Interpretation of Chapter 2
42Meaning of “public authority”
In this Chapter, “public authority” means a person exercising any function of a public nature that is not—
(a)a function of any of the following persons—
(i)Environmental Standards Scotland,
(ii)a court or tribunal,
(iii)the Scottish Parliament,
(iv)the Parliament of the United Kingdom,
(v)a Minister of the Crown (within the meaning of the Ministers of the Crown Act 1975),
(vi)a body to which paragraph 3 (reserved bodies) of Part III of schedule 5 of the Scotland Act 1998 applies, or
(b)a function in connection with proceedings in the Scottish Parliament or the Parliament of the United Kingdom.
43Meaning of “failing to comply with environmental law”
For the purposes of this Chapter, any reference (however expressed) to a public authority failing (or having failed) to comply with environmental law is a reference to any of the following conduct by the authority—
(a)the authority failing (or having failed) to take proper account of environmental law when exercising its functions,
(b)the authority exercising (or having exercised) its functions in a way that is contrary to, or incompatible with, environmental law,
(c)the authority failing (or having failed) to exercise its functions where the failure is contrary to, or incompatible with, environmental law,
and references to “compliance with environmental law” are to be construed accordingly.
44Meaning of “environmental law” and “effectiveness of environmental law”
(1)In this Chapter, “environmental law” means any legislative provision to the extent that it—
(a)is mainly concerned with environmental protection, and
(b)is not concerned with an excluded matter.
(2)Excluded matters are—
(a)disclosure of, or access to, information,
(b)national defence or civil emergency,
(c)finance or budgets.
(3)In subsection (1), “legislative provision” means—
(a)provision contained in, or in an instrument made under, an Act of the Scottish Parliament, and
(b)provision contained in any other enactment which, if contained in an Act of the Scottish Parliament, would be within the legislative competence of the Parliament.
(4)The Scottish Ministers may by regulations provide that a legislative provision specified in the regulations is, or is not, within the definition of “environmental law” in subsection (1) (and this Chapter applies accordingly).
(5)Regulations under subsection (4) are subject to the affirmative procedure.
(6)Before laying a draft of regulations under subsection (4) before the Scottish Parliament for approval, the Scottish Ministers must consult—
(a)Environmental Standards Scotland, and
(b)such other persons as the Scottish Ministers consider appropriate.
(7)In this Chapter, references to the effectiveness of environmental law are references to the effectiveness of environmental law, or any particular aspect of it—
(a)in achieving its intended effect by reference to its contribution to—
(i)environmental protection, and
(ii)improving the health and wellbeing of Scotland’s people, and achieving sustainable economic growth, so far as consistent with environmental protection, and
(b)in contributing to the implementation of any international obligation of the United Kingdom relating to environmental protection,
and references to “effective environmental law” are to be construed accordingly.
45Meaning of “environmental protection”, “environmental harm” and “the environment”
(1)In this Chapter, “environmental protection” means—
(a)protecting, maintaining, restoring or improving the quality of the environment,
(b)preventing, mitigating, minimising or remedying environmental harm caused by human activities,
(c)monitoring, considering, assessing, recording, reporting on or managing data on anything relating to paragraphs (a) and (b).
(2)In this Chapter, “environmental harm” means—
(a)harm to the health of human beings, animals, plants or any other living organisms,
(b)harm to the quality of the environment, including—
(i)harm to the quality of the environment taken as a whole,
(ii)harm to the quality of air, water or land, and
(iii)other impairment of, or interference with, biodiversity or ecosystems,
(c)offence to the senses of human beings,
(d)damage to property, or
(e)impairment of, or interference with, amenities or other legitimate uses of the environment.
(3)In this Chapter, “the environment”—
(a)means all, or any, of the air, water and land (including the earth’s crust), and “air” includes the air within buildings and the air within other natural or man-made structures above or below ground, and
(b)includes wild animal and plant life and the habitats of wild animal and plant life.
(4)In subsection (1), “human activities”—
(a)means human activities of any kind (whether industrial, commercial or otherwise), and any connected activities, that are capable of causing, or liable to cause, environmental harm, and
(b)includes (with or without other activities) the production, treatment, keeping, depositing or disposal of any substance.
(5)In subsection (3)(b), “animal and plant life” includes any living organisms.
46Interpretation of Chapter 2: general
(1)In this Chapter—
“application for judicial review” means an application to the supervisory jurisdiction of the Court of Session,
“compliance notice” means a notice issued under section 31(1),
“the environment” has the meaning given by section 45(3),
“environmental governance body” means a person on whom an environmental governance function has been conferred,
“environmental governance function” means a function that is similar to a function conferred on Environmental Standards Scotland,
“environmental harm” has the meaning given by section 45(2),
“environmental law”, “effectiveness of environmental law” and “effective environmental law” have the meanings given by section 44, “environmental protection” has the meaning given by section 45(1),
“improvement report” means a report prepared under section 26(1) or (2),
“information notice” means a notice issued under section 24(1),
“international environmental protection legislation” means legislation of countries and territories outwith Scotland (including legislation of other parts of the United Kingdom), and of international organisations (including the EU), that is mainly concerned with environmental protection,
“international obligation of the United Kingdom” includes any obligation that arises or may arise under an international agreement or arrangement to which the United Kingdom is a party,
“Office for Environmental Protection” has the meaning given by section 21 of the Environment Act 2021,
“public authority” has the meaning given by section 42,
“regulatory functions” means—
(a)functions conferred by or under any enactment of—
(i)imposing requirements, restrictions or conditions in relation to an activity,
(ii)setting standards and outcomes in relation to an activity, or
(iii)giving guidance in relation to an activity, or
(b)functions which relate to the securing of compliance with, or enforcement of, requirements, restrictions, conditions, standards, outcomes or guidance which by or under any enactment relate to an activity,
“strategy” means a strategy prepared under section 22(1).
(2)In this Chapter, references (however expressed) to—
(a)a public authority failing to comply with environmental law are to be construed in accordance with section 43,
(b)a public authority failing to make effective environmental law are references to the authority—
(i)failing to exercise any function it has of making, confirming or approving subordinate legislation, or
(ii)failing to exercise that function in such a way,
so as to secure the effectiveness of environmental law.