The case involves the proposed demolition of high-rise towers, each with 26 storeys, in the Maryhill area’s Wyndford district.

Caz Rae, who lived in the vicinity of the Wyndford Estate in Maryhill, sought the reduction of a previous screening opinion by Glasgow City Council that it could demolish two tower blocks without conducting an Environmental Impact Assessment on the basis that it was irrational and predicated on errors in law.

Lord Sandison in the Outer House of the Court of Session determined that the screening opinion had been unlawfully adopted but refused to reduce it on the basis that the error had been minor.

In his decision, Lord Sandison said of the purpose of the 2017 Regulations: “The adoption of a screening opinion as to whether a particular development does or does not require an EIA is, notwithstanding its status as a preliminary administrative decision, an integral part of the process for ensuring that public participation occurs in appropriate cases. However, the language of the Regulations provides criteria for determining whether a development ought to be subject to an EIA which leave considerable room for differences of opinion, and the task of applying the law to the facts of any particular case has in the first instance been confided to the relevant planning authority.”

He continued: “On the related question of whether the council had sufficient information to arrive at an informed judgment that a negative screening opinion could be issued, it requires to be borne in mind that it is in the nature of a screening opinion that a detailed and full assessment of the potential environmental impact of a proposed development is not required. That would follow if and when an EIA was found to be required. Not all uncertainties have to be resolved, nor every aspect of the matter made subject to full and comprehensive examination, before a decision can be made that an EIA is not required.”

On whether the council had made an identifiable error of law, Lord Sandison said: “For reasons that remain unexplained, the council chose – seemingly deliberately – to substitute the wrong for the right criterion, and it must be assumed that that wrong criterion was the one which it applied throughout the preparation of the screening opinion. The fault is thus a pervasive one, capable of affecting the court’s assessment of some if not all of the grounds of complaint already considered as well as representing an independent ground for reduction of the screening opinion.”

However, in considering whether a different conclusion would have been reached had the correct criteria been used, he added: “The defect in the Council’s screening opinion may be regarded as lying at the lesser end of the scale of gravity. If, as I consider, the adoption of the correct legal test would have resulted in no difference to the outcome of the screening decision process, then it follows that no member of the public has been deprived of the guarantees of access to information and participation in decision-making which it is the function of the EIA directive and the 2017 Regulations to safeguard.”

Lord Sandison therefore granted declarator that the decision of October 2023 was predicated on an error of law but refused to reduce the adoption of the screening opinion.

A Wheatley Homes Glasgow spokesperson said: “We note this verdict by the Court of Session which fully supports the earlier screening opinion taken by Glasgow City Council.

“The overwhelming majority of tenants are fully behind our plans to invest £100 million in Wyndford and transform the community for the better, not only for the people who live there today, but for families and generations to come.”

A Glasgow City Council spokesman added: “We are satisfied with the court’s decision, which means the decision not to require an EIA still stands.”

Earlier this year, Wheatley revealed updated plans to transform the Wyndford area of the city. 

The social landlord is increasing its investment in the community to £100 million – and revealed plans to build almost 400 new affordable homes.

The updated proposals will see:

• Wheatley increase its planned investment from £73m to £100m;
• 386 spacious, energy-efficient affordable homes built in Wyndford – 85% of which will be for social rent;
• the new homes made up of over 900 bedrooms to encourage families to the area;
• the construction of a brand-new, two-storey, purpose-built community hub, which will be owned and managed by Glasgow City Council;
• new and improved neighbourhood green spaces, open areas, improved walkways, and cycle paths;
• 500 new bike racks and improved car parking facilities;
• new CCTV, concierge station and controlled-entry systems to reduce anti-social behaviour; and
• a new children’s play park.

A full case review is available on our sister publication Scottish Legal News.