Written by David Lintott, Restore Nature Ltd
Contact: info@restorenature.co.uk
Crowdfunder: Save Todrig from Sitka spruce plantation
Read David’s previous blog: Restore Nature’s legal challenge to protect Todrig from Sitka spruce plantations
Failure to assess environmental impacts at Todrig
In Scotland, forestry proposals must go through a “screening” process. This is meant to determine whether a project could have significant environmental effects, in which case a full Environmental Impact Assessmentmust be carried out.
The regulations require Scottish Forestry to consider factors such as the scale, nature and location of the project, as well as its potential impact on landscape character, habitats and species. But how is this assessment actually being done?
You might assume that when deciding whether a forestry scheme could damage a landscape, the authorities would look carefully at the site itself. But until now, that was not the case at Todrig.
Instead, Scottish Forestry used a surprisingly crude calculation. Rather than considering the landscape that would actually be affected, it simply looked at what percentage of the wider Landscape Character Area the scheme represented.
At Todrig in the Scottish Borders, the forestry proposal would have covered a 5 km² upland landscape, largely with Sitka spruce. Yet because this area represents only about 4% of the wider Rolling Moorlands Landscape Character Type – a distinctive landscape of open, rolling hills dominated by heather and grassland – Scottish Forestry concluded the impact would be small. On that basis, it ruled that the scheme was unlikely to have any significant effect on the landscape.
Following our legal challenge, the Court ruled that this approach is unlawful. The regulations require Scottish Forestry to assess whether a proposal could have significant effects on the site itself, not simply calculate what proportion of a wider landscape it represents. This point is crucial.
Our barrister, James Findlay KC, argued that this approach could lead to the incremental loss of entire landscapes, with clearly significant impacts being dismissed simply because each development was considered in isolation.
The Court agreed that the method used by Scottish Forestry failed to properly apply the law. As a result, the ruling should require a fundamentally different approach to assessing landscape impacts in the future. The judgment also found serious failings in the way wildlife impacts were assessed. In particular, Scottish Forestry failed to properly consider the potential impact on the Northern Brown Argus butterfly, a species listed as being of principal importance for biodiversity conservation in Scotland. Evidence before the court indicated that the butterfly and its habitat were likely to be present on the site, yet Scottish Forestry had not adequately investigated this risk before making its decision.
Taking a case to judicial review
As we explained in our previous article for ERCS, Restore Nature Ltd believes this case demonstrates why local people must have a meaningful voice in decisions affecting the landscapes where they live.
In this case, Scottish Forestry failed to publish its screening decision. It only came to light when it was mentioned in the local press four months after the decision had been made. Scottish Forestry later relied on this unpublished decision as evidence that the scheme was unlikely to cause environmental harm.
Had the decision not been successfully challenged, the project could effectively have been declared to have no significant environmental effects before any public consultation had even begun.
But challenging such decisions is not easy. Judicial review cases do not examine whether a decision was right or wrong in substance. Instead, the court must find an error of law in how the decision was made.
The cost of defending nature
The process is also expensive. Initial cost estimates from our solicitors were around £30,000, but this figure doubled after additional court hearings became necessary when Scottish Forestry disclosed further documents about its internal decision-making process four months after responding to Restore Nature’s Freedom of Information request.
They had initially claimed this material had already been disclosed before proceedings began.
Cases like this are difficult to fund. Although the Aarhus costs rules limit the amount a claimant must pay if they lose an environmental case (to £5,000), they also cap the costs that can be recovered if a claimant wins (at £30,000).
As a result, Restore Nature has had to crowdfund the case as it progressed. This highlights the importance of the work being carried out by ERCS, which now has established a specialist law firm to support claimants bringing environmental cases of this kind. One such case already in preparation is a potential judicial review concerning Scottish Forestry’s screening decision for Duchrae Woodland Creation 2, on which ERCS has been instructed.
What happens next?
Although we have won an important ruling in court, the work is not finished.
Scottish Forestry must now make a new and lawful decision about the Todrig proposal. Our aim is to ensure that a full Environmental Impact Assessment is required and that the environmental consequences of this scheme are properly examined.
More broadly, this case may have implications far beyond Todrig. Between 2015 and 2023, Scottish Forestry required Environmental Impact Assessments for just 4 out of 729 woodland creation applications.
In many cases where significant environmental impacts might reasonably be expected, no such assessment has been required. We hope this ruling will help change that. Campaigns like Todrig, Stobo Hope, and the recently lodged challenge concerning Duchrae Woodland Creation could help ensure that Scotland’s landscapes, habitats and species receive the scrutiny they deserve.
But we cannot do this without support.
Please donate what you can to help us continue fighting for proper environmental protection—and share this appeal with others who care about the future of our wild places.
This blog was written by an ERCS supporter and we welcome writers to share their thoughts and engage in debate on all aspects of environmental rights. The views expressed are theirs alone and do not necessarily reflect ERCS’s position. ERCS is not responsible for the accuracy of any information supplied.
Header image: Todrig Farm, Simon Butterworth Photography.
