JUDGMENT
Walton (Appellant) v The Scottish Ministers
(Respondent) (Scotland)
before
Lord Hope, Deputy President
Lord Kerr
Lord Dyson
Lord Reed
Lord Carnwath
JUDGMENT GIVEN ON
17 October 2012
Heard on 9 and 10 July 2012
Appellant Respondent
Aidan O’Neill QC James Mure QC
Chris Pirie Lorna Drummond QC
(Instructed by Patrick
Campbell and Company
Solicitors)
(Instructed by Scottish
Government Legal
Directorate Litigation
Division)
LORD REED
1. In this application under paragraph 2 of Schedule 2 to the Roads (Scotland)
Act 1984 (“the 1984 Act”), Mr Walton challenges the validity of schemes and
orders made by the Scottish Ministers under that Act to allow the construction of a
new road network in the vicinity of Aberdeen. The basis on which the schemes and
orders are challenged, as ultimately argued before this court, is that the Ministers
have failed to comply with the requirements of the Strategic Environmental
Assessment Directive (Directive 2001/42/EC, OJ 2001 L197/30) (“the SEA
Directive”), or in any event with common law requirements of fairness. In the light
of observations made by the Extra Division of the Inner House of the Court of
Session (Walton v Scottish Ministers [2012] CSIH 19), it will also be necessary to
consider questions relating to remedies. These include the question whether, even
if a failure to comply with the directive were established in the present case, Mr
Walton should in any event be denied a remedy; and whether he is entitled to bring
the application, or would have the necessary standing to seek an alternative
remedy.
2. It will be necessary to examine in detail the facts bearing upon these legal
issues. It may however be helpful at the outset to explain the relevant provisions of
the 1984 Act and of the directive.
The Roads (Scotland) Act 1984
3. The 1984 Act distinguishes between two different types of roads authority
with different functions: a distinction which is apparent, in particular, from the
definition of “roads authority” in section 151(1). On the one hand there are local
roads authorities, which are responsible for roads and proposed roads in their area
other than roads for which the Secretary of State or the Ministers are the roads
authority. The local authority for a given area are also the local roads authority for
that area. They have the power to construct new roads, other than special roads
(defined by section 151 as roads provided or to be provided under section 7), in
accordance with section 20.
4. On the other hand there are the Secretary of State and the Ministers. The
Secretary of State is the roads authority as respects functions relating to the matters
reserved by the relevant provisions of the Scotland Act 1998 and exercisable in
relation to trunk roads, special roads or other roads constructed or to be
constructed under section 19 of the 1984 Act. The Ministers are the roads authority
as respects any other functions exercisable in relation to any such roads, as the
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result of the transfer of functions from the Secretary of State effected by section 53
of the Scotland Act. As roads authority, the Ministers have functions under
sections 5 and 7 of the 1984 Act which are relevant to the present case.
5. Section 5(2) provides:
“The Secretary of State shall keep under review the national system
of routes for through traffic in Scotland, and if he is satisfied, after
taking into consideration the requirements of local and national
planning, including the requirements of agriculture and industry, that
it is expedient for the purpose of extending, improving or
reorganising that system either—
(a) that any existing road, or any road proposed to be constructed by
him, should become a trunk road, or
(b) that any trunk road should cease to be a trunk road,
he may by order direct that the road shall become, or as the case may
be shall cease to be, a trunk road as from such date as may be
specified in that regard in the order.”
6. Section 7 provides:
“(3) A roads authority may be authorised by means of a scheme
under this section to provide, along a route prescribed by the scheme,
a special road for the use of traffic of any class so prescribed.”
7. It is also relevant to note a number of other provisions of the 1984 Act.
Section 20A requires the Ministers to carry out an environmental assessment
where they have under consideration the construction of a new road for which they
are the roads authority, and they consider that the project falls within the scope of
the Environmental Assessment Directive (Directive 85/337/EEC, OJ 1985, L
175/40) (“the EIA Directive”). They must, in particular, prepare an environmental
statement and publish notice of it. The notice must state that any person wishing to
make any representations about the project and the environmental statement may
do so, and that the Ministers will take any such representation into account before
deciding whether to proceed with the project (section 20A(5A). Section 139
permits the Ministers to hold an inquiry in connection with any matters as to which
they are authorised to act under the Act.
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8. The procedures for making orders under section 5 are set out in Part I of
Schedule 1 to the Act. They include the publication of the proposed order, an
opportunity for any person to object to the making of the order (paragraph 1), and
the holding of an inquiry in the event that an objection is received from any person
appearing to the Ministers to be affected or from any of a specified group of
persons, such as the relevant local authority (paragraph 5). The Ministers are
required to take into account the report of the person who held the inquiry. Where
an environmental statement has been published, they must also take into
consideration any opinion on that statement or the project expressed by any person
in writing (paragraph 7). Analogous procedures are prescribed by Part II of
Schedule 1 in relation to the making of schemes under section 7.
9. Schedule 2 to the 1984 Act is relevant to the issues in this appeal relating to
remedies. Paragraphs 2 to 4 provide:
“2. If any person aggrieved by the scheme or order desires to
question the validity thereof, or of any provision contained therein,
on the grounds that it is not within the powers of this Act or that any
requirement of this Act or of any regulations made thereunder has
not been complied with in relation to the scheme or order, he may,
within six weeks of–
(a) the date on which the notice required by paragraph 1 above is
first published; or
(b) in a case where a notice under paragraph 1A above is required,
the date on which that notice is first published,
make an application as regards that validity to the Court of Session.
3. On any such application the Court—
(a) may by interim order suspend the operation of the scheme or
order or of any provision contained in it, either generally or in so far
as it affects any property of the applicant, until the final
determination of the proceedings; and
(b) if satisfied that the scheme or order or any provision contained in
it is not within the powers of this Act or that the interests of the
applicant have been substantially prejudiced by failure to comply
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with any such requirement as aforesaid, may quash the scheme or
order or any provision contained in it, either generally or in so far as
it affects the property of the applicant.
4. Subject to paragraph 3 above, a scheme or order to which this
Schedule applies shall not, either before or after it has been made or
confirmed, be questioned in any legal proceedings whatever, and
shall become operative on the date on which the notice required by
paragraph 1 above is first published or on such later date, if any, as
may be specified in the scheme or order.”
The SEA Directive
10. The SEA Directive forms part of a body of EU legislation designed to
provide a high level of protection for the environment, in accordance with article
191 of the Treaty on the Functioning of the European Union and article 37 of the
Charter of Fundamental Rights of the European Union. It is complementary, in
particular, to the EIA Directive. Both directives impose a requirement to carry out
an environmental assessment, but they are different in scope.
11. The EIA Directive was adopted in 1985 and required to be implemented by
July 1988. It has been amended significantly by further directives, including the
Public Participation Directive (Directive 2003/35/EC, OJ 2003 L156/17) (“the
PPD Directive”), which gave effect to the public participation requirements of the
Aarhus Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters. The EIA Directive is
concerned with the assessment of the effects of “projects” on the environment. The
SEA Directive, which was adopted 16 years later, is concerned with the
environmental assessment of “plans and programmes”. Taken together, the
directives ensure that the competent authorities take significant environmental
effects into account both when preparing and adopting plans or programmes, and
when deciding whether to give consent for individual projects.
12. The background to the SEA Directive, and the problem which it was
designed to address, were explained by Advocate General Kokott in her opinion in
Terre Wallone ASBL v Région Wallone and Inter-Environnement Wallonie ASBL v
Région Wallone ((Joined Cases C-105/09 and C-110/09) [2010] I-ECR 5611,
points 31-32:
“The specific objective pursued by the assessment of plans and
programmes is evident from the legislative background: the SEA
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Directive complements the EIA Directive, which is more than ten
years older and concerns the consideration of effects on the
environment when development consent is granted for projects.
The application of the EIA Directive revealed that, at the time of the
assessment of projects, major effects on the environment are already
established on the basis of earlier planning measures (Proposal for a
Council directive on the assessment of the effects of certain plans
and programmes on the environment, COM(96) 511 final, p 6).
Whilst it is true that those effects can thus be examined during the
environmental impact assessment, they cannot be taken fully into
account when development consent is given for the project. It is
therefore appropriate for such effects on the environment to be
examined at the time of preparatory measures and taken into account
in that context.”
13. The Advocate General provided an example (point 33):
“An abstract routing plan, for example, may stipulate that a road is to
be built in a certain corridor. The question whether alternatives
outside that corridor would have less impact on the environment is
therefore possibly not assessed when development consent is
subsequently granted for a specific road-construction project. For
this reason, it should be considered, even as the corridor is being
specified, what effects the restriction of the route will have on the
environment and whether alternatives should be included.”
14. The relationship between the two forms of assessment was also described
by the Commission in its first report on the application of the SEA Directive under
article 12(3) (COM(2009) 469 final, para 4.1):
“The two Directives are to a large extent complementary: the SEA is
‘up-stream’ and identifies the best options at an early planning stage,
and the EIA is ‘down-stream’ and refers to the projects that are
coming through at a later stage. In theory, an overlap of the two
processes is unlikely to occur. However, different areas of potential
overlaps in the application of the two Directives have been
identified.
In particular, the boundaries between what constitutes a plan, a
programme or a project are not always clear, and there may be some
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doubts as to whether the ‘subject’ of the assessment meets the
criteria of either or both of the Directives.”
In relation to that passage, it should be noted that a project need not necessarily be
a “downstream” development of an option identified at an earlier “upstream”
planning stage.
15. The scope of the SEA Directive is defined by article 3. Paragraphs (1) and
(2) provide:
“1. An environmental assessment, in accordance with articles 4 to 9,
shall be carried out for plans and programmes referred to in
paragraphs 2 to 4 which are likely to have significant environmental
effects.
2. Subject to paragraph 3, an environmental assessment shall be
carried out for all plans and programmes,
(a) which are prepared for agriculture, forestry, fisheries, energy,
industry, transport, waste management, water management,
telecommunications, tourism, town and country planning or land use
and which set the framework for future development consent of
projects listed in Annexes I and II to [the EIA Directive] …”
16. The obligation to carry out an SEA arises under article 3(1) in relation to
plans and programmes referred to in article 3(2) to (4). Those provisions are
concerned with plans and programmes “which set the framework for future
development consent of projects”. In relation to article 3(2)(a), the projects listed
in Annex I to the EIA Directive include the construction of motorways, express
roads and other roads with four or more lanes (Annex I, point 7), and therefore
include the road with which these proceedings are concerned.
