Reclaiming Motion In The Petition Of The John Muir Trust Against The Scottish Ministers And Sse Generation Limited And Sse Renewables Developments (uk) Limited
| Jurisdiction | Scotland |
| Judge | Lady Smith,Lord President,Lord Menzies |
| Judgment Date | 22 July 2016 |
| Neutral Citation | [2016] CSIH 61 |
| Published date | 22 July 2016 |
| Court | Court of Session |
| Docket Number | P843/14 |
| Date | 22 July 2016 |
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2016] CSIH 61
P843/14
Lord President
Lord Menzies
Lady Smith
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD PRESIDENT
in the reclaiming motion in the petition of
THE JOHN MUIR TRUST
Petitioners and Respondents;
against
THE SCOTTISH MINISTERS
Respondents and Reclaimers;
and
SSE GENERATION LIMITED AND SSE RENEWABLES
DEVELOPMENTS (UK) LIMITED
Interested Parties:
Act: Agnew of Lochnaw QC; Drummond Miller LLP
Alt: Mure QC, Byrne; Scottish Government Legal Directorate
Interested Parties: Wilson QC, Gill; CMSCameron McKenna LLP
22 July 2016
Introduction
[1] This is a reclaiming motion (appeal) against an interlocutor of the Lord Ordinary, dated 4 December 2015, reducing a planning consent granted by the respondents for the construction of a wind farm at Stronelairg, south of Fort Augustus. The key issue is the interpretation of Regulation 14A of The Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2000 and, in particular, whether the respondents published the required public notices advising of the impact of the development on the environment. There is also a question about whether the respondents had regard to a particular objection to the development “in principle” before taking their decision. The petitioners cross-appeal the refusal by a different Lord Ordinary, in an interlocutor dated 31 October 2014, to make a Protective Expenses Order in respect of the proceedings in the Outer House.
The Regulations
[2] In terms of the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters signed at Aarhus on 25 June 1998, Member States of the European Union are obliged to make certain environmental information available to the public on request. The EU implemented the Aarhus Convention by Directive 2003/4/EC, which was in turn implemented in Scotland by the Environmental Information (Scotland) Regulations 2004. In general terms, the EI(S) Regulations provide for public access to environmental information held by a public body.
[3] EU Directive 2011/92/EU requires an applicant to prepare an Environmental Impact Assessment before applying for consent for certain projects involving electricity works. The EIA Directive is aimed at ensuring effective public participation in decisions which may have an impact upon the environment. Article 6.2 provides that environmental information must be made available to the public concerned. In particular it states that:
“...
2. The public shall be informed, whether by public notices or by other appropriate means such as electronic media where available, of the following matters early in the environmental decision-making procedures ... and, at the latest, as soon as information can reasonably be provided:
- the request for development consent;
- the fact that the project is subject to an environmental impact assessment procedure…
…
(e) an indication of the availability of the information gathered pursuant to Article 5;
(f) an indication of the times and places at which, and the means by which, the relevant information will be made available;
(g) details of the arrangements for public participation made pursuant to paragraph 5 of this Article.
3. Member States shall ensure that, within reasonable time-frames, the following is made available to the public concerned:
…
(c) in accordance with the provisions of Directive 2003/4/EC ... information other than that referred to in paragraph 2 of this Article which is relevant for the decision ... and which only becomes available after the time the public concerned was informed in accordance with paragraph 2 of this Article.
4. The public concerned shall be given early and effective opportunities to participate in the environmental decision-making procedures ... and shall, for that purpose, be entitled to express comments and opinions when all options are open to the competent authority or authorities before the decision on the request for development consent is taken.
5. The detailed arrangements for informing the public (for example by bill posting within a certain radius or publication in local newspapers) and for consulting the public concerned (for example by written submissions or by way of a public inquiry) shall be determined by the Member States.
...”.
[4] The EIA Directive was implemented by The Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2000. In general terms, the EIA Regulations prescribe: the environmental information which an applicant for a proposed development must produce; the form which the information must take; and the publicity requirements with which an applicant must comply.
[5] Regulation 9 requires the applicant to publish an initial notice when an application is first submitted. This must state where copies of the environmental information may be inspected and provide for a method whereby, and a period during which, representations may be made to the respondents. It requires to describe the procedures under which, in terms of Regulation 14A (infra), representations about further or additional information may be made. The nature of possible decisions must be specified.
[6] The EIA Regulations distinguish between: environmental information which is provided by the applicant in an Environmental Statement; further information provided by the applicant in response to a request from the respondents; additional information provided by the applicant or another statutory consultative body; and representations made by consultative bodies or any other person. Additional information is defined in Regulation 2(1) as “substantive information relating to the environment” which is provided, either by the applicant or one of the statutory consultees, after the initial Environmental Statement is received, but before consent is determined, and which is not otherwise part of the Statement.
[7] Regulation 14A requires the respondents to take certain steps when they receive additional information. Its purpose is to ensure that, when important environmental information is received by the respondents after the initial public notice is published, the public is given notice that additional information has been received and where that information can be found. In particular, it provides:
“14A.- Additional information and timing of determination
(1) Where additional information is made available to the [respondents] they shall-
(a) serve a copy of the additional information on the planning authority or authorities ...; and
(b) notify the applicant that additional information has been served on the planning authority or authorities ...
(2) On the first occasion on which the applicant is notified of the service of additional information ... the applicant shall-
(a) publish in accordance with paragraph (3) a notice containing the information specified in paragraph (4); and
(b) serve a copy of that notice on the [respondents].
(3) A notice to which paragraph (2)(a) applies shall be published in two successive weeks in-
(a) the Edinburgh Gazette; and
(b) one or more newspapers circulating in the locality in which the land to which the application relates is situated ...
(4) A notice to which paragraph (2)(a) applies shall-
(a) describe the application in question and state that the [respondents] have received additional information;
(b) identify the planning authority or authorities to which the [respondents] are required to forward a copy of the additional information pursuant to paragraph (1)(a);
(c) state that the planning authority or authorities identified in subparagraph (b) are required to place the additional information on the register;
(d) state that requests for copies of the additional information may be sent to the [respondents] and specify an address for that purpose;
(e) state a date not less than four weeks after the date on which the notice is to be last published in accordance with paragraph (3) by which any person may make representations to the [respondents] in relation to the additional information and specify the address to which any such representations are to be sent; and
(f) state that the details given pursuant to sub-paragraphs (b) to (d) will also apply in respect of any additional information received by the [respondents] after publication of the notice.
...”.
Facts
[8] The petitioners are a charity, one of whose principal objectives is to “conserve and protect wild places with indigenous animals, plants and soils for the benefit of past and future generations”. The respondents, through their Energy Consents and Deployment Unit, are responsible for the consideration of applications for on-shore energy developments under the Electricity Act 1989. The interested parties are the developers of what was originally a proposal to construct an 83 turbine wind farm at Stronelairg.
[9] On 3 July 2012, in accordance with Regulation 9 of the EIA Regulations, the interested parties published a notice in the Edinburgh Gazette and certain local papers to alert the public to their proposal. This Notice stated that a copy of the application, relative plan and Environmental Statement, which presented an analysis of the environmental implications, were available for inspection at the Highland Council’s offices. The Statement was also available at the respondents’ offices. The Notice intimated that any representations could be made to the ECDU by 31 August 2012. It continued:
“When initial comments from statutory consultees are received, further public notices will give advice on how this information may be viewed by members of the public, and how representations may be made to [the respondents]. During the consideration of the proposal, [the respondents] may formally request further information to supplement the Environmental Statement and this will also be advertised in such a manner.
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