Ewan Kennedy: Legal issues for environmentalists

I thought it would be helpful to have a look at the sort of legal problems individuals and campaign groups are likely to have to face in challenging decisions taken by public bodies, such as local authorities. When I started work on this I thought it would be reasonably topical, but last week it suddenly became much more topical, for reasons which you will discover at the end.

Last year was a disastrous one for environmental litigants in the Scottish Courts. The second half of the year saw the widely reported failure of attempts to stop the Aberdeen Ring Road, a new coal-fired power station at Hunterston and the St Andrews West development plan. The third of these highlighted a major problem in such cases when the applicant, Mrs Penny Uprichard, had expenses of about £173,000 awarded against her. The result is a sorry story that reflects badly on our legal system and its ability to cope with environmental issues at a time when the countryside is faced with numerous applications for developments such as power lines, wind farms, opencast mines and fish farms and people are becoming more environmentally aware.

Unfortunately these three cases were not unusual. One has to go back to July 2000 to find the most recent successful environmental judicial review, when the RSPB managed to stop the Scottish Ministers from granting licences for the shooting of barnacle geese on Islay. In the period from then to date there have been fewer than a dozen reported cases, all of which have failed.

This failure rate raises the suspicion that something is badly wrong. Further, on the face of things it looks as if the Scottish Government could be in breach of its obligations in terms of the Aarhus Convention, which was signed in 1998 and eventually ratified by the United Kingdom Government in 2005. The Convention was designed to give members of the public access to information about environmental matters and to allow persons showing “sufficient interest” access to court to challenge official decisions that seemed to threaten the environment. Further, in relation to litigation it provided that a remedy should be  “fair, equitable, timely and not prohibitively expensive.” Both of these expressions have been giving rise to problems in court and I’ll explore them later.

The St Andrews case concerned the preparation of a local development plan, but a more usual example could be where the decision of a planning committee on a specific application is simply felt to be wrong. As most of us here will know, if the decision has gone against the applicant there is already the legal right to insist on a local enquiry carried out by a reporter appointed by the Scottish Executive, but that right is not open to an objector where an application has been granted. There was quite a debate about this a few years ago when the planning law was being reviewed and those who lobbied for a “third party right of appeal” were unsuccessful.

It should be reasonably obvious that we can only challenge an actual decision. That’s clear in the case of a grant of planning consent, but may not be so clear in all cases. For example an official may have expressed an opinion that we disagree with, but not amounting to an actual decision. We can’t go to court just because, for example, we’ve been told that an application will be recommended for approval.

So, we’ve objected to the application but the decision has gone against us, what can we do to put matters right? Most European legal systems have a judicial review procedure and Scotland is no exception.

Here the action requires to be brought in the Court of Session in Edinburgh, rather than in the local Sheriff Court. This is a bit of a mixed blessing, as procedure in Edinburgh is inevitably quite expensive and inconvenient. On the other hand the requirement to employ a specialist advocate to present the case means that there should be, but of course may not be, competent advice at an early stage about whether or not the case is likely to succeed. Most people in legal practice havecome across examples of cases that simply should never have been started and probably wouldn’t have been had sufficient thought been applied at the outset.

So, we’ve learned of the decision and don’t agree with it, let’s look at how it can be challenged.

There might be some technical reason for a challenge, such as a committee going completely off the rails procedurally, but these cases are very rare. Leaving that sort of thing aside it’s not enough that we disagree with the decision, or just think that insufficient weight has been given to an aspect of the evidence. And, perhaps surprisingly, it’s not even enough if the judge carrying out the review would have decided differently. The court will not reconsider the evidence.

You have to show that the decision is wrong in law, for example that the interpretation of a rule of law or a planning principle has been perverse. We saw an example a few years ago where I live, where some councillors were trying to manipulate the definition of “infill” to include a major development on protected land. Fortunately they were outvoted, but otherwise there would have been a prime case for review. Lawyers call this aspect the Wednesbury rules after an old case of that name. Basically the test considers whether a decision is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. It should be clear that only a minority of unsatisfactory decisions will come near to passing this test.

