedings are at an early stage and costs to date total £8,020.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at https://www.gov.scot/foi-responses.