Citizens’ right to challenge developments at stake

Determined bird watcher Marco McGinty returns to court today (6 February) in an historic challenge against the government’s decision to build a coal power plant on a nationally important nature site at Hunterston.

Mr McGinty risked thousands of pounds of costs when he took legal action against the government in 2009 after learning that his regular bird watching spot had been designated for the construction of a new coal-fired power station in the National Planning Framework (NPF). The case raises serious questions about Scotland’s planning and justice systems, and could set a new legal precedent.

Despite Ayrshire Powers decision to pull the plug on their plans to build a new coal power station at Hunterston last year, the site remains earmarked for this kind of development under the controversial planning framework.

Lawyers for Mr McGinty argue that the local community was not adequately consulted about plans to include the power station in the strategic document. The consultation was not advertised locally and only attracted 26 responses. Over a hundred local people attended a public meeting and many signed an affidavit for the court confirming that they only heard about the plans after the formal consultation period had ended. Once a development is designated as nationally important under the NPF the grounds on which the local community can object to it are very limited.

Mary Church, Friends of the Earth Scotland, said:

“The best decision making happens when communities are properly engaged and involved from the outset. Unfortunately, this doesn’t always happen, and sometimes people have to resort to legal action to defend their community and the environment.

“When the system fails to protect the environment, it’s up to communities and brave individuals like Marco to do it. When people take legal action in the public interest like this they shouldn’t be faced with financial ruin and archaic technicalities.”

Clare Symonds, Planning Democracy, said:

“Hunterston was included in the NPF too late and announced by a whisper. This is no way to make decisions about the building of a power station. People have the right to influence big developments on their doorstep through a fair and open process. Democracy took a holiday when it came to the Hunterston decision and it has ended up in court as a result. We hope the courts will recognise people’s democratic rights to be meaningfully consulted.”

McGinty is appealing the 2011 ruling of the Court of Session that found against him largely on technical grounds. A key finding of the court was that McGinty failed the 100-year-old test of ‘title and interest’, and so did not have the right to have his case heard, because his link to the site – as a local who visits the site almost daily – was too tenuous.

However, only a month after McGinty’s case, the UK Supreme Court changed Scots Law on this point thanks to an intervention by Friends of the Earth Scotland. In a landmark ruling the Court introduced a new test of ‘sufficient interest’, which opens up the courts for public interest challenges such as the case against Hunterston, and has clear implications for Marco’s appeal.

The European Commission is taking the UK to court over its failure to provide access to justice in environmental cases, particularly in relation to the excessively high cost of legal action. Although he was awarded the first ever Protective Expense Order in Scotland – set at £30,000 – Mr McGinty’s costs were estimated at £80,000.

ENDS

For media enquiries, please contact: Per Fischer, Press Office, Friends of the Earth Scotland

t: 0131 243 2719 e: pfischer@foe-scotland.org.uk

Notes to Editors

1. Marco McGinty’s appeal to the Inner House of the Court of Session is being heard from 6-8 February 2013. Lord Brailsford’s 2011 ruling against Mr McGinty, in which he found that Marco did not have ‘a real and legitimate’ or ‘real and practical’ interest in bringing the case, can be found at:

www.scotcourts.gov.uk/opinions/2011CSOH163.html

In an earlier hearing Marco was awarded the first ever protective expenses order in Scotland – which limits his liabilities to £30,000:

www.scotcourts.gov.uk/opinions/2010csoh5.html

Following legal action from the EC regarding the excessive cost of legal action, the Court of Session Rules Council are introducing rules of court to automatically limit petitioners liability to £5,000 in certain environmental cases.

2. Friends of the Earth Scotland changed Scot’s Law when we intervened in AXA General Insurance Limited and others (Appellants) v The Lord Advocate and others (Respondents) (Scotland), [2011] UKSC 46. The case centered on the validity of a 2009 Act of the Scottish Parliament that ensured that individuals could sue for damages if they contracted pleural plaques – scarring of the lungs. The insurers challenged the ‘title and interest’ of a number of individuals with pleural plaques to argue against the case. In ruling, Lord Hope of Craighead said: “I think that the time has come to recognise that the private law rule that title and interest has to be shown has no place in applications to the court’s supervisory jurisdiction that lie in the field of public law.” [Para 62]. For more information:

www.supremecourt.gov.uk/decided-cases/index.html

3. In April 2011 the EC referred the UK to the European Court of Justice (ECJ) for non-compliance with the access to justice provisions of the Public Participation Directive, over the excessive cost of challenging decisions. The case is expected to be heard later this year.

europa.eu/rapid/press-release_IP-11-439_en.htm?locale=en

4. Leading Scottish judges have recently upheld the importance of public interest litigation in defending the environment. In Walton (Appellant) v The Scottish Ministers (Respondent) (Scotland), [2012] UKSC 44, Lord Reed emphasized the role of legal challenges to important decisions and acts by public authorities, as a vital means of up upholding the rule of law [at paras 89-96], and Lord Hope commented on the osprey whose interest can only be protected if someone speaks up on its behalf [at paras 151-154]. Ruling at www.supremecourt.gov.uk/docs/uksc-2012-0098-judgment.pdf.

5. Friends of the Earth Scotland is

* Scotland’s leading environmental campaigning organisation

* An independent Scottish charity with a network of thousands of supporters and active local groups across Scotland

* Part of the largest grassroots environmental network in the world, uniting over 2 million supporters, 77 national member groups, and some 5,000 local activist groups – covering every continent.

www.foe-scotland.org.uk