17. When member states require to determine whether plans or programmes are
likely to have significant environmental effects, they are directed by article 3(5) to
apply the criteria set out in Annex II, the first of which is “the degree to which the
plan or programme sets a framework for projects and other activities, either with
regard to the location, nature, size and operating conditions or by allocating
resources”. It is implicit in that criterion that a framework can be set without the
location, nature or size of projects being determined. As Advocate General Kokott
explained in Terre Wallone (points 64-65):
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“Plans and programmes may, however, influence the development
consent of individual projects in very different ways and, in so
doing, prevent appropriate account from being taken of
environmental effects. Consequently, the SEA Directive is based on
a very broad concept of ‘framework’.
This becomes particularly clear in a criterion taken into account by
the member states when they appraise the likely significance of the
environmental effects of plans or programmes in accordance with
article 3(5): they are to take account of the degree to which the plan
or programme sets a framework for projects and other activities,
either with regard to the location, nature, size and operating
conditions or by allocating resources (first indent of point 1 of
Annex II). The term ‘framework’ must therefore be construed
flexibly. It does not require any conclusive determinations, but also
covers forms of influence that leave room for some discretion.”
18. Article 2 of the directive is headed “Definitions”, and provides:
“For the purposes of this Directive:
(a) ‘plans and programmes’ shall mean plans and programmes,
including those co-financed by the European Community, as well as
any modifications to them:
– which are subject to preparation and/or adoption by an authority at
national, regional or local level or which are prepared by an authority
for adoption, through a legislative procedure by Parliament or
Government, and
– which are required by legislative, regulatory or administrative
provisions.”
19. Although article 2(a) is headed “Definitions”, it does not in fact define the
terms “plan” or “programme”, but qualifies them. For the purposes of the
directive, “plans and programmes” means plans and programmes which fulfil the
requirements set out in the two indents: that is to say, they must be “subject to
preparation and/or adoption by an authority at national, regional or local level or
… prepared by an authority for adoption, through a legislative procedure by
Parliament or Government”, and they must also be “required by legislative,
regulatory or administrative provisions”.
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20. The terms “plan” and “programme” are not further defined. It is however
clear from the case law of the Court of Justice that they are not to be narrowly
construed. As the court stated in Inter-Environnement Bruxelles ASBL, PétitionsPatrimoine ASBL and Atelier de Recherche et d’Action Urbaines ASBL v Région
de Bruxelles-Capitale (Case C-567/10) [2012] CMLR 909, para 37, “the
provisions which delimit the directive’s scope, in particular those setting out the
definitions of the measures envisaged by the directive, must be interpreted
broadly”. The interpretation of the directive, in this respect as in others, has been
based primarily upon its objective rather than upon its literal wording.
21. Adopting therefore a purposive approach, the complementary nature of the
objectives of the SEA and EIA Directives has to be borne in mind. As Advocate
General Kokott said in Terre Wallone (points 29- 30):
“According to Article 1, the objective of the SEA Directive is to
provide for a high level of protection of the environment and to
contribute to the integration of environmental considerations into the
preparation and adoption of plans and programmes by ensuring that
an environmental assessment is carried out of certain plans and
programmes which are likely to have significant effects on the
environment.
The interpretation of the pair of terms ‘plans’ and ‘projects’ should
consequently ensure that measures likely to have significant effects
on the environment undergo an environmental assessment.”
It is also necessary to bear in mind that the directive is intended to be applied in
member states with widely differing arrangements for the organisation of
developments affecting the environment. Its provisions, including terms such as
“plan” and “programme”, have therefore to be interpreted and applied in a manner
which will secure the objective of the directive throughout the EU.
22. In relation to the stipulation in the second indent that plans and programmes
must be required by legislative, regulatory or administrative provisions, it appears
from the judgment of the Court of Justice in Inter-Environnement Bruxelles that
that requirement is not to be understood as excluding from the scope of the
directive plans or programmes whose adoption is not compulsory. The court noted
at para 29 that such an interpretation would exclude from the scope of the directive
the plans and programmes concerning the development of land which were
adopted in a number of member states. Accordingly, as the court stated at para 31,
“plans and programmes whose adoption is regulated by national legislative or
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regulatory provisions, which determine the competent authorities for adopting
them and the procedure for preparing them, must be regarded as ‘required’”.
23. The concept of “modification” was also considered in Inter-Environnement
Bruxelles, where one of the issues was whether the repeal of a plan or programme
fell within that concept. In holding that in principle it did, the court noted that such
a measure necessarily entailed a change in the legal reference framework – that is
to say, the framework for development consent of projects – and might therefore be
likely to have significant effects on the environment (paras 38-40).
24. A passage in the Commission’s guidance document, Implementation of
Directive 2001/42 on the Assessment of the Effects of Certain Plans and
Programmes on the Environment (2003) (para 3.9) is also helpful:
“It is important to distinguish between modifications to plans and
programmes, and modifications to individual projects, envisaged
under the plan or programme. In the second case, (where individual
projects are modified after the adoption of the plan or programme), it
is not [the SEA Directive] but other appropriate legislation which
would apply. An example could be a plan for road and rail
development, including a long list of projects, adopted after SEA. If,
in implementing the plan or programme, a modification were
proposed to one of its constituent projects and the modification was
likely to have significant environmental effects, an environmental
assessment should be made in accordance with the appropriate legal
provisions (for example, the Habitats Directive, and/or EIA
Directive).”
25. In terms of paragraph 1 of article 4 of the directive, the environmental
assessment referred to in article 3 “shall be carried out during the preparation of a
plan or programme and before its adoption or submission to the legislative
procedure.” Paragraph 3 is designed to avoid the duplication of assessments, and
provides:
“Where plans and programmes form part of a hierarchy, member
states shall, with a view to avoiding duplication of the assessment,
take into account the fact that the assessment will be carried out, in
accordance with this directive, at different levels of the hierarchy.
For the purpose of, inter alia, avoiding duplication of assessment,
member states shall apply article 5(2) and (3).”
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26. Article 5 requires the preparation of an environmental report. Article 6
requires that the draft plan or programme and the environmental report must be the
subject of public consultation. For this purpose, member states have to identify the
public, “including the public affected or likely to be affected by, or having an
interest in, the decision-making subject to this directive, including relevant nongovernmental organisations, such as those promoting environmental protection and
other organisations concerned” (article 5(4)). Article 8 requires that “the
environmental report prepared pursuant to article 5 [and] the opinions expressed
pursuant to article 6 … shall be taken into account during the preparation of the
plan or programme and before its adoption or submission to the legislative
procedure.”
27. Article 11 concerns the relationship between the directive and other EU
legislation, and provides in particular:
“1. An environmental assessment carried out under this directive
shall be without prejudice to any requirements under [the EIA
Directive] and to any other Community law requirements.
2. For plans and programmes for which the obligation to carry out
assessments of the effects on the environment arises simultaneously
from this directive and other Community legislation, member states
may provide for coordinated or joint procedures fulfilling the
requirements of the relevant Community legislation in order, inter
alia, to avoid duplication of assessment.”
28. As the Court of Justice explained in Genovaitė Valčiukienė and Others v
Pakruojo rajono savivaldybė and Others (Case C-295/10) [2012] Env LR 283,
paras 57-60, it follows from article 11(1) that an assessment under the EIA
Directive (an “EIA”) cannot dispense with the obligation to carry out an SEA
where required by the SEA Directive, and is additional to any such assessment. At
the same time, the court has inferred from article 11(2) that, where an EIA has
been carried out under a co-ordinated or joint procedure, it may meet all the
requirements of the SEA Directive; and, in that eventuality, there is no obligation
to carry out a further assessment under the latter directive (Valčiukienė, paras 62-
63). If on the other hand the two assessments differ in their scope or content, then a
second assessment is appropriate.
29. In terms of paragraph 1 of article 13, member states were required to
transpose the directive before 21 July 2004. In relation to transitional
arrangements, paragraph 3 provides:
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“3. The obligation referred to in Article 4(1) shall apply to the plans
and programmes of which the first formal preparatory act is
subsequent to the date referred to in paragraph 1. Plans and
programmes of which the first formal preparatory act is before that
date and which are adopted or submitted to the legislative procedure
more than 24 months thereafter, shall be made subject to the
obligation referred to in Article 4(1) unless Member States decide on
a case by case basis that this is not feasible and inform the public of
their decision.”
The implication is that article 4(1) does not apply to plans and programmes which
were adopted or submitted to legislative procedure prior to 21 July 2004.
30. The directive has been transposed into domestic law. It is however common
ground that the appellant is entitled to rely upon the terms of the directive itself. I
need not therefore refer to the domestic law in detail.
The factual background
31. Proposals for a “western peripheral route” around Aberdeen (referred to in
the documents before the court as the “WPR” or “AWPR”), linking the A90 trunk
road to the north and south of the city to the A96 to the west, have been in
existence since the 1950s. In 1996 Grampian Regional Council, which was the
local roads authority at the time, decided on a “corridor” for the part of the route
between the A96 and the A90 to the south of the city. That corridor crossed the
river Dee at Murtle of Camphill and joined the A90 at Charleston, just to the south
of Aberdeen. Following the reorganisation of local government, the successor local
roads authorities, Aberdeen City Council and Aberdeenshire Council, endorsed the
choice of the Murtle corridor.
32. All local authorities were invited to prepare local transport strategies and
submit them to the Ministers for approval during 2000. The two councils prepared
such strategies, working in collaboration, and adopted them in December 2000.
Each document set out a number of objectives and a package of projects designed
to realise them. One of the projects discussed was the WPR.
33. On 1 November 2001 a non-statutory regional transport partnership known
as the North East Scotland Transport Partnership (NESTRANS) was established
with support from the Ministers. Its remit was to develop a regional transport
strategy for the north east of Scotland in accordance with guidance (the Scottish
Transport Appraisal Guidance or “STAG”) which had been issued earlier that year.
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The partnership was between Aberdeen City Council, Aberdeenshire Council,
Scottish Enterprise (a public body established under the Enterprise and New
Towns (Scotland) Act 1990), and Aberdeen and Grampian Chamber of Commerce.
34. The regional transport strategy developed for the period to 2011 was
described in NESTRANS’ report, Delivering a Modern Transport System for
North East Scotland, published in March 2003. It appears from the report that the
strategy, described as the Modern Transport System or MTS, comprised the local
transport strategies adopted by the two local authorities in 2000, which
NESTRANS had subsequently assessed in accordance with the Ministers’
requirements.
