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Annex C - Further information about environmental appeals systems
Environmental Appeals to the Scottish Ministers
Introduction
This section focuses on a specific type of environmental dispute, commonly referred to as an 'environmental appeal to Scottish Ministers'. These appeals arise from provisions in most current environmental legislation whereby a licence/permit holder can raise a question with Scottish Ministers against a regulatory or environmental action by an enforcing authority such as the Scottish Environment Protection Agency.
Number of Appeals
At present, and addition to those provided for in Planning legislation, there are over 100 provisions relating to environmental appeals to the Scottish Ministers within around 10 Acts and associated Regulations. New legislation is adding to this number continually.
Overall, since 1995, over 250 cases have been received. Of these, about 80% were withdrawn before Scottish Ministers made their determination.
Case numbers have varied considerably over the years. Following a steady increase from the 1990s to the early 2000s to around 40 cases per year, there was a sharp (and inexplicable) fall around 2004/5 to under 20. Recently there has been another increase and it is anticipated that new legislation, in particular the will generate new appeals.
Another observed trend has been that individual cases have been growing in complexity over the years.
Types of environmental appeals which can be made to the Scottish Ministers
Appeals to the Scottish Ministers can be broken down into two broad categories:-
1) appeals against the refusal of a licence/permit/authorisation (or against conditions imposed in a licence/permit/authorisation) required under environmental legislation; and
2) appeals against some form of notice served under environmental legislation requiring remedial action or the cessation of activities.
Some examples of provisions relating to appeals to the Scottish Ministers are given below. This list is provided to give a flavour of the types of appeals that can be made - it is not the intention to provide a fully comprehensive list of all such appeal opportunities.
- Sewerage (Scotland) Act 1968
- Section 12 (connections to the public sewerage system)
- Section 31 (trade effluent consents)
- Environmental Protection Act 1990
- Section 15 (integrated pollution control regulation)
- Section 43 (waste management licenses)
- Water Environment (Controlled Activities) (Scotland) Regulations 2005
- Regulation 46 provides for appeals against regulatory decisions under Regulation 8 and 28 (controlled activities authorisations)
- Regulation 28 (enforcement notices)
Examples of typical cases:-
Pollution Prevention and Control (Scotland) Regulations 2000. ( PPC)
Regulation 22 governs appeals to the Scottish Ministers . Operators whose installations are regulated by SEPA can appeal to Scottish Ministers against certain decisions made by SEPA. For example, an operator of a landfill site will be issued a PPC permit by SEPA. The permit will include conditions which require to be complied with in operating the site. If the operator of the landfill site is aggrieved by any or all of the conditions he can appeal to Scottish Ministers.
Part II of the Sewerage (Scotland) Act 1968 .
Any occupier of trade premises has the right to discharge trade effluent into public sewers provided he has the consent of Scottish Water. Scottish Water has the power to refuse consent or give it subject to such conditions as it thinks fit. If Scottish water refuses to give consent or sets unacceptable conditions then the occupier can appeal to Scottish Ministers.
Environmental Appeals to the Scottish Ministers - overview of process
Environmental appeals to Scottish Ministers are currently handled by officials in the Environment Group of the Scottish Executive Environment and Rural Affairs Department.
An overview of the process is given overleaf. It must be remembered that the appeal provisions in legislation vary considerably in terms of timescales, how to appeal and how an appeal should be processed although the same basic principles of openness, fairness and impartiality are applied throughout. Included in many environmental appeals mechanisms are public notice provisions allowing for third parties to become aware of the dispute.
The process of determining environmental appeals to Scottish Ministers is "quasi-judicial", in that the Ministers' decision has legal standing but it does not set a legal precedent for other cases. Every case is determined on its merits within the context of the legislation and the issues raised. Ministers clearly try not to be inconsistent with other similar decisions, however, each decision, in effect, is made "without prejudice".
The determination of appeals is a statutory process. The process for undertaking an appeal can vary depending upon the Act/Regulation and in some cases detailed procedures are set out in the legislation. Where the legislation does not provide for detailed procedures, Scottish Executive officials follow a standardised administrative process which has been developed over time.
Most appeals are handled by written submissions, although appellants and enforcing authorities can request a hearing. If the legislation makes provision for a hearing and one is requested, Scottish Executive officials arrange for it to be administered by the Scottish Executive Inquiry Reporters Unit ( SEIRU) the report on the outcome of the hearing being submitted to Scottish Ministers for a final decision. It is also usually open to Scottish Ministers to hold a hearing on an appeal or issue raised in an appeal.
Once a decision is issued by Scottish Ministers, they have fulfilled their duty ("functus officio") and it is not open for them to revisit their decision even if something is brought to their attention that implies the decision may be incorrect. However, if either of the main parties is aggrieved with a decision by Scottish Ministers they can challenge it through the courts by seeking a Judicial Review of Ministers' actions. The Courts would not reconsider the merits of the case, only whether Ministers acted correctly in accordance with any procedures and took into account all that they should have (Wednesbury Principle). One exception to this general rule is found in The Pollution Prevention and Control (Scotland) Regulations 2000, which give the Enforcing Authority and Appellant a right of appeal to the Sheriff.
