Environmental Impact Assessment - Scottish Changes

There has been considerable controversy in Scotland over the last few weeks in relation to the impact of European Law with trenchant (and somewhat rude) comments emerging from at least one Minister in the Scottish Government. These comments and criticisms relate to the application of the European Convention on Human Rights by the Supreme Court in a way which the new Scottish Government apparently find unpalatable. Leaving to one side the merits of the dispute, in reality the legal impact of the issues which have arisen is fairly limited in scope as only two cases are involved (albeit one of these, the Cadder decision, did affect a number of other pending prosecutions and resulted in emergency legislation). Other areas of law from Europe are much more influential particularly in the sphere of planning and environment. Of particular significance has been Directive 85/337/EEC which requires certain projects to be the subject of an Environmental Impact Assessment if they are likely to have significant effects on the environment. That Directive was implemented in Scotland through the Environmental Impact Assessment (Scotland) Regulations 1999, albeit similar regulations were made for particular types of project (such as projects under the Electricity Act 1989). The Directive and the interpretation and transposition of the Directive into national law (throughout the European Community) has been a fertile source of litigation and the past few years have seen a number of significant decisions (see below). The Scottish Government brought into effect on 1 June 2011 a new set of Regulations – the Town & Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2011 which update and replace many of the existing provisions essentially as part of a consolidation exercise. The Regulations are accompanied by a Circular, Circular 3/2011 – the Town & Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2011. There are three principal reasons why updating was necessary:-

1. The Regulations themselves had been amended on a number of occasions to take account of changes and were therefore becoming difficult to read and follow.

2. A number of significant cases had made clear how the Directive and the Regulations were to be properly applied and/or interpreted.

3. There had been significant changes to Scots Planning Law and it was therefore appropriate for the Regulations to be revised to take account of these changes. As...