35. Numerous schemes were described and costed in the report. They included
the WPR, which was shown as a road around the periphery of Aberdeen (p 15). Its
purpose was defined as follows (p 14):
“The key roles of the WPR are to enable through-traffic to by-pass
Aberdeen, which in turn allows for prioritisation for buses, cycles
and pedestrians within the urban area. It also improves peripheral
movements around the City, improving access to Park & Ride sites
and relieving heavily-used, unsuitable rural routes. It will improve
accessibility to existing and planned employment locations and open
up possibilities for future land release. Finally, it will transform
accessibility of freight and business service movements to and from
the north and west of Aberdeen.”
The report proceeded on the basis that the design and construction of the WPR
would be undertaken by the local roads authorities, subject to the continued
provision by the Ministers of the necessary funding.
36. On 19 March 2003 the Minister for Transport announced that the WPR
would be promoted by the Ministers as a trunk road.
37. In December 2004, in the face of a campaign against the routing of the
WPR along part of the Murtle corridor (“the Camphill issue”), the Minister for
Transport instructed that work on that corridor should be reviewed and that four
other options, previously discarded, should be re-examined. One of those options,
described as the Peterculter/Stonehaven route, crossed the Dee near Peterculter and
then ran in a southerly direction to join the A90 at Stonehaven. Another option,
described as the Milltimber Brae route, crossed the Dee between Murtle of
Camphill and Peterculter, and then ran eastwards to join the eastern section of the
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Murtle corridor. Public consultation on the five options was undertaken in the
spring of 2005.
38. Prior to taking a final decision, the Minister for Transport commissioned a
report comparing the Murtle and Milltimber Brae options with a hybrid option
which combined the Milltimber Brae route with an A90 relief road to Stonehaven.
On 17 November 2005 the Minister was advised that the hybrid option offered
many attractions, particularly as a means of anticipating a future need to increase
the capacity of the A90 between Stonehaven and Aberdeen, at significant cost.
39. On 1 December 2005 the Minister announced that the route would combine
the Milltimber Brae option with part of the Peterculter/Stonehaven option: in other
words, the hybrid option. The route differed from the options which had been
considered in the earlier consultation exercise, in that it broadly comprised the
whole of one option and part of another – that is to say, the whole of the
Milltimber Brae option, and the part of the Peterculter/Stonehaven option to the
south of the Dee. The length of new road, and the environmental and other costs,
would therefore be greater than for any of the options considered individually.
40. The thinking behind the Minister’s decision was explained in a minute
which he sent to the First Minister on 18 November 2005. One factor was the
Camphill issue. The other, he explained, was that it was necessary to provide a
new trunk road connecting Stonehaven to the WPR as previously envisaged – the
Fastlink, as it became known – in order to relieve growing congestion on the A90
between Stonehaven and Aberdeen and anticipate the need to increase the capacity
of that road.
41. The Minister’s thinking was also explained in a report prepared by
Transport Scotland (an executive agency of the Ministers) in November 2006
(“Aberdeen Western Peripheral Route Project Development 2005-2006 –
Consolidation Assessment Report”), which was made available to the public. It
stated that the scheme inherited from the local authorities did not reflect
completely the strategic objectives of the trunk road network. The inclusion of the
Fastlink improved the overall efficiency of the scheme, allowing long distance
strategic traffic to get round the city more quickly and reducing traffic using the
busiest stretch of the A90 between Stonehaven and Aberdeen. Maintaining the
existing A90 south of Aberdeen and keeping traffic moving was, it was said,
becoming increasingly difficult.
42. Work was then undertaken to identify the preferred line within the corridor
which the Minister had announced. On 2 May 2006 the preferred line was
announced. Further work was then carried out to assess the preferred route. The
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WPR was subsequently reflected in a number of transport strategies and
development plans.
43. On 14 December 2006 draft special road schemes, under section 7 of the
1984 Act, and draft trunk road and other orders, under section 5 and other
provisions, were published together with an EIA prepared under section 20A of the
1984 Act. In relation to the reasons for choosing the Fastlink, the EIA referred to
the November 2006 report by Transport Scotland. During September and October
2007 new draft schemes and orders were published, some of which were in
substantially the same terms as before and others of which were additional to those
previously published. The EIA was also withdrawn and replaced by a new EIA
reflecting additional work. All objections to the 2006 draft schemes and orders
were carried forward and treated as objections to the 2007 versions. A further draft
order was subsequently published in May 2008.
44. About 10,000 objections were made. They included a letter of objection
dated 5 February 2007, written by Mr Walton as chairman of Road Sense, a local
organisation opposed to the WPR. Amongst other matters raised, it was contended
that there was no demonstrable need for the Fastlink and that there had been no
public consultation on the route. Mr Walton also submitted a personal letter of
objection, which appears to have been in similar terms. A subsequent email
reiterated some of Mr Walton’s earlier objections. A further email containing
objections by Road Sense was also submitted by Mr Walton.
45. Transport Scotland responded to Mr Walton’s letter of objection, addressing
each of the points which he had made. In relation to the need for the Fastlink, it
observed that keeping traffic moving on the A90 between Stonehaven and
Aberdeen was becoming increasingly difficult, as was demonstrated by the
disruption and delays caused by recent roadworks. Online widening would be
disruptive to traffic and would require extensive and complex traffic management
arrangements and significant land and property purchases. Mr Walton’s attention
was also drawn to the November 2006 report. In relation to consultation on the
route, it was observed that the Fastlink corridor followed one of the routes which
had been the subject of consultation in 2005, and that the procedure consequent
upon the publication of the draft schemes and orders would include further
consultation on the route.
46. On 12 October 2007 the Minister announced that a public local inquiry
would be held under section 139 of the 1984 Act to consider objections to the
scheme. The scope of the inquiry was later extended to include draft compulsory
purchase orders made in connection with the scheme.
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47. On 17 April 2008 the Ministers announced that they had appointed
reporters to conduct the inquiry. The announcement made clear the limited scope
of the inquiry:
“Scottish Ministers, having taken a policy decision to construct a
special road to the west of Aberdeen (known as the Aberdeen
Western Peripheral Route) including a new carriageway to
Stonehaven (known as Fastlink), have appointed [the reporters] to
hold a public local inquiry and to report with respect to objections to
the associated schemes and orders…
Having accepted the need in principle for the road, Scottish
Ministers do not wish to be advised on the justification for the
principle of the special road scheme in economic, policy or strategy
terms. Scottish Ministers consider that strategies and policies
referring to the special road scheme are only relevant to the inquiry
insofar as these set the context for the Aberdeen Western Peripheral
Route.
Scottish Ministers have directed that they only wish to be advised on
the technical aspects of the route choice including the environmental
statement published in connection with the special road scheme and
any opinions expressed thereon. Given the assessment approach
taken in the environmental statement, Scottish Ministers wish to be
advised on the technical and environmental issues associated with
the special road scheme together with its individual components.”
48. The limited scope of the inquiry was reflected in the approach adopted by
the reporters. Following a pre-enquiry meeting, they issued a note dated 22 May
2008 stating that they did not intend to permit the presentation of evidence or
questioning on the need for the scheme. They added that the inquiry was into the
scheme proposed by the Ministers and could not turn itself into an inquiry into a
series of assumed alternative proposals.
49. The inquiry proceeded between 9 September 2008 and 18 February 2009.
Road Sense was represented by counsel. A written statement explained that Road
Sense had been formed in January 2006 to oppose the proposed WPR and to
promote the full and proper evaluation of alternatives. It consisted of private
individuals drawn mainly from the settlements situated along and close to the
chosen route. It had held public meetings with attendances ranging from 300 to
1,200 people. One of the contentions advanced in the written statement was that
the Ministers had failed to comply with the requirements of the SEA Directive.
Page 16
Road Sense presented evidence to the inquiry, including oral evidence given by Mr
Walton. In their closing submissions, counsel for Road Sense confined themselves
to matters falling within the remit of the reporters, but also submitted that the
terms of that remit had prevented the inquiry from carrying out a proper
assessment of the proposals.
50. The report submitted by the reporters, dated 30 June 2009, reflected their
remit. They observed in the preamble to the report that a large number of objectors
had questioned the need for the scheme in general, or for parts of it, notably the
Fastlink. Given their remit, they had not included these matters in the report.
51. On 21 December 2009 the Ministers issued their decision to make the
schemes and orders as had been proposed, subject to detailed modifications.
Before doing so, they were obliged to take into account all representations made
timeously about the project and the EIA, in accordance with section 20A(5A) of
the 1984 Act and the corresponding provisions of paragraphs 7 and 13 of Schedule
1. That obligation extended to representations which fell outside the remit of the
inquiry, such as Mr Walton’s representations questioning the need for the Fastlink.
The decision letter stated that the Ministers had considered all the objections which
were made and not withdrawn, and all of the evidence presented to the inquiry.
52. The schemes and orders were made on 14 January 2010 and laid before the
Scottish Parliament the following day. They were approved by resolution of the
Parliament on 3 March 2010. The present application was then made by Road
Sense, and by Mr Walton as an individual. In the event, the application so far as
presented by Road Sense was abandoned after the Ministers questioned whether
the bringing of the application had been duly authorised. The application then
proceeded solely at the instance of Mr Walton.
53. Before the Lord Ordinary, the schemes and orders were challenged on a
wide variety of grounds, including procedural unfairness in respect of the limited
scope of the inquiry, and a failure to comply with requirements of EU and
domestic law relating to the protection of the Dee Special Area of Conservation
and of several protected species. It was also contended that there had been a failure
to comply with the EIA Directive as amended by the PPD Directive. Although the
SEA Directive was touched upon, it does not appear to have been argued at that
stage that there had been a failure to comply with its requirements. The Lord
Ordinary rejected the appellant’s submissions (Walton v Scottish Ministers [2011]
CSOH 131; 2011 SCLR 686).
