Outer House refuses to reduce council’s opinion that no environmental assessment needed to demolish two Glasgow tower blocks

About this case:

• Citation:
  [2024] CSOH 74
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Sandison

Caz Rae, who lived in the vicinity of the Wyndford Estate in Maryhill, sought the reduction of the opinion on the basis that it was irrational and predicated on errors in law. The owner of the properties in question, Wheatley Homes Glasgow Ltd, appeared as an interested party.

The petition was heard by Lord Sandison in the Outer House of the Court of Session. Mure KC and Deans, advocate, appeared for the petitioner, Burnet KC and Colquhoun, advocate, for the respondent, and J Findlay KC and Dunlop, advocate, for the interested party.

Not enough information

In February 2022 the board of the interested party, then known as Glasgow Housing Association Limited, decided to demolish its properties on the Wyndford Estate. As the proposed demolition fell within Schedule 2 of the Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2017, the Council was required to determine, by way of a screening opinion, whether an EIA was required, and concluded in March 2023 that one was not required.

On 12 September 2023, after judicial review proceedings were raised by the petitioner, the March 2023 opinion was reduced. A further screening opinion was adopted by the Council on 13 October 2023, again determining that an EIA was not required. The opinion took the view that the proposed demolition was unlikely to have significant effects on the environment as such effects were likely to be eliminated by mitigation measures.

Senior counsel for the petitioner submitted that the Council had misunderstood and misapplied the 2017 Regulations and had not had enough necessary information before it when it came to the conclusions set out in the opinion. Notably, it had considered “significant adverse effect” on the environment rather than just “significant effect” as set out in the Regulations. There was no clear statement about what the demolition process would entail, and material uncertainties remained.

For the respondent it was submitted that the grounds of challenge as set out amounted to nothing more than a disagreement with the exercise of the Council’s planning judgment. No evidence had been produced to demonstrate that the proposed development was complex, or that the proposed mitigation measures were wide-scoping, sophisticated, or not easily achievable, as the petitioner claimed. Senior counsel for the interested party adopted the submissions of the respondent.

Lesser end of the scale

In his decision, Lord Sandison said of the purpose of the 2017 Regulations: “The adoption of a screening opinion as to whether a particular development does or does not require an EIA is, notwithstanding its status as a preliminary administrative decision, an integral part of the process for ensuring that public participation occurs in appropriate cases. However, the language of the Regulations provides criteria for determining whether a development ought to be subject to an EIA which leave considerable room for differences of opinion, and the task of applying the law to the facts of any particular case has in the first instance been confided to the relevant planning authority.”

He continued: “On the related question of whether the Council had sufficient information to arrive at an informed judgment that a negative screening opinion could be issued, it requires to be borne in mind that it is in the nature of a screening opinion that a detailed and full assessment of the potential environmental impact of a proposed development is not required. That would follow if and when an EIA was found to be required. Not all uncertainties have to be resolved, nor every aspect of the matter made subject to full and comprehensive examination, before a decision can be made that an EIA is not required.”

On whether the Council had made an identifiable error of law, Lord Sandison said: “For reasons that remain unexplained, the Council chose – seemingly deliberately – to substitute the wrong for the right criterion, and it must be assumed that that wrong criterion was the one which it applied throughout the preparation of the screening opinion. The fault is thus a pervasive one, capable of affecting the court’s assessment of some if not all of the grounds of complaint already considered as well as representing an independent ground for reduction of the screening opinion.”

However, in considering whether a different conclusion would have been reached had the correct criteria been used, he added: “The defect in the Council’s screening opinion may be regarded as lying at the lesser end of the scale of gravity. If, as I consider, the adoption of the correct legal test would have resulted in no difference to the outcome of the screening decision process, then it follows that no member of the public has been deprived of the guarantees of access to information and participation in decision-making which it is the function of the EIA directive and the 2017 Regulations to safeguard.”

Lord Sandison therefore granted declarator that the decision of October 2023 was predicated on an error of law but refused to reduce the adoption of the screening opinion.