Environmental law in a state of flux - Lauren Smith and Lindsay McCosh

We find ourselves at a crucial juncture in the development of environmental law. Last month, the Met Office recorded a temperature over 40 degrees for the first time in the UK.

The combined pressures of climate change, increasing focus of the Scottish Government on environmental issues, and post-pandemic cost of living crisis are resulting in changes to law and policy with wide-reaching impacts on individuals and businesses.

Three environmental law topics are in a particular state of flux: climate change litigation, the protection of wildlife, and housing law relating to short-term lets.

Climate Change Litigation

Legal challenges are increasingly important for people and organisations looking to effect policy on the climate crisis.

Globally, individuals and activists are increasingly turning to national and international courts to hold governments and corporations to account in relation to climate change.

In Scotland, Greenpeace attempted to challenge the decision to exploit the Vorlich oil field in Greenpeace Ltd v The Advocate General. In October 2021, the Court of Session refused the appeal in terms of both procedural issues raised, and the substantive issue as to whether an environmental impact assessment should consider the effect of the consumption of oil and gas by the end user. The court found this latter issue is essentially political and not legal.

More recently, in Friends of the Earth (and Others) v Secretary of State for Business, Energy and Industrial Strategy, the High Court in England and Wales found the UK Government’s Net Zero Strategy does not meet the government’s obligations under the Climate Change Act to produce policies that show how the UK’s legally-binding carbon budgets will be met.

This case may pave the way for UK courts to take a more active role in assessing whether the government is meeting its legal obligations under climate change legislation. Legal challenges are an increasingly important tool for people and organisations looking to effect policy change or seek transparency in relation to the climate crisis. Group proceedings, permitted in the Court of Session since 2020, may also offer significant opportunities in relation to climate change litigation.

The Protection of Wildlife

The protection of wildlife has also been the subject of both legal challenges and legislation in Scotland. In Trees for Life v NatureScot, the Court of Session considered the licensing scheme which regulates the culling of beavers, a European Protected Species since 2019. The Court found NatureScot had issued licences allowing beavers to be culled unlawfully, as it failed to give its reasons in writing.

Additionally, the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Act came into force in November 2020, increasing maximum penalties for the most serious animal welfare and wildlife crimes to five years imprisonment and unlimited fines. The Act also reclassifies mountain hares as endangered animals, which will result in increased legal protection.

These developments reveal the importance of wildlife protection to both animal welfare organisations and the Scottish Government, as well as the crucial role of legal mechanisms in securing this protection.

Short-Term Lets: Regulation and the Built Environment

Under new regulations, local authorities have until October 1, 2022 to establish licensing schemes for short-term lets. Once these are established, existing hosts have until April 1, 2023 to apply for a licence. Significantly, after October 1, 2022, new hosts will need to have a licence to take bookings or receive guests.

To apply for a licence, hosts will need to show they meet certain mandatory conditions, and additional conditions imposed by the licensing authority. Also, local authorities will be able to create “short-term let control areas”, requiring hosts to apply for planning permission before applying for a licence. If a licence application is refused, hosts will be able to appeal by summary application to the Sheriff Court within 28 days of the decision.

These regulations mark a significant change to the regulation of short-term lets in Scotland, creating conditions that will apply across the country as well as enabling local authorities to impose additional conditions and designate specific control areas. The decisions of local licensing authorities will have an impact on the ability of hosts and operators to offer holiday lets, and in some cases legal action may be necessary to challenge licensing decisions.

In conclusion, this is a crucial moment for the development of environmental law in Scotland, as multiple pressures are brought to bear on climate targets, wildlife protection, and the urban landscape.

Lauren Smith is an Associate and Lindsay McCosh a Trainee Solicitor, Balfour+Manson