54. Before the Inner House, it was again argued that there had been a failure to
comply with the EIA Directive, with the common law requirements of a fair
Page 17
procedure, and with the EU and domestic law protecting habitats and species. In
addition it was argued that there had been a failure to comply with the SEA
Directive in respect of the Fastlink component of the scheme. Their Lordships of
the Extra Division rejected these submissions and adopted the reasoning of the
Lord Ordinary. The Extra Division also raised the question whether Mr Walton
was in any event a “person aggrieved” by the schemes and orders within the
meaning of paragraph 2 of Schedule 2 to the 1984 Act: a question which had not
been raised by the Ministers. Their Lordships considered that he had failed to
demonstrate that he was such a person. They also accepted the Ministers’
submission that he had failed to demonstrate that his interests had been
“substantially prejudiced”, within the meaning of paragraph 3 of Schedule 2, by
any failure to comply with any requirement of the Act. On that basis, they
concluded that, even if Mr Walton’s challenge to the validity of the schemes and
orders had been well founded, the court would not have quashed them (Walton v
Scottish Ministers [2012] CSIH 19).
55. There are three schemes and eleven orders in issue. Each of the schemes is
a special roads scheme made under sections 7 and 10(1) of the 1984 Act, in terms
of which the Ministers are authorised to provide a special road which will become
a trunk road on the date when the scheme comes into force. Each of the schemes
relates to a different section of the route. Of the eleven orders, three are trunk road
orders made under section 5(2) of the Act, in terms of which specified lengths of
road which the Ministers propose to construct will become trunk roads on the dates
when the orders come into force. Each of these orders again relates to a different
section of the route. The remaining orders authorise measures which are ancillary
to the schemes and the trunk road orders, such as the construction of side roads,
the stopping up of existing lengths of road, and the detrunking of existing lengths
of road.
56. Against this background, Mr Walton’s primary contention is that the
Fastlink element of the scheme was adopted without the public consultation
required by the SEA Directive. He therefore seeks the quashing of the schemes and
orders only in so far as they concern the Fastlink. The Ministers maintain that there
has been no breach of the directive; that, if there has been, the court should in any
event decline to quash the schemes and orders; but that, if the schemes or orders
are to be quashed to any extent, they must then fall in their entirety, as the scheme
and orders are so integrated with one another that they must stand or fall as a
whole.
Issues arising in relation to the SEA Directive
57. The argument advanced on behalf of Mr Walton proceeds in a number of
steps. The first proposition is that the regional transport strategy adopted by
Page 18
NESTRANS – the MTS – was a plan or programme within the meaning of article
2(a) of the SEA Directive. The second proposition is that the decision to construct
the Fastlink, announced by the Minister on 1 December 2005 and subsequently
implemented by the orders under challenge, was a modification to that plan or
programme: the MTS was modified by the addition of a new objective, namely the
relief of congestion on the A90 between Stonehaven and Aberdeen. If so, that
decision was therefore itself a plan or programme within the meaning of article
2(a) and, since that plan or programme was adopted after 21 July 2004, it was
subject to the requirements of the directive. The final proposition is that there was
a failure to comply with those requirements: the announcement was not preceded
by any consultation on the question whether there should be a Fastlink or not, and
that question was not addressed in the subsequent procedures as required by the
SEA Directive. Mr Walton’s written case also founded upon the Public Access to
Environmental Information Directive (Directive 2003/4/EC, OJ 2003 L41/26) and
the PPD Directive. In the event however those contentions were not pursued.
58. The Ministers on the other hand contend in the first place that the MTS was
not a plan or programme within the meaning of article 2 of the directive, since (a)
the directive does not apply to plans and programmes of which the first formal
preparatory act was prior to 21 July 2004 (by virtue of article 13(3)), and (b) the
MTS was not prepared for adoption through a legislative procedure or required by
legislative, regulatory or administrative provisions. In that respect, reliance was
placed upon the fact that NESTRANS was a non-statutory partnership: it was
accepted that if the MTS had been prepared by a statutory body, at a time when the
SEA Directive was in force, an SEA would have been required. Secondly, they
contend that in any event the decision to construct the Fastlink was not a
modification of any such plan or programme but rather an aspect of the
implementation of an element of the MTS at project level. Thirdly, they contend
that the requirements of the directive were in any event fulfilled: the need in
principle for the WPR was consulted upon at the plan or programme level as an
element of the MTS, and public consultation took place after 2005 upon the
Fastlink, as part of the WPR project, in accordance with the EIA Directive.
Discussion
59. In the present case, the WPR was subject to an EIA; and there is no longer
any complaint that that assessment failed to meet the requirements of the EIA
Directive. The question whether there also required to be an SEA depends upon
whether the decision to construct the Fastlink as part of the WPR was a
modification of a “plan” or “programme” as defined in article 2(a) of the SEA
Directive, and was therefore itself such a plan or programme; and, if so, whether it
set the framework for future development consent of a project listed in article
3(2)(a) (there being no dispute that the WPR is such a project). The reasoning of
the Court of Justice and the Advocate General in such recent cases as Terre
Page 19
Wallone ASBL v Région Wallone and Inter-Environnement Wallonie ASBL v
Région Wallone ((Joined Cases C-105/09 and C-110/09) [2010] I-ECR 5611 and
Inter-Environnement Bruxelles ASBL, Pétitions-Patrimoine ASBL and Atelier de
Recherche et d’Action Urbaines ASBL v Région de Bruxelles-Capitale (Case C567/10) [2012] CMLR 909 suggests that these questions are to some extent interrelated.
60. In determining whether the Fastlink decision was a modification of a “plan”
or “programme” as defined in article 2(a), the first question is whether, as Mr
Walton contends, the MTS (or the local transport strategies which it comprised)
was a plan or programme within the meaning of that provision.
61. It might be argued with some force that none of these documents has been
shown to have been “required by legislative, regulatory or administrative
measures” as stipulated by the second indent of article 2(a), even according the
term “required” the width of meaning given to it in Inter-Environnement Bruxelles
at para 31. It might also be argued that NESTRANS, at least, was not an
“authority” within the meaning of the first indent, since it was established
voluntarily and did not exercise any statutory functions. On the other hand, it
might be argued that the documents “set the framework for future development
consent of projects”, as explained by Advocate General Kokott in her opinion in
Terre Wallone at points 64-65, and were therefore likely to have significant effects
on the environment. In those circumstances, it might be argued that a purposive
interpretation of the directive would bring the documents within its scope.
62. For reasons which I shall explain, it does not appear to me to be necessary
to reach a concluded view on these questions. It is sufficient to say that it appears
to me to be arguable that the MTS, or the local transport strategies which formed
its constituent parts, formed a plan or programme within the meaning of the
directive. The question whether the decision to construct the Fastlink constituted a
modification to a plan or programme can be considered on the hypothesis that the
MTS (or its constituent documents) comprised such a plan or programme.
63. I should add that I am unable to accept the Ministers’ contention that the
MTS was not a plan or programme because its first formal preparatory act was
prior to 21 July 2004. Article 13(3) defines the temporal scope of application of
the directive: not what constitutes a plan or programme. It is based on the premise
that there were plans and programmes of which the first formal preparatory act
was before 21 July 2004: see the second sentence. The fact that article 4(1) does
not apply to a plan or programme of which the first formal preparatory act was
before that date, by virtue of article 13(3), does not therefore deprive such a plan
or programme of its character as a plan or programme.
Page 20
64. Proceeding on the hypothesis that the MTS (or its constituent documents)
constituted a plan or programme, the next issue which requires to be considered is
whether the Fastlink constituted a modification to that plan or programme within
the meaning of article 2(a). In my view it did not.
65. As I have explained, the MTS proposed that the local roads authorities
should construct a WPR which would, on completion, become part of the trunk
road network. In March 2003 the Ministers took over responsibility for designing
and constructing the WPR, as the authority responsible for trunk roads. In doing
so, the Ministers assumed responsibility for a specific development. In the
terminology of the EIA and SEA Directives, that development could aptly be
described as a “project”, defined in article 1 of the EIA Directive as meaning, in
the first place, “the execution of construction works or of other installation or
schemes”. It could not readily be regarded as a plan or programme subject to the
SEA Directive (assuming that to have been temporally applicable): the Ministers
did not assume responsibility for the preparation of a document setting the
framework for future development consent of projects.
66. The subsequent decision to enlarge the project, so as to provide a trunk road
connection between Stonehaven and the WPR as previously envisaged, was taken
by the Ministers primarily in order to relieve congestion on the A90 and anticipate
the need to increase the capacity of that road. In taking that decision, the Ministers
modified a project: they did not modify the legal or administrative framework
which had been set for future development consent of projects. It is therefore not
the SEA Directive which would apply, but other EU legislation such as the EIA
Directive, as the Commission explained in its guidance document, Implementation
of Directive 2001/42 on the Assessment of the Effects of Certain Plans and
Programmes on the Environment (2003), para 3.9.
67. My conclusion that the decision to construct the Fastlink was not a
modification of the MTS therefore reflects, in the first place, the fact that the
decision was taken by the Ministers in the course of executing a specific project
and related solely to that project. They did not take the decision in the exercise of
any power to modify the MTS or otherwise set a legal or administrative framework
for future development consent of projects.
68. Furthermore, there were no national legislative or regulatory provisions,
such as the Court of Justice envisaged in Inter-Environnement Bruxelles ASBL,
Pétitions-Patrimoine ASBL and Atelier de Recherche et d’Action Urbaines ASBL v
Région de Bruxelles-Capitale (Case C-567/10) [2012] 2 CMLR 909, para 31,
requiring the development in the Ministers’ thinking about the project to be
implemented by means of the formal adoption of a plan or programme, or the
modification of such a document. Under domestic law, the Ministers’ decision was
Page 21
implemented in accordance with the procedures laid down for specific road
projects in the 1984 Act.
69. In addition, the conclusion that the decision to construct the Fastlink does
not fall within the scope of the SEA Directive appears to me to be consistent with a
purposive interpretation of that directive. In Inter-Environnement Bruxelles, the
Court of Justice concluded that the repeal of a plan or programme should in
principle be regarded as a modification, within the meaning of the directive,
because it changed the framework for future development consent of projects and
might therefore be likely to have significant effects on the environment. As I have
explained, the decision to construct the Fastlink did not alter the framework for
future development consent of projects, but altered a specific project which
continued to require development consent. The effects of the Fastlink on the
environment were capable of being fully assessed in accordance with other
applicable EU legislation, including the EIA Directive.
70. Given my conclusion that the decision to construct the Fastlink was not a
modification of a plan or programme within the meaning of the SEA Directive, it
is unnecessary to reach a concluded decision as to whether the MTS was in fact
such a plan or programme.
71. Neither party requested the court to make a preliminary reference to the
Court of Justice. The question whether the decision to construct the Fastlink was a
“modification” appears to me to turn upon the application to the facts of this case
of principles established in the recent case law of the Court of Justice. In these
circumstances, a reference does not appear to me to be necessary.