Applications to the Scottish Land Court
Introduction
The Scottish Land Court is a Court of law. The Court is based in Edinburgh, but holds hearings throughout Scotland. It has a Chairman, who has the same status as a Court of Session Judge, and three Members of Court with relevant experience and expertise. Further information can be obtained on:- http://www.scottish-land-court.org.uk/index.html
Jurisdiction
The Court came into being in 1912. Its present powers are derived from the Scottish Land Court Act 1993.
The Court's jurisdiction is set firmly within the context of Scottish farming. It has authority to resolve a range of disputes, including:-
- disputes between landlords and tenants, in agriculture and crofting;
- appeals against a notice served by the Scottish Ministers in terms of the Action Programme for Nitrate Vulnerable Zones (Scotland) Regulations 2003; and
- appeals against conditions imposed by, or decisin made by Scottish Natural Heritage in terms of the Nature Conservation (Scotland) Act 2004 (viz - Nature Conservation Orders and Land Management Orders)
Dispute resolution process
The Court's job is to assist in resolving disputes within its jurisdiction. In short, the process involves the Court applying the following procedures:-
- receiving applications from a party (or parties) involved in dispute
- issuing orders guiding and controlling the proceedings
- conducting hearings to take evidence and hear the arguments of the parties to the dispute
- The Court Chairman has the status of a judge of the Court of Session and it is therefore well able to deal with difficult cases and disputes involving questions of law. However, the main work of the Court is carried out by its other three expert Members who are not lawyers and may be regarded, in a sense, as highly skilled arbiters. These Members are assisted by one of two legally qualified Clerks of Court. When a case comes into the Court, the Court decides if it can properly be dealt with by an expert Member (in which case there is a route of appeal to the Full Court), or whether it ought to be determined by the Full Court.
- By tradition, the Court combines a proper judicial approach to resolving disputes with an ease of access to litigants. It is fairly formal when necessary in the interests of justice and fairness, but relatively informal wherever possible.
Statistics
At June 2006 there had been no applications in terms of the Action Programme for Nitrate Vulnerable Zones (Scotland) Regulations 2003 or the Nature Conservation (Scotland) Act 2004.
Appeals to the Sheriff by way of summary application
Another environmental appeal mechanism in Scotland is appeal to the Sheriff. Some examples are given below:-
- The Contaminated Land (Scotland) Regulations 2000 gave legislative effect to Part II of the Environmental Protection Act 1990 - remediation notices may be served by a local authority and there are two routes of appeal against such a notice:- in a case of "significant harm" the appeal is to the Sheriff by way of summary application (In a case of a "Special Site" determined by SEPA the appeal is to the Scottish Ministers).
- The Private Water Supplies (Scotland) Regulations 2006, Regulation 4, provides that a local authority shall determine the relevant person/s who provide the supply, occupy the land on which the supply is obtained or located or exercise power of management or control in relation to the supply. Regulation 5 provides that a person aggrieved by such a determination may appeal to the Sheriff by way of summary application.
- Various bodies have a statutory duty to clear litter (mainly local authorities) under the Environmental Protection Act 1990 anyone who is aggrieved by the defacement of various categories of land by litter or refuse may make a summary application to the sheriff court to have the duty body told to clear up the mess or be "liable on summary conviction to a fine not exceeding level 4 on the standard scale together with a further fine of an amount equal to one-twentieth of that level for each day on which the offence continues after conviction".
- The Pollution Prevention and Control (Scotland) Regulations 2000 Regulation 22 governs appeals to the Scottish Ministers ( e.g. by a person who has been refused the grant of a permit for an installation). Regulation 22 allows that appeals against the Scottish Ministers' decision may be taken to the Sheriff by SEPA or persons referred to in Regulation 22(1) or 22(2), by way of summary application.
The summary application procedure is summarised below.
Summary Application Procedure
Appeals to the Office of the Water Industry Commission for Scotland
This is not a generic appeal model like the earlier examples as it applies to very particular circumstances. However, it is included here to help provide as full an overview as possible of the various mechanisms.
If Scottish Water refuses to connect a potential customer to the public drinking water supply or provide a public sewerage service on the grounds that it is "beyond reasonable cost", the customer may appeal to the Office of the Water Industry Commission for Scotland who will make a determination.
The relevant legislation is :-
- Section1(4) of The Sewerage (Scotland) Act 1968 and Section 6(3) of The Water (Scotland) Act 1980);
- SSI 2006 No. 120, "The Provision of Water and Sewerage Services (Reasonable Cost) (Scotland) Regulations 2006.
The Office of the Water Industry Commission for Scotland is currently preparing a draft interim statement on how they intend dealing with such appeals.
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