The UK is being taken to Luxembourg on the grounds that punitively high legal costs breach the right of environmental groups and residents to challenge planning decisions.
The site at Almondvale in Livingston may be earmarked for council housing but objections have been raised on the grounds the area is important for wildlife.
The issue being explored by the European court is the tradition in Scots and English law that the loser of a civil action pays the costs of both sides, which can be ruinous for residents’ groups or environmentalists.
Last year the UK indicated a willingness to consider “qualified one way cost shifting” – meaning claimants might be asked to pay only their own costs, but the lack of certainty would still pose a for-midable hurdle and will not satis-fy the European Commission.
News that the UK was being referred to the Court of Justice came in a letter from the European Commission to Scottish Labour MEP David Martin, who writes in The Herald today: “Will the UK Government stop obstructing European Union law, which it has already agreed to, and take adequate measures to change its rules to ensure that environmental challenges are not prohibitively expensive, or will it continue to stonewall and defy the law?”
The letter to Mr Martin stated: “With regard to the concerns you have raised about the prohibitive costs of judicial review for local residents to challenge planning decisions, I should inform you that this is a matter which we have decided to refer the United Kingdom to the Court of Justice with regard to the prohibitive cost of judicial review.”
This referral is based on the Aarhus Convention, which links environmental rights to access to justice. The treaty requires challenges to be “fair, equitable, timely and not prohibitively expensive”.
Mr Martin writes: “As with lead in pipes in old buildings in Leith and ‘slopping out’ in Scottish prisons it appears likely that the Government will only abide by the law if it is threatened with the maximum sanction of that law.”
Dr Richard Dixon, director of WWF Scotland, said: “This is excellent news for local communities who want to protect the local and global environment.
“The power to challenge unfair decisions through the courts has been out of reach of most local campaigners but this decision should mean a last-ditch challenge becomes possible.”
He added: “We are eagerly awaiting the results of a legal challenge to the proposed Hunterston power station. This important action was taken by a local birdwatcher but was only possible because of many hours of free time given by the legal team and money raised by campaigners.”
Stan Blackley, chief executive of Friends of the Earth Scotland, said: “We were forced to drop our legal challenge to the M74 back in 2006 because the potential costs of taking the case could literally have bankrupted us.
“The Scottish legal system is significantly behind England and Wales in implementing the Aarhus Convention, so the fact that the UK as a whole has been taken to the European Court of Justice, should act as a wake-up call to the Scottish Government.”
Letters: Page 14