Common law fairness
72. Mr Walton also contended in his written case that common law principles
of fairness in any event required that the remit of the public local inquiry should
include the economic, policy or strategic justification for the Fastlink. That was
said to follow from the decision in Bushell v Secretary of State for the
Environment [1981] AC 75. That case was however concerned with the procedure
which had to be followed at an inquiry in order for it fairly to fulfil its remit: as
Lord Diplock observed (p 95), what is a fair procedure to be adopted at a particular
inquiry will depend upon the nature of its subject matter. The complaint in the
present case concerns the prior question of the subject matter of the inquiry.
73. The 1984 Act lays down detailed provisions governing the consideration of
representations and the holding of inquiries. The Ministers are bound to take
Page 22
timeously submitted representations into account, whether or not there has been an
inquiry: section 20A(5A), and paragraphs 7 and 13 of Schedule 1. They have the
power to hold an inquiry under section 139, and are under a duty to hold an inquiry
if an objection is made to an order or scheme by any person on whom a copy of the
relevant notice is required to be served, or any other person appearing to them to
be affected: paragraphs 5 and 11 of Schedule 1. Mr Walton was not a person on
whom a copy of the notice required to be served. Nothing before the court
indicates that he was regarded as a person affected. It has not been suggested that
the Ministers were statutorily obliged to hold an inquiry into his objections. It has
not been suggested that he had any legitimate expectation that the remit of the
inquiry would encompass the economic, policy or strategic justification for the
Fastlink. In those circumstances, there is no material before the court which
suggests, let alone establishes, that the Ministers were bound as a matter of
fairness to include those matters within the remit of the inquiry.
Remedies
74. In the opinion of the Extra Division, delivered by Lord Clarke, a number of
observations were made about matters relating to remedies. First, it had been
argued on behalf of the Ministers that, even if Mr Walton’s contentions were
accepted, the court should exercise its discretion under paragraph 3 of Schedule 2
to the 1984 Act to decline to grant him a remedy. The court accepted that
submission, stating (para 40) that it would have been quite inappropriate that the
project should be stopped from proceeding “by an individual in the position of this
reclaimer”. In that regard, the court observed that it was not contended that the
schemes and orders would substantially prejudice his interests or affect his
property (para 39).
75. Secondly, the court questioned whether Mr Walton was “a person
aggrieved” within the meaning of paragraph 2 of Schedule 2. Their Lordships
noted that Mr Walton did not claim that his interests would be substantially
prejudiced (the court’s emphasis) or that his property would be affected. Although
his house was close to the route of the WPR, it was at some distance from the
Fastlink. The court cited Ealing Corporation v Jones [1959] 1 QB 384, 392 where
Donovan J said that the word “grievance” connoted some legal grievance. The
court also cited the judgment of Lockhart J in Right to Life Association (NSW) Inc
v Secretary, Department of Human Services and Health (1995) 128 ALR 238, 251-
252, a decision of the Federal Court of Australia, where it was said that, in order to
be a person aggrieved, the applicant’s interest must be above that of an ordinary
member of the public. The court observed that, although Mr Walton had opposed
the project from its inception, he was no different in that respect from someone
who lived many hundreds of miles from the proposed route but had on occasions
to travel to Aberdeen (para 37).
Page 23
76. The court added that, even if the test were the same as that of standing to
bring an application for judicial review, as explained in AXA General Insurance
Ltd and others v HM Advocate and others [2011] UKSC 46; [2012] 1 AC 868;
2011 SLT 1061, it would find it difficult to consider that Mr Walton possessed
sufficient interest to clothe him with rights under paragraph 2 (para 38).
Discretion
77. Before this court, the Ministers accepted that, if there had been a substantial
failure to accord Mr Walton proper participation as required under EU law, then
the court should not withhold a remedy, at least if it were satisfied that he was “a
person aggrieved” in respect of the particular breach found. It would be
inappropriate in these circumstances to embark upon an elaborate discussion. It is
sufficient to say that I would wish to reserve my opinion as to the correctness of
the approach adopted by the Extra Division. In my opinion the matter requires
fuller consideration.
78. That consideration might involve a number of inter-related issues. One is
whether a failure to comply with the SEA Directive falls within the scope of
paragraph 2 of Schedule 2 to the 1984 Act at all; and, if so, whether it falls under
the first or the second of the grounds upon which a scheme or order can be
challenged, as specified in that paragraph. They are “that it is not within the
powers of this Act or that any requirements of this Act or of any regulations made
thereunder have not been complied with in relation to the scheme or order”. It is
only in relation to the second ground that it is necessary under paragraph 3 to
demonstrate “substantial prejudice”.
79. There is no requirement in the 1984 Act, or in any regulations made under
that Act, that an SEA should be carried out: the provisions in the Act which are
concerned with environmental assessment appear to have been designed to comply
with the EIA Directive, presumably on the basis that the construction of a road is a
project (the term employed in section 20A and in paragraphs 7 and 13 of Schedule
1), rather than a plan or programme. In domestic law, the obligation to carry out an
SEA arises under the Environmental Assessment (Scotland) Act 2005 (“the 2005
Act”), section 12 of which prohibits the adoption of a qualifying plan or
programme, or its submission to a legislative procedure for the purposes of its
adoption, unless the requirements of the Act have been met. The adoption of a plan
or programme in breach of the requirements of the 2005 Act could in principle be
challenged by means of an application for judicial review. In relation to a local
roads authority, there would not appear to be any scope for basing an application
under paragraph 2 of Schedule 2 to the 1984 Act upon a failure to comply with the
SEA Directive.
Page 24
80. The position is however less straightforward so far as the Ministers are
concerned. The Scotland Act transferred the functions of the Secretary of State
under the 1984 Act to the Ministers only so far as they were exercisable within
devolved competence: see section 53(1). It is outside devolved competence to
make any provision by subordinate legislation which is incompatible with EU law,
or to exercise a function in a way which is incompatible with EU law: section
54(2) and (3), read with section 29(2)(d). More generally, the Ministers have no
power to make any subordinate legislation, or to do any other act, so far as the
legislation or act is incompatible with EU law: section 57(2). These provisions are
intended to disable the Ministers from acting in such a way as to place the United
Kingdom in breach of its obligations under EU law. The Act also contains
provisions relating to remedies. Section 102, for example, enables the court to
make an order removing or limiting any retrospective effect of its decision, or
suspending the effect of the decision to allow the defect to be corrected.
81. In an appropriate case, the court would have to consider the relationship
between the provisions of the Scotland Act and paragraphs 2 to 4 of Schedule 2 to
the 1984 Act. It would be necessary to consider, in particular, whether a scheme or
order made by the Ministers in breach of EU law would be beyond the powers
which they possess as a roads authority, by virtue of the transfer of functions
effected by the Scotland Act, and would therefore be “not within the powers of
[the 1984] Act”. If so, it would also be necessary to consider the possible
interaction between the remedial provisions of the two Acts. In addition, it would
be necessary to consider how the discretion conferred by paragraph 3 of Schedule
2 to the 1984 Act should be exercised in that context. In relation to the latter
aspect, the EU law principle of effectiveness, discussed by Lord Carnwath, would
also be relevant.
Standing
82. Before this court, as in the lower courts, the Ministers did not dispute Mr
Walton’s entitlement to bring the present application. Nevertheless, this court
cannot avoid the need to consider the Extra Division’s observations on the issue, as
their obiter nature is unlikely to detract from their potential influence, both in
relation to statutory applications and in relation to applications for judicial review.
A person aggrieved?
83. I shall consider first the requirement that an application under paragraph 2
of Schedule 2 to the 1984 Act must be brought by “a person aggrieved”. In
Attorney-General of the Gambia v N’Jie [1961] AC 617, 634 Lord Denning,
delivering the judgment of the Judicial Committee of the Privy Council, said that
Page 25
the definition by James LJ of the phrase as connoting a person with a legal
grievance (Ex parte Sidebotham; In re Sidebotham (1880) 14 Ch D 458, 465),
which had been echoed by Donovan J in Ealing Corporation v Jones, was not to
be regarded as exhaustive. He went on to say this:
“The words ‘person aggrieved’ are of wide import and should not be
subjected to a restrictive interpretation. They do not include, of
course, a mere busybody who is interfering in things which do not
concern him: but they do include a person who has a genuine
grievance because an order has been made which prejudicially
affects his interests.”
84. As Lord Fraser of Tullybelton made clear in Arsenal Football Club Ltd v
Ende [1979] AC 1, 32, the meaning to be attributed to the phrase will vary
according to the context in which it is found. It is therefore necessary, as Lord
President Rodger observed in Lardner v Renfrew District Council 1997 SC 104,
108, to have regard to the particular legislation involved, and the nature of the
grounds on which the appellant claims to be aggrieved.
85. Decisions both north and south of the border have indicated that a wider
interpretation than that adopted in Ex parte Sidebotham is appropriate, in
particular, in the context of statutory appeals under the Town and Country
Planning Acts: a context which, like the present, is concerned with the granting of
consent for proposed developments, and involves analogous procedures. Scottish
examples include North East Fife District Council v Secretary of State for
Scotland 1992 SLT 373, Cumming v Secretary of State for Scotland 1992 SC 464,
Mackenzie’s Trs v Highland Regional Council 1994 SC 693 and Lardner v
Renfrew District Council. Mention should also be made of the valuable review of
the English authorities by Woolf LJ in Cook v Southend-on-Sea Borough Council
[1990] 2 QB 1.
86. It is apparent from these authorities that persons will ordinarily be regarded
as aggrieved if they made objections or representations as part of the procedure
which preceded the decision challenged, and their complaint is that the decision
was not properly made. In North East Fife District Council v Secretary of State for
Scotland, for example, Lord President Hope said of the appellants (at 375-376):
“But in my opinion the fact that all three appellants were present at,
and made representations at the public inquiry is sufficient for them
to be persons ‘aggrieved’ … they were entitled to expect that the
Secretary of State, in considering their representations, would act
within the powers conferred upon him by the statute and … they are
Page 26
entitled to appeal against his decision on the ground that he has not
done so.”
The same approach has been adopted in England and Wales: see for example
Turner v Secretary of State for the Environment (1973) 28 P&CR 123, endorsed by
the Court of Appeal in Times Investment Ltd v Secretary of State for the
Environment (1990) 61 P&CR 98. Many other decisions to the same effect are
noted in Woolf, Jowell and Le Sueur, De Smith’s Judicial Review (6th edition,
2007), para 2-060, and in Wade and Forsyth, Administrative Law (10th edition,
2009), p 630.