So far what I’ve said applies to all judicial review cases and I’d now like to look at something that applies particularly to environmental ones.

I said above the Aarhus Convention gives access to justice to persons with a “sufficient interest.” It’s left to the legal systems of individual member states to work out what this means in their own countries. The Scottish courts usually refer to this as “title and interest,” the two being very closely linked. This gives no difficulty in the usual case where financial or property matters are being litigated, where there will be an obvious financial benefit in the event of success. In fact the mainstream tradition of the Court of Session involves adjudicating on such matters, usually between wealthy individuals or companies.

In a recent case, concerning the asbestos legislation, Lord Emslie declared “Mere busybodies should not be permitted to take up court time, and cause expense to others, where the matters in issue, and indeed the outcome of proceedings would not practically affect them in any relevant manner….” That case didn’t concern the environment and he did go on to say “But in other cases, especially those with a public law element, the qualifying relationship may be of a rather broader and more general nature ….” How much broader and more general that might be in pure environmental cases with no money involved is not presently clear. If for example I am concerned with Marine Scotland granting licences for the shooting of a protected species such as seals, when other alternatives are open to a fish farm, such as the use of special anti-predator nets, but don’t live near where this is going on or operate a wild life tourism business, do I have an interest? In the present state of Scots law, I’m probably a mere busybody.

There’s a lot of room for discretion in how the rules are applied and I regret that there is increasing evidence that the Court of Session really doesn’t like being bothered by environmentalists challenging public bodies. Let’s look at the Hunterston case, decided last October, when the court was asked to rule that Scottish Ministers acted illegally in deciding that there was a national need for a new coal-fired plant there.

Mr Marco McGinty had raised a judicial review in the Court of Session, supported by a broad coalition of organisations and individuals, including the Scottish Wildlife Trust, against a background of over 16,000 objections. A local resident and bird watcher, who regularly walked over the land, he failed to demonstrate that he had a sufficient interest to proceed. SWT commented “We are very disappointed in this decision….It really does serve to show how profoundly undemocratic the Scottish planning and legal systems can be and how incredibly difficult it is for the ordinary individual or other parties to access the courts. Scotland is already behind the rest of the UK and much of Europe in opening up access to the courts. This decision seems to go against the flow of progress happening elsewhere in the UK and Europe.”

Had Mr McGinty cleared the initial interest test he would still have had to succeed on one of the technical grounds, but he didn’t even get there.

What happens if you do get there, but still fail at the end of the day?

It’s believed to be an American Judge Sturgess who first said “Justice is open to everyone in the same way as the Ritz Hotel.” It’s possible he never existed, but he expresses a truth, because if the costs of going to court are prohibitive you might as well have no rights at all.

But remember what the Aarhus Convention says about expense. The court remedy must be “fair, equitable, timely and not prohibitively expensive.”

To give effect to this the English courts started to grant discretionary “protective costs orders” in environmental cases and the Scottish courts have followed suit. Unfortunately having taken this step they immediately wiped out the benefit by imposing a “fair and just” test and insisting on an assessment of the means of the particular litigant.

In principle this seems wrong, on a number of grounds. Environmental litigants are almost never acting alone. Instead they form campaign groups, typically comprising a central core of activists and a much larger crowd of more or less enthusiastic followers. Imposing a subjective test seems to mean that if they were to litigate as a group the resources of all would require to be cumulatively assessed, with obvious results. On the other hand for them to select a particularly impoverished one of their number to carry the banner seems to me dishonest, indecent and imprudent. It is dishonest because it obscures the true nature of the case and presents it as an individual, not a community, issue, indecent because it encroaches on the dignity and privacy of the person selected and imprudent because that person is then solely and totally in charge of the case and can, for example, call a halt if the stress becomes too much. This is borne out by the recent cases.

Mrs Forbes’ case against Donald Trump over his golf course failed because she was held to have had no title and interest. She had failed to object to Trump’s planning application and was maybe selected by the local campaign group to raise the case precisely because she had few assets. Because of her lack of interest she got no protection from Aarhus and Trump’s expenses awarded against her.

