Advocates back Scottish environment court proposal

A GROUP of Scotland’s top lawyers is backing calls for a specialist environmental court in Scotland to decide cases such as disputes over wind farms and fracking operations.
The High Court in Edinburgh. Picture: Scott LoudenThe High Court in Edinburgh. Picture: Scott Louden
The High Court in Edinburgh. Picture: Scott Louden

The Faculty of Advocates has announced its support after a report by green campaigners suggested a dedicated tribunal or court should be set up to offer affordable access to justice for people concerned about protecting the planet, while also providing a faster and more cost-effective system.

Environment charity Friends of the Earth Scotland (FoES) is battling for legal changes that will help Scotland comply with the Aarhus Convention, set out by the United Nations Economic Commission for Europe to ensure access to justice in environmental matters.

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The convention requires countries to have measures in place to assist challenges to decisions, that are “fair, equitable, timely and not prohibitively expensive” and which provide “adequate and effective” solutions.

FoES has made several recommendations, including legal aid being made available to community groups rather than individuals within them.

In response to a consultation on the proposals, the independent body of lawyers came out in support of a dedicated tribunal or court that could sit at venues around the country, rather than having a fixed base.

The faculty also suggested that in cases of significant public interest, individuals or community groups should be able to recover expenses from a developer or public authority, even if they lose the case.

The report states: “It is important that issues of legality, including issues arising from environmental law, in relation to proposed developments should be dealt with in a timely efficient and cost-effective manner, so that proposals which are not lawful are not implemented but also so that, if a development proposal is lawful, it is not delayed unduly by the legal process.”

The head of Scotland’s legal system, the Lord President of the Court of Session, Lord Gill, recently suggested an energy and natural resources court could be created within the Court of Session, but which could sit outside Edinburgh when required.

The faculty has endorsed the proposal, highlighting benefits of “specialisation and expertise”.

“Given the close link between energy and environmental issues – evident most obviously in the context of renewables – it would be natural to include environmental law within the jurisdiction of that court,” according to the body..

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“This should enable the court to deal with environmental cases more swiftly and, therefore, more cost-effectively.”

With regard to expenses, the lawyers agreed the new court should have power to award expenses in favour of a pursuer or petitioner and against a developer or public authority “irrespective of success” in cases of “significant public interest”.

“In effect, if the issue is one which should, in the public interest, be litigated, the court should have the power to allocate expenses in a manner which reflects that public interest.”

FoES director Richard Dixon welcomed the faculty’s findings. He said: “An environment court would look at major planning cases, and provide a route to a quicker, more efficient and cheaper decisions than the current system of judicial review.”