87. The authorities also demonstrate that there are circumstances in which a
person who has not participated in the process may nonetheless be “aggrieved”:
where for example an inadequate description of the development in the application
and advertisement could have misled him so that he did not object or take part in
the inquiry, as in Cumming v Secretary of State for Scotland and the analogous
English case of Wilson v Secretary of State for the Environment [1973] 1 WLR
1083. Ordinarily, however, it will be relevant to consider whether the applicant
stated his objection at the appropriate stage of the statutory procedure, since that
procedure is designed to allow objections to be made and a decision then to be
reached within a reasonable time, as intended by Parliament.
88. In the present case, Mr Walton made representations to the Ministers in
accordance with the procedures laid down in the 1984 Act. He took part in the
local inquiry held under the Act. He is entitled as a participant in the procedure to
be concerned that, as he contends, the Ministers have failed to consult the public as
required by law and have failed to follow a fair procedure. He is not a mere
busybody interfering in things which do not concern him. He resides in the vicinity
of the western leg of the WPR. Although that is some distance from the Fastlink,
the traffic on that part of the WPR is estimated to be greater with the Fastlink than
without it. He is an active member of local organisations concerned with the
environment, and is the chairman of the local organisation formed specifically to
oppose the WPR on environmental grounds. He has demonstrated a genuine
concern about what he contends is an illegality in the grant of consent for a
development which is bound to have a significant impact on the natural
environment. In these circumstances, he is indubitably a person aggrieved within
the meaning of the legislation.
Standing to invoke the supervisory jurisdiction
89. In view of the Extra Division’s observation that Mr Walton would lack
standing, even if the test were the same as would apply to an application to the
Page 27
supervisory jurisdiction under the common law, it may be helpful to consider that
matter briefly.
90. In AXA General Insurance Ltd and others v HM Advocate and others
[2011] UKSC 46; [2012] 1 AC 868; 2011 SLT 1061, this court clarified the
approach which should be adopted to the question of standing to bring an
application to the supervisory jurisdiction. In doing so, it intended to put an end to
an unduly restrictive approach which had too often obstructed the proper
administration of justice: an approach which presupposed that the only function of
the court’s supervisory jurisdiction was to redress individual grievances, and
ignored its constitutional function of maintaining the rule of law.
91. As was said by Lord Hope and myself at paras 62 and 170 respectively, an
applicant has to have sufficient interest: that is to say, an interest which is
sufficient to justify his bringing the application before the court. In further
explanation of that concept, Lord Hope said (para 63):
“I would not like to risk a definition of what constitutes standing in
the public law context. But I would hold that the words ‘directly
affected’ which appear in rule 58.8(2) capture the essence of what is
to be looked for. One must, of course, distinguish between the mere
busybody, to whom Lord Fraser of Tullybelton referred in R v Inland
Revenue Comrs, Ex p National Federation of Self-Employed and
Small Businesses Ltd [1982] AC 617, 646, and the interest of the
person affected by or having a reasonable concern in the matter to
which the application related. The inclusion of the word ‘directly’
provides the necessary qualification to the word ‘affected’ to enable
the court to draw that distinction. A personal interest need not be
shown if the individual is acting in the public interest and can
genuinely say that the issue directly affects the section of the public
that he seeks to represent.”
92. As is clear from that passage, a distinction must be drawn between the mere
busybody and the person affected by or having a reasonable concern in the matter
to which the application relates. The words “directly affected”, upon which the
Extra Division focused, were intended to enable the court to draw that distinction.
A busybody is someone who interferes in something with which he has no
legitimate concern. The circumstances which justify the conclusion that a person is
affected by the matter to which an application relates, or has a reasonable concern
in it, or is on the other hand interfering in a matter with which he has no legitimate
concern, will plainly differ from one case to another, depending upon the particular
context and the grounds of the application. As Lord Hope made plain in the final
sentence, there are circumstances in which a personal interest need not be shown.
Page 28
93. I also sought to emphasise that what constitutes sufficient interest has to be
considered in the context of the issues raised. I stated (para 170):
“A requirement that the applicant demonstrate an interest in the
matter complained of will not however operate satisfactorily if it is
applied in the same way in all contexts. In some contexts, it is
appropriate to require an applicant for judicial review to demonstrate
that he has a particular interest in the matter complained of: the type
of interest which is relevant, and therefore required in order to have
standing, will depend upon the particular context. In other situations,
such as where the excess or misuse of power affects the public
generally, insistence upon a particular interest could prevent the
matter being brought before the court, and that in turn might disable
the court from performing its function to protect the rule of law …
What is to be regarded as sufficient interest to justify a particular
applicant’s bringing a particular application before the court, and thus
as conferring standing, depends therefore upon the context, and in
particular upon what will best serve the purposes of judicial review
in that context.”
94. In many contexts it will be necessary for a person to demonstrate some
particular interest in order to demonstrate that he is not a mere busybody. Not
every member of the public can complain of every potential breach of duty by a
public body. But there may also be cases in which any individual, simply as a
citizen, will have sufficient interest to bring a public authority’s violation of the
law to the attention of the court, without having to demonstrate any greater impact
upon himself than upon other members of the public. The rule of law would not be
maintained if, because everyone was equally affected by an unlawful act, no-one
was able to bring proceedings to challenge it.
95. At the same time, the interest of the particular applicant is not merely a
threshold issue, which ceases to be material once the requirement of standing has
been satisfied: it may also bear upon the court’s exercise of its discretion as to the
remedy, if any, which it should grant in the event that the challenge is wellfounded. In that regard, I respectfully agree with the observations made by Lord
Carnwath at para 103.
96. So far as the present case is concerned, I have listed the various factors
which support Mr Walton’s entitlement to bring the present application as a
“person aggrieved”. Mutatis mutandis, those factors would also have given him
standing to bring an application for judicial review if, for example, he had sought
to challenge the Ministers’ decision to restrict the remit of the inquiry so that some
Page 29
of his objections were, as he contended, unlawfully excluded from its scope. Such
a challenge would however have failed on its merits.
Conclusion
97. For the reasons I have explained, the appeal should in my opinion be
dismissed.
LORD CARNWATH
Substance
98. I agree that the appeal should be dismissed for the reasons given by Lord
Reed. These are, in short, that the adoption of Fastlink did not involve the
modification of a plan or programme within the meaning of the SEA Directive;
and that the procedure as a whole did not breach any common law principle of
fairness.
99. On the first point, like Lord Reed, I am content to proceed on the
assumption that the MTS, as approved by NESTRANS in March 2003, was itself
such a “plan or programme”. However, I should register my serious doubts on the
point, even accepting the flexible approach required by the European authorities. I
note from that the passage from Inter-Environnement Bruxelles quoted by Lord
Reed (para 22) refers to regulation of plans and programmes by provisions “which
determine the competent authorities for adopting them and the procedure for
preparing them…” There may be some uncertainty as to what in the definition is
meant by “administrative”, as opposed to “legislative or regulatory”, provisions.
However, it seems that some level of formality is needed: the administrative
provisions must be such as to identify both the competent authorities and the
procedure for preparation and adoption. Given the relatively informal character of
the NESTRANS exercise, it is not clear to me what “administrative provisions”
could be relied on as fulfilling that criterion.
100. On the issue of common law fairness, and the merits more generally, our
conclusion has persuasive support from the decision of the Aarhus Compliance
Committee on a complaint made by Road Sense in May 2009 (that is, after the
conclusion of the inquiry, but before the final decision). The Committee is
responsible for enforcement of the Aarhus Convention, to which the UK is a party
(more fully, the UNECE Convention on Access to Information, Public
Participation, in Decision-Making, and Access to Justice in Environmental
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Matters). Although the Convention is not part of domestic law as such (except
where incorporated through European directives), and is no longer directly relied
on in this appeal, the decisions of the Committee deserve respect on issues relating
to standards of public participation.
101. The Committee, by a decision adopted on 25 February 2011, rejected all the
allegations of breach of the Convention. In particular they rejected a complaint
about the limited scope of the public inquiry. The Committee were satisfied that
the public had had “a number of opportunities during the ongoing participation
process over the years to make submissions that the AWPR not be built, and to
have those submissions taken into account” (para 82). Although they noted “with
some concern” that the route finally selected and the dual carriageway character of
the Fastlink were not subject to the informal consultation process, they found that
these aspects had been subject to adequate public participation through the
statutory authorisation process (para 85). In relation to the argument that the
addition of the Fastlink involved a new strategic objective of providing relief for
the A90 without the consultation required by article 7 of the Convention, they held
that the document which adopted this objective was not itself a “plan” (subject to
article 7 of the Convention), but rather “a document relating to a specific activity”.
It seems therefore that this case has not disclosed any defects in domestic
procedures judged by European standards.
Remedies
102. Two issues have been argued before us in relation to the procedure: (i)
discretion (ii) standing. On the latter issue, I have nothing to add to Lord Reed’s
discussion of the expression “person aggrieved”, which confirms, as I understand
it, that Scottish practice on these matters is, or should be, in line with that south of
the border. I also agree with his comments, and those of Lord Hope, on the issue
of standing in judicial review more generally, although that issue does not arise
directly for decision in this case.
103. I will however add a few words of my own on the issue of discretion, which
in practice may be closely linked with that of standing, and may be important in
maintaining the overall balance of public interest in appropriate cases (see, for
example, R v Monopolies and Mergers Commission, ex p Argyll Group plc [1986]
1 WLR 763, 774-775). In this respect, I see discretion to some extent as a
necessary counterbalance to the widening of rules of standing. The courts may
properly accept as “aggrieved”, or as having a “sufficient interest” those who,
though not themselves directly affected, are legitimately concerned about damage
to wider public interests, such as the protection of the environment. However, if it
does so, it is important that those interests should be seen not in isolation, but
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rather in the context of the many other interests, public and private, which are in
play in relation to a major scheme such as the AWPR.
104. Mr Mure QC for the Ministers drew a distinction between breaches
respectively of domestic and of European law. He accepted that if there had been a
substantial failure to accord Mr Walton proper participation as required under
European law, then subject to the issue of standing the court should not withhold a
remedy. Further, he submitted, since the schemes and orders were drawn in a form
which does not enable Fastlink to be dealt with separately, the court would have no
alternative under this statutory scheme but to quash them all, with the effect that
the statutory procedures for the whole project would have to be started all over
again.