William Walton raised his action against the Aberdeen Ring Road in his own name, but was backed by Road Sense, a group of about 560 campaigners, who had already raised and spent about £250,000 on the previous public inquiry. He agreed to disclose his means (he was a lecturer, of average means) and the court granted a Protective Expenses Order (“PEO”) with a cap of £40,000.

Marco McGinty had no assets, was unemployed and was predictably refused legal aid for his challenge to the new Hunterston power station. As we saw above his action was supported by Scottish Wildlife Trust and there had been 16,000 objections to the scheme. Lady Dorrian capped his expenses at £30,000, a discretionary decision for which no detailed reasons were given.

And Mrs Penny Uprichard went down for £173,000 expenses when her case failed on the basis of lack of interest.  She had challenged the Council’s development structure plan for St Andrews West and although litigating alone it was never disputed that she also represented others, who for example had given her pledges totalling £33,000. Lord Gill stressed inter alia that she lacked a patrimonial interest in that she didn’t live in the precise area and owned no property there, also she had failed to disclose her capital position. He declared “Those who challenge decisions of this nature enter into litigation with their eyes open. They have to expect that if they should fail, the normal consequence will be that they will be liable in expenses.” Ironically, had she owned property in the area directly affected by the plan she would have got a hearing, but probably wouldn’t have been an environmental litigant, so Aarhus would still not have applied. You can fail its test by having too much as well as too little interest.

A strange aspect of our country is that rules of great importance are sometimes made not at Holyrood, but by a completely unelected body up the road. The Court of Session has a Rules Committee comprising three judges, five advocates and five solicitors, who meet behind closed doors two or three times a year. For some time they have been toiling over draft rules on protective expenses orders and there are signs that the European Commission has not been too pleased with their efforts. It seems that their first draft was found wanting because it retained both the subjective means test and judicial discretion. The Commission suggested that there should be a limit in all cases, which could be lowered but not raised, with an absolute cap of £25,000. Their response was to accept this but decide that the cap would apply to individuals only, so for example campaign groups would face unlimited liability and it would be pointless to obtain pledges as they would be taken into account.

Meanwhile various other bodies have been taking an interest in these matters.

In the Supreme Court Lord Hope expressed the view that the expense test should be an objective one, with a limit of £5,000 on all cases. He referred the issue to the European Commission for guidance on the principles.

Lord Gill’s own recent civil justice review considered the problem and found “The current restrictive approach of Scots law to title and interest to sue makes it difficult for campaigning groups to bring proceedings to test the lawfulness of controversial policies or decisions of public bodies. The law should be amended so that the test of standing should be whether the applicant has demonstrated a sufficient interest in the matter to which the proceedings relate…. There should be an express power to enable the Scottish courts to make special orders in relation to expenses of the kinds referred to, in cases raising significant issues of public interest.”

Finally this month the Scottish Government has come aboard the debate with a consultation on “Legal Challenges to Public Authorities under the Public Participation Directive,” which runs until 3 April. The provisional view of the government is that there should be a cap of £5,000 on an adverse award of expenses, but that where a campaigner is successful the expenses awarded should also be capped, at £30,000. The consultation looks at expenses orders only and we can only hope that there will be a further one on how the concept of “sufficient interest” should be defined, but it seems that matters are perhaps at last looking up for the environment and its supporters.

Ewan Kennedy

This is the text of a talk Ewan Kennedy gave last night to the Lorn Environmental Action Group AGM. Those who were present and those with an interest  – a ‘need to know’, perhaps – in this matter, will find it worthwhile to have the text available.

Ewan Kennedy is also the author of a series of heavily read articles for us on fish farming, its environmental impact and the regulatory regime in which it exists – technically if not always in practice.

The image at the top is of Parliament House in Edinburgh, where the Court of Session sits. It is by Maccoinnich and is reproduced here under the GNU Free Documentation licence.