In Newton Mearns Residents Flood Prevention Group for Cheviot Drive v East Renfrewshire Council  CSIH 70 the Court of Session (Inner House, Extra Division)
held that a motion for a protective expenses order by an unincorporated association which comprised local residents seeking to protect their homes from flood damage was correctly refused where it did not satisfy the requirement of general public importance.
In relation to Aarhus it was said:
“8 There was no dispute before the Lord Ordinary as to the competency of his making an order of the sort sought by the petitioner. However, having summarised the factual background as set out in the petition, the Lord Ordinary, noted that as the petition did not contain a challenge to a decision, act or omission to which the public participation provisions of what is now Directive 2011/92/EU of the European Parliament and Council (the codification of Council Directive 85/337/EEC as amended by Directive 2003/35/EC requiring member states to give effect to the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters) applied, the recently enacted provisions of Chapter 58A of the Rules (*) of the Court of Session were not relevant to this application for a PEO . A different position is taken at statement 7 of the petition but before the Lord Ordinary that was departed from by the petitioner (as is confirmed in the petitioner’s note of argument in this court). It therefore came to be agreed among the parties that the application fell to be determined by reference to what the Lord Ordinary referred to as the “common law criteria”.”
(*) These are the new Scottish costs rule son Aarhus cases.
The PEO was sought in the context of a for judicial review seeking to quash: (i) the grant planning permission for the construction of a number of houses on a greenfield site; and (ii) a decision to confirm as fulfilled a condition concerning drainage arrangements which had been imposed when planning permission was granted.