105. On the other hand, he submitted, if the only breach established were one of
fairness under domestic law, then the court would have wider discretion to refuse
relief. It could draw a balance between the “very attenuated” nature of Mr
Walton’s own interest, and the great public interest in allowing this important
scheme to proceed without delay. In this connection, he cited the long delay since
the 2003 MTS, when the scheme was already said to be “overdue”; the strong
support for the scheme from large sections of the public, and from national and
local elected bodies; the lack of any legal challenge from other non-governmental
or environmental organisations; the £115m of public money already spent on
preparatory work and property acquisition; the uncertainty and blight which would
be caused by quashing the orders; and the burden, on those who have participated
in the consultations and inquiries over many years, of having to go through the
same processes anew.
106. On the other side Mr O’Neill QC submitted that, if a significant breach
were found in the requirements for public consultation under either European or
domestic law, there would be no grounds to refuse him an effective remedy. As he
might have said: “fiat justitia, ruat caelum”. He submitted, however, that,
notwithstanding the limited nature of the remedies provided for in terms by the
statute, it would not be necessary to quash the scheme and orders as whole. The
court had inherent powers to fashion a proportionate remedy, directed simply to
remedying whatever defect was found in relation to the procedures relating to the
Fastlink.
107. In considering these submissions, I propose to consider first the statutory
application procedure as it operates under domestic law, before turning to its
application to alleged breaches of the European environmental assessment
directives. In the latter context, I note what Lord Reed has said about the
implications of the Scotland Act. We have not heard argument on that aspect, and
nothing I say is intended to pre-empt discussion of such issues in future cases.
Page 32
Statutory challenge – domestic law
108. The procedure under which the present proceedings were brought is
contained in Schedule 2 of the 1984 Act, the relevant provisions of which have
been set out by Lord Reed (para 9). There are six distinctive features:
i) The statutory procedure may be brought only by “a person
aggrieved” by the scheme or order.
ii) It must be brought within six weeks from the publication of the
statutory notice of the making of scheme or order; there is no power to
extend that time-limit.
iii) It is an exclusive procedure. The validity of a scheme or order may
not be challenged by any other procedural route before or after it is made.
iv) There are two possible grounds for challenge: (a) not within the
powers of the Act (b) failure to comply with any requirement of the Act or
regulations made under it. Under (b), the applicant must also show
substantial prejudice to his interests caused by the failure.
v) If the grounds are established the court “may” make an order; it is on
its face a discretionary jurisdiction.
vi) The only remedies available to the court in terms of the Act are (a)
an interim order suspending operation of the scheme or order pending final
determination by the court, (b) a final order quashing the scheme or order
either generally or “in so far as it affects the property of the applicant”.
109. Provisions of this kind are found in many statutes relating to planning,
highways and other similar public functions, but the detail varies. The scope of the
two statutory grounds, and the relationship between them, have been considered in
a number of judgments, not all mutually consistent. A useful review of the
authorities over some forty years can be found in Wade & Forsyth, Administrative
Law 10th ed pp 626-629. From that, it can be seen that in some early Scottish cases
a narrow view was taken of the second procedural ground. It was held for example
that a breach of the inquiries procedure rules was not covered, because they had
been made under the Tribunals and Inquiries Act 1958, rather than the Acquisition
of Land (Authorisation Procedure) (Scotland) Act 1947 under which the order had
been made (see Hamilton v Roxburgh County Council 1971 SLT 2). It is open to
Page 33
question whether this strict view would be upheld today, but the particular problem
has been addressed in some later statutes, which include breach of the inquiries
procedure rules as a separate and specific head of procedural challenge (see e.g.
Acquisition of Land Act 1981 section 23(3)(b)); Town and Country Planning
(Scotland) Act 1997 section 239(9)).
110. On the other hand, the requirement for “substantial prejudice” under the
second ground has been interpreted flexibly. Thus, although prejudice to the
applicant’s own interests provides the test, it has been accepted that he may be
prejudiced by a failure to give appropriate notice which might have attracted other
potential objectors to his cause (see Wilson v Secretary of State for the
Environment [1973] 1 WLR 1083). There has also been some debate about which
ground is appropriate for a breach of common law principles of natural justice or
fairness: whether substantive, procedural or both (see eg Fairmount Investments
Ltd v Secretary of State for the Environment [1976] 1 WLR 1255). On the other
hand, in George v Secretary of State for the Environment (1979) 77 LGR 689,
Lord Denning MR suggested that the issue was academic, since an actionable
breach of natural justice necessarily implies a finding of substantial prejudice to
the applicant’s interests.
111. In the modern law, in my view, it would be wrong to construe such
provisions too rigidly, or without regard to the parallel development of principles
of judicial review. In De Smith’s Judicial Review (6th Ed paragraphs 17-025ff) the
two statutory grounds are helpfully related to Lord Diplock’s now well-established
categorisation of the grounds for judicial review in Council of Civil Service Unions
v Minister for the Civil Service [1985] AC 374 (the “GCHQ case”). It is suggested
that ground (a) is equivalent to “the grounds of judicial review known as illegality
and unreasonableness”; while ground (b) is “close to the ground of judicial review
of procedural propriety”, treated by Lord Diplock as including “both the common
law rules of natural justice and the breach of statutorily required procedures”. The
authors add:
“Normally in applications to quash, for the claimant to succeed in
quashing the decision he must have been ‘substantially prejudiced’
by the failure to comply with the statute’s procedural conditions.
Under both substantive and procedural grounds of review the courts
possess a residual discretion not to quash a decision where there has
been no prejudice or detriment to the claimant and to refuse relief in
exceptional circumstances.”
112. I find this a useful general guide, which gives appropriate, but not unduly
legalistic, effect to the distinction drawn by the legislature between substantive and
procedural grounds. The applicant will be refused a remedy, where he complains
Page 34
only of a procedural failure (whether under statutory rules or common law
principles), if that failure has caused him personally no substantial prejudice.
Where, however, a substantive defect is established, going either to the scope of
the statutory powers under which the project was promoted, or to its legality or
rationality in the sense explained by Lord Diplock, the court’s discretion to refuse
a remedy will be much more limited. These general principles must of course be
read in the context of the statutory framework applicable in a particular case.
113. The application of these principles in the present case is to my mind
straightforward under domestic law. It is not suggested that the making of the
schemes and orders authorising the AWPR was not within the powers conferred by
the 1984 Act. Nor is it alleged that they were vitiated by illegality or irrationality.
There is no allegation of any breach of the procedural requirements laid down by
or under the Act itself. Even if there had been some technical breach of those rules,
or of analogous common law principles, Mr Walton would not have been entitled
to a remedy, because he has not shown, or even alleged, that his own interests have
been significantly prejudiced.
114. In relation to the Fastlink, his legitimate interest extended to the right to be
consulted, to make his views known on any aspect of the scheme, and to have
those views considered. He did not have a legal right to have those views
examined at a public inquiry, but an inquiry was held and he was heard. He had no
right to dictate the result. Furthermore, the balance of the factors listed by Mr
Mure QC point overwhelmingly to the exercise of discretion in favour of allowing
the scheme to proceed.
Statutory Challenge – Environmental Assessment
115. Breach of the rules relating to environmental assessment, derived from
European directives, cannot be considered in a purely domestic context. A more
careful analysis is required having regard to the principles applying to remedies
under European law. In view of Mr Mure’s partial concession, the argument before
us has been relatively limited. However, I will take this opportunity to dispel what
seem to me misconceptions as to the effect of some of the authorities, in the hope
of clearing the way to fuller argument in another case.
116. Mr O’Neill submitted that, because a breach of the SEA Directive would
involve a breach of European law, the principle of “effectiveness” (see now article
19(1) of the Treaty on the Functioning of the European Union) requires nothing
less than the nullifying of any action based on it. This submission (and Mr Mure’s
partial concession) was derived principally from the speeches of the House of
Lords in Berkeley v Secretary of State for the Environment (No. 1) [2001] 2 AC
Page 35
603, relating to the EIA directive, and also on more recent CJEU authorities, R
(Wells) v Secretary of State for Transport, Local Government and the Regions (C201/02) [2004] ECR I-723, and (in respect of the SEA directive) InterEnvironnement Wallonie ASBL v Région Wallonie (Case C-41/11) [2012] 2 CMLR
623. I will consider those authorities below, but before doing so it is necessary to
look in a little more detail at the relevant Scottish legislation.
EIA and SEA in Scottish law
117. Lord Reed has outlined the relevant provisions of the European Directives.
For present purposes it is necessary to look in more detail at the implementation
respectively of the EIA and SEA Directives in Scottish law.
EIA
118. The Environmental Impact Assessment (Scotland) Regulations 1999 (SSI
1999/1) (replacing regulations made in 1988) gave effect to the 1985 EIA
directive, as amended in 1997, in relation in particular to town and country
planning and roads. “Environmental information” was defined to include both the
environmental impact statement, required by the regulations, and also any
representations made in response (regulation 2).
119. Different approaches were adopted in respect of decisions relating to
planning and roads. For the former, regulation 3 prohibited the grant of planning
permission on an application covered by the regulations, unless the environmental
information had been taken into consideration. For the purposes of any statutory
challenge to the Court of Session, references to action “not within the powers of
the Act” were to be “taken to extend to a grant of planning permission by the
Scottish Ministers in contravention of regulation 3” (regulation 43). As will be
seen the corresponding English provision was relied on by Lord Hoffmann in
Berkeley as indicating that breach of the EIA regulations was to be treated as “not
merely non-compliance with a relevant requirement but as rendering the grant of
permission ultra vires”.
120. Roads were dealt with separately by Part III of the regulations. By dint of
powers under the European Communities Act 1972, new sections were inserted
into the Roads (Scotland) Act 1984, providing (inter alia) for environmental
assessment of certain road construction projects (section 20A), and for
consideration by Ministers of the environmental information and representations
made in response (schedule 1). In contrast with the planning provisions, it was not
Page 36
provided that non-compliance should be treated as taking the action outside the
powers of the Act for the purpose of a statutory challenge.
SEA
121. As explained by Lord Reed, strategic environmental assessment was
introduced into European law by Directive 2001/42/EC. Implementation into
national law was required by 21 July 2004. In Scotland this was effected initially
by the Environmental Assessment of Plans and Programmes (Scotland)
Regulations 2004 (SSI 2004/258), which came into effect on 20 July 2004. (It is
not therefore true, as was alleged at one time by the appellant, that there was a
failure to implement the Directive by the due date.) From 20 February 2006 the
regulations were replaced by the Environmental Assessment (Scotland) Act 2005.
