Faculty backs calls for specialist environmental court in Scotland

The Faculty of Advocates has backed calls for a specialist tribunal or court in Scotland which would provide an effective forum for deciding environmental cases.

Friends of the Earth Scotland (FoES) is campaigning for change, and the Faculty said it supported a dedicated tribunal or court which could sit at venues around the country, rather than having a fixed base.

In response to a consultation paper, the Faculty also suggested that in cases of significant public interest, an individual or community group should be able to recover expenses from a developer or public authority, even if they lose the case.

Under the Aarhus Convention which seeks to secure access to justice in environmental matters, countries are required to have processes to assist challenges to decision-making which are “fair, equitable, timely and not prohibitively expensive” and which provide “adequate and effective” remedies.

“The Faculty agrees that it would be desirable for Scotland to have a dedicated Environmental Tribunal or Environmental Court,” the response stated.

“…it is important that issues of legality, including issues arising from environmental law, in relation to proposed developments should be dealt with in a timely efficient and cost-effective manner, so that proposals which are not lawful are not implemented but also so that, if a development proposal is lawful, it is not delayed unduly by the legal process.”

In a recent announcement, the lord president mooted an Energy and Natural Resources Court within the Court of Session but which could sit outside Edinburgh as required.

“That proposal has been welcomed by Friends of the Earth Scotland and is supported by the Faculty. Given the close link between energy and environmental issues – evident most obviously in the context of renewables – it would be natural to include environmental law within the jurisdiction of that Court,” added the Faculty.

“The main benefits of a specialist Environmental Tribunal or Environmental Court – whether within the Court of Session or a new separate Environmental Court – would be efficiency through specialisation and expertise. This should enable the Court to deal with environmental cases more swiftly and, therefore, more cost effectively than such cases are sometimes dealt with at present.

“The Environmental Tribunal or Environmental Court should not sit only in Edinburgh…the Faculty envisages that sheriff court buildings around the country – or, indeed, other public buildings – could be used for hearings…”

FoES has suggested that legal aid should be available to community groups, rather than to individuals within community groups, and the Faculty agreed.

On the question of expenses, it said: “Where an environmental law case raises a matter of significant public interest, which requires in the public interest to be adjudicated upon in the forum which has expertise to do so, the Court should have power to award expenses in favour of a pursuer or petitioner and against a developer or public authority irrespective of success.

“In effect, if the issue is one which should, in the public interest, be litigated, the Court should have the power to allocate expenses in a manner which reflects that public interest.”

The full document can be seen here.