The legal status of “sustainable development” and “public interest”

Some blogs essentially write themselves, albeit with the aid of a bit of copy & paste. This is such a blog.

Yesterday, I blogged on the rather important Court of Session case of Pairc Crofters Limited and Pairc Renewables Limited v the Scottish Ministers. I have now read it a little more carefully and would draw the attention of readers to this remarkable passage, under the heading “Definition of sustainable development and public interest”

[55] …I should first deal with a preliminary objection raised by counsel for the appellants to the effect that the terms sustainable development and public interest are to [sic] vague to have legal force and are therefore, as counsel put it, “not law.”

What should we make of that claim? I cannot recall my exact reaction, but it involved a splutter. The opinion of Lord President Gill continues thus:

[56] In my view, the expression sustainable development is in common parlance in matters relating to the use and development of land. It is an expression that would be readily understood by the legislators, the Ministers and the Land Court. I see no reason why the owner of land that is subject to an application to buy under Part 3 of the Act would be unable to mount an effective defence to the application on this ground.

[57] Likewise, I consider that there is nothing in the submission that the expression “public interest” lacks any legal force. The public interest is a concept that is to be found throughout the statute book. There is no need for a general definition of it. It is for the Land Court and the Ministers to assess the public interest on the facts and circumstances of the case. A general statutory definition of the public interest, if one could be devised, would be unhelpful, in my view. As it is, I consider that section 74(2) (supra) makes it sufficiently clear that in the context of an application under section 73 the assessment of the public interest involves the balancing of the objectives of the application with the interests of any sector of the public which in the opinion of the Ministers would be affected by the exercise of the right to buy.

Well, that is a relief. These terms are not just hollow and irrelevant inclusions in a statute. The argument was tenuous in the first place. Although counsel cannot necessarily be criticised for “flying a kite” on behalf of the landowner, the kite did not even get off the ground. Looking only at sustainable development, which is the less established of the two terms, even it has something of a pedigree in international law (see the UN resources from Brundtland). Further, the Scottish Parliament made a very deliberate decision to not define sustainable development, lest the term be unduly restrained by a contrived definition. Not including a definition does not render a term in a statute “not law”.

So sustainable development and public interest are not meaningless, after all. If you did not appreciate there was even a debate, you do now.

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About basedrones

Bachelor of Laws. Scots lawyer working at the University of Aberdeen. English law qualified. Took far too long to write this bio. Blogs on legal issues, with occasional veering into other purportedly intellectual stuff from time to time. Tweets about legal issues, education, law clinics, fitba, music, rogue cell division and not at all about politics at @MalcolmCombe.
This entry was posted in Land Reform, Property, Sustainable Development and tagged , , , . Bookmark the permalink.

2 Responses to The legal status of “sustainable development” and “public interest”

  1. Pingback: Land Reform – Part 3 – Ruaig an Fhèidh | basedrones

  2. Pingback: RACCE Committee Stage 1 Report on the Land Reform Bill | basedrones

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