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Reclaiming Motion in the cause Caz Rae against Glasgow City Council (Court of Session)
Factual and Procedural Background
The petitioner opposed the demolition of four 26-storey tower blocks on the Wyndford Estate in Maryhill, Glasgow, planned by the interested parties as part of a £100 million regeneration scheme. The blocks were to be replaced with low-rise affordable housing and a community hub. Historic Environment Scotland refused a listing request for the blocks in January 2023. The respondents issued a screening opinion in March 2023 determining that an Environmental Impact Assessment (EIA) was not required, which the petitioner successfully challenged by judicial review due to inadequate reasoning. A second screening opinion was issued in October 2023 again concluding no EIA was required. The petitioner challenged this second opinion, and although the Lord Ordinary found an error of law in the screening opinion, he refused to reduce it on the basis that the correct legal test would have led to the same result. The reclaiming motion challenges that decision.
Legal Issues Presented
- Whether the respondents erred in law by applying the incorrect test in their screening opinion, specifically by considering only "significant adverse effects" rather than "significant effects" on the environment.
- Whether the respondents lawfully took into account proposed mitigation measures in deciding that an EIA was not required.
- Whether the respondents had sufficient information to reach a reasoned conclusion in their screening opinion.
- Whether the Lord Ordinary erred in refusing to reduce the screening opinion despite finding an error of law.
- Whether the petitioner was denied a fair hearing due to the Lord Ordinary relying on a case decided after the substantive hearing without affording parties an opportunity to address it.
Arguments of the Parties
Petitioner's Arguments
- The Lord Ordinary erred in relying on a case decided after the substantive hearing without allowing the petitioner to address its implications, depriving the petitioner of a fair hearing both at common law and under Article 6 of the European Convention.
- It was incorrect to assume that mitigation measures could be relied upon to conclude no EIA was required; even if mitigation was possible, significant environmental effects must be addressed in an EIA.
- The respondents failed to consider all required matters, notably relying on insufficient information, with outstanding surveys unaccounted for.
- The respondents applied the wrong legal test by focusing on "significant adverse effects" instead of "significant effects," and the Lord Ordinary misdirected himself by refusing to reduce the decision despite acknowledging this error.
- The burden of proof was incorrectly placed on the petitioner to show materiality of the error; it was for the respondents to demonstrate that the same outcome was inevitable.
Respondents' Arguments
- The Lord Ordinary was not bound to request submissions on the later case, which merely summarized existing law and did not innovate on EIA principles; no unfairness resulted.
- The screening opinion lawfully considered mitigation measures as part of the development, consistent with established case law and the Scottish Government’s Planning Circular.
- The respondents had sufficient information to reach a reasoned conclusion; the assessment at the screening stage is preliminary and does not require detailed environmental assessment.
- The error in applying the test to "significant adverse effects" rather than "significant effects" was real but of no practical consequence, and the refusal to reduce the decision was a proper exercise of discretion.
- The Lord Ordinary correctly recognized that the burden of proof was on the petitioner to establish irrationality or illegality of the respondents’ decision.
Interested Parties' Arguments
- The later case cited concerned a different context (planning permission for oil drilling) and did not affect the principles applicable to screening opinions for EIAs.
- The Lord Ordinary correctly held that the decision was a preliminary administrative one, with planning judgment a matter for the authority, and the court should only intervene if the decision was irrational or ultra vires.
- The error of law was procedural and did not affect the outcome; the Lord Ordinary’s discretion not to reduce the decision was properly exercised.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R (Finch) v Surrey CC [2024] PTSR 988 | Clarification of the procedural nature of EIA requirements and the significance test; whether mitigation can be relied upon at screening stage. | The court found the case summarized existing law but was factually distinct; it agreed mitigation measures could be considered at screening if modest and effective, and that the Lord Ordinary’s use of the case was appropriate. |
| R (Bateman) v South Cambridgeshire DC [2011] EWCA Civ 157 | Screening opinions are intended to identify a small number of cases requiring EIA; courts should not impose high burdens on planning authorities. | The court applied this principle to uphold the reasonableness of the respondents’ screening opinion. |
| Gillespie v First Secretary of State [2003] Env LR | Mitigation measures may be taken into account in screening opinions. | The court endorsed this approach as consistent with common sense and the Scottish Government’s Planning Circular. |
| Wyman-Gordon v Proclad International 2011 SC 338 | Fair hearing requirements and when a judge must allow parties to address new authorities. | The court held the Lord Ordinary was not bound to seek further submissions on the later case as it summarized existing law and did not cause unfairness. |
| Berkeley v Environment Secretary [2001] 2 AC 603 | Information gathering in environmental decision-making and the importance of public participation. | Referenced in arguments but the court found the respondents’ approach consistent with this precedent. |
| R (Lebus) v South Cambridgeshire DC [2003] Env LR 17 | Mitigation measures cannot eliminate the existence of significant effects; public consultation on conditions is required. | The court disagreed with the petitioner’s broad reliance on this case, finding the respondents’ consideration of mitigation lawful in context. |
| British Telecommunications v Gloucester CC [2002] 2 P&CR 33 | Consideration of positive effects and relevance to the requirement for EIA. | The court noted that positive effects alone do not trigger the need for an EIA. |
| Sheridan v News Group Newspapers 2019 SC 203 | Discretionary nature of allowing parties to address new authorities for fairness. | Supported the court’s conclusion that no unfairness arose from the Lord Ordinary’s approach. |
| Kenyon v Housing Secretary [2021] Env LR 8 | Only a small number of Schedule 2 developments require an EIA due to cost and time considerations. | Referenced to support the limited scope of screening opinions. |
| Clippens Oil Co v Edinburgh and District Water Trs (1906) 8 F 731 | Procedural fairness in judicial process. | Referenced to support absence of unfairness in the overall process. |
Court's Reasoning and Analysis
The court began by reviewing the applicable legislative framework, including the EU Directive 2011/92/EU and the Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2017, which require an EIA for developments likely to have significant effects on the environment. The definition of "significant effects" was central, with the respondents having applied "significant adverse effects" in error.
The court considered the role of mitigation measures at the screening stage, concluding that modest, plainly achievable mitigation that forms part of the development proposal can be taken into account in deciding whether an EIA is required. This approach aligns with the Scottish Government’s Planning Circular and established case law, notably Gillespie.
The court accepted that the respondents had sufficient information, including a detailed statement of methodology and expert affidavits, to reach a reasoned conclusion. The outstanding surveys did not undermine the sufficiency of information at the preliminary screening stage.
Regarding the alleged error in applying the test to "significant adverse effects," the court found that, while a legal error, it was of no practical consequence as the correct test would have produced the same outcome. The court emphasized that the purpose of the EIA regime is to identify developments likely to have significant adverse environmental effects, not to require an EIA for developments with only positive effects.
The court also addressed procedural fairness, holding that the Lord Ordinary was not obliged to seek submissions on a case decided after the hearing when it merely summarized existing law, and no unfairness resulted.
In all, the court found the respondents’ screening opinion reasonable and within the bounds of planning judgment, and the Lord Ordinary’s refusal to reduce the decision was a proper exercise of discretion.
Holding and Implications
The court RECALLED the Lord Ordinary's interlocutor dated 1 August 2024, REPELLED the petitioner’s pleas-in-law, SUSTAINED the respondents’ and interested parties’ pleas, and REFUSED to grant the remedies sought by the petitioner.
The direct effect is that the respondents’ second screening opinion, concluding no Environmental Impact Assessment was required for the demolition project, stands. The decision confirms that modest mitigation measures can be considered at the screening stage and that a legal error in terminology may be disregarded if it has no practical effect. No new precedent was established beyond affirming existing principles and the exercise of judicial discretion in such cases.
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