122. Unlike the EIA regulations, neither the SEA regulations nor the 2005 Act
contained any specific provision making the SEA requirements part of the
procedural requirements for a subsequent road project, nor otherwise stating the
effects of non-compliance on the validity of such a project. Thus, it appears,
breach of the SEA Directive or of the domestic provisions was not made a
statutory ground for challenging a subsequent scheme or order under the 1984 Act.
One infers that such provision was thought unnecessary, because of the availability
of judicial review as an effective remedy to challenge a plan or programme
adopted in breach of the SEA directive at the appropriate time. There was no
reason for such a breach to be treated also as a breach of the 1984 Act, so as to
give rise to a statutory challenge under that Act to the approval of a consequent
project, perhaps many years later.
123. Against that background I turn to consider the authorities.
Berkeley
124. In Berkeley it was held that a planning permission for the development of a
site owned by Fulham Football Club close to the River Thames was unlawful as it
had been adopted in breach of the EIA Directive. Relief should not be refused
merely because the relevant information was before the Secretary of State in other
forms, and compliance with the regulations would have made no difference to the
result.
125. On the scope of the court’s discretion, Lord Bingham said (at p.608):
Page 37
“Even in a purely domestic context, the discretion of the court to do
other than quash the relevant order or action where such excessive
exercise of power is shown is very narrow. In the Community
context, unless a violation is so negligible as to be truly de minimis
and the prescribed procedure has in all essentials been followed, the
discretion (if any exists) is narrower still: the duty laid on member
states by article 10 of the EC Treaty, the obligation of national courts
to ensure that Community rights are fully and effectively enforced,
the strict conditions attached by article 2(3) of the Directive to
exercise of the power to exempt and the absence of any power in the
Secretary of State to waive compliance (otherwise than by way of
exemption) with the requirements of the Regulations in the case of
any urban development project which in his opinion would be likely
to have significant effects on the environment by virtue of the factors
mentioned, all point towards an order to quash as the proper response
to a contravention such as admittedly occurred in this case.”
126. Similarly, Lord Hoffmann said (at p.616):
“A court is therefore not entitled retrospectively to dispense with the
requirement of an EIA on the ground that the outcome would have
been the same or that the local planning authority or Secretary of
State had all the information necessary to enable them to reach a
proper decision on the environmental issues. Although section
288(5)(b) [of the Town and Country Planning Act 1990], in
providing that the court ‘may’ quash an ultra vires planning decision,
clearly confers a discretion upon the court, I doubt whether,
consistently with its obligations under European law, the court may
exercise that discretion to uphold a planning permission which has
been granted contrary to the provisions of the Directive. To do so
would seem to conflict with the duty of the court under article 10 (ex
article 5) of the EC Treaty to ensure fulfilment of the United
Kingdom’s obligations under the Treaty. In classifying a failure to
conduct a requisite EIA for the purposes of section 288 as not merely
non-compliance with a relevant requirement but as rendering the
grant of permission ultra vires, the legislature was intending to
confine any discretion within the narrowest possible bounds. It is
exceptional even in domestic law for a court to exercise its discretion
not to quash a decision which has been found to be ultra vires: see
Glidewell LJ in Bolton Metropolitan Borough Council v Secretary of
State for the Environment (1990) 61 P & CR 343, 353. [Counsel for
the Respondent] was in my opinion right to concede that nothing less
than substantial compliance with the Directive could enable the
planning permission in this case to be upheld.”
Page 38
127. Although of course these statements carry great persuasive weight, care is
needed in applying them in other statutory contexts and other factual
circumstances. Not only did they rest in part on concessions by counsel for the
Secretary of State, but the circumstances were very unusual in that, by the time the
case reached the House of Lords, the developer had abandoned the project, and the
decision had lost any practical significance.
128. In Bown v Secretary of State for Transport, Local Government and the
Regions [2003] EWCA Civ 1170; [2004] Env LR 509, 526 I said (with the
agreement of Lord Phillips MR and Waller LJ):
“The speeches [in Berkeley] need to be read in context. Lord
Bingham emphasised the very narrow basis on which the case was
argued in the House (p 607F-608A). The developer was not
represented in the House, and there was no reference to any evidence
of actual prejudice to his or any other interests. Care is needed in
applying the principles there decided to other circumstances, such as
cases where as here there is clear evidence of a pressing public need
for the scheme which is under attack.” (para 47)
129. That passage was noted with approval by the House of Lords in R
(Edwards) v Environment Agency [2008] UKHL 22; [2009] 1 All ER 57, paras 63-
65. Having referred to the background and reasoning of the decision in Berkeley,
including the provision by which the grant of permission was to be treated as not
within the powers of the planning Act, Lord Hoffmann added:
“But I agree with the observation of Carnwath LJ in Bown v
Secretary of State for Transport, Local Government and the Regions
[2004] Env LR 509, 526, that the speeches in Berkeley need to be
read in context. Both the nature of the flaw in the decision and the
ground for exercise of the discretion have to be considered. In
Berkeley, the flaw was the complete absence of an EIA and the sole
ground for the exercise of the discretion was that the result was
bound to have been the same.”
130. In Edwards, by contrast with Berkeley, there had been no breach of
European law, and the only breach of domestic law was the failure to disclose
information about the predicted effect of certain emissions. Since then, however,
the actual emissions from the plant had been monitored, and taken into account,
and it would be “pointless to quash the permit simply to enable the public to be
consulted on out-of-date data” (para 65). Lord Hoffmann added:
Page 39
“To this pointlessness must be added the waste of time and
resources, both for the company and the Agency, of going through
another process of application, consultation and decision.”
The courts below had accordingly been right to exercise their discretion against
quashing the permit.
131. In the present case, both the statutory context and the factual circumstances
are again distinguishable from those applicable in Berkeley. The factual
differences are dramatic. In Berkeley there was no countervailing prejudice to
public or private interests to weigh against the breach of the directive on which
Lady Berkeley relied. The countervailing case advanced by the Secretary of State
was one of pure principle. Here by contrast the potential prejudice to public and
private interests from quashing the order is very great. It would be extraordinary if,
in relation to a provision which is in terms discretionary, the court were precluded
by principles of domestic or European law from weighing that prejudice in the
balance.
132. The statutory context, as I have explained it above, is also significantly
different from that applicable in Berkeley. First, under the 1984 Act, even in
respect of EIA, a breach of the regulations does not, as under the planning Acts,
render the subsequent decision outside the powers of the Act. It is a breach of the
requirements laid down by section 20A, and as such is within the second ground of
challenge, but is thus also subject to the need to show “substantial prejudice”.
Secondly, and more importantly for the purposes of this case, there is nothing to
assimilate the requirements of the SEA Directive to the requirements of the 1984
Act, breach of which alone may give rise to a challenge under that procedure. No
doubt the adoption of a plan or programme in breach of the SEA Directive would
be subject to challenge by judicial review at the appropriate time. But the
legislature has not thought it necessary to provide for a separate right of challenge
on those grounds in relation to the approval of a subsequent project made under the
1984 Act.
133. Accordingly, subject to any overriding principles emerging from the
European authorities (see below), it seems to me that, even if (contrary to what
appears to be the effect of the statute) breach of the SEA Directive were a ground
of challenge under the 1984 Act procedure, the court would retain a discretion to
refuse relief on similar grounds to those available under domestic law.
European authorities
Page 40
134. As I have said, the two European cases on which Mr O’Neill relies are R
(Wells) v Secretary of State for Transport, Local Government and the Regions (C201/02) [2004] ECR I-723, and Inter-Environnement Wallonie ASBL v Région
Wallonie (Case C-41/11) [2012] 2 CMLR 623.
135. In Wells, it was held that EIA was required as part of the procedure for
determining the registration conditions for an old mining consent. In relation to the
remedy for breach of that requirement, and in response to a submission of the UK
Government that revocation or modification of the consent was not necessary, the
court said (para 64-69):
“As to that submission, it is clear from settled case-law that under
the principle of cooperation in good faith laid down in Article 10 EC
the Member States are required to nullify the unlawful consequences
of a breach of Community law… Such an obligation is owed, within
the sphere of its competence, by every organ of the Member State
concerned…
Thus, it is for the competent authorities of a Member State to take,
within the sphere of their competence, all the general or particular
measures necessary to ensure that projects are examined in order to
determine whether they are likely to have significant effects on the
environment and, if so, to ensure that they are subject to an impact
assessment… Such particular measures include, subject to the limits
laid down by the principle of procedural autonomy of the Member
States, the revocation or suspension of a consent already granted, in
order to carry out an assessment of the environmental effects of the
project in question as provided for by Directive 85/337.
The Member State is likewise required to make good any harm
caused by the failure to carry out an environmental impact
assessment.
The detailed procedural rules applicable are a matter for the
domestic legal order of each Member State, under the principle of
procedural autonomy of the Member States, provided that they are
not less favourable than those governing similar domestic situations
(principle of equivalence) and that they do not render impossible in
practice or excessively difficult the exercise of rights conferred by
the Community legal order (principle of effectiveness)….
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So far as the main proceedings are concerned, if the working of
Conygar Quarry should have been subject to an assessment of its
environmental effects in accordance with the requirements of
Directive 85/337, the competent authorities are obliged to take all
general or particular measures for remedying the failure to carry out
such an assessment.
In that regard, it is for the national court to determine whether it is
possible under domestic law for a consent already granted to be
revoked or suspended in order to subject the project in question to an
assessment of its environmental effects, in accordance with the
requirements of Directive 85/337, or alternatively, if the individual
so agrees, whether it is possible for the latter to claim compensation
for the harm suffered…” (emphasis added)
The passage which I have emphasised, which was repeated in the court’s answer to
the specific question, contains as I read it an authoritative statement of the two
applicable principles of “equivalence” and “effectiveness”. On the facts of that
case there can have been little doubt as to the practical effect of the project on Mrs
Wells’ environment, her home being on the road separating the two halves of the
quarry (para 21-22). However, it is of interest that the court envisaged the payment
of compensation, if possible under national law, as a possible alternative to
revoking the consents. It is not entirely clear why that should have depended on
her agreement, rather than being a matter for the court’s discretion. However, that
possibility indicates that the public interest in nullifying an action taken in breach
of European law is not absolute, and that the remedy may in some circumstances
be tailored to the extent of the practical damage, if any, suffered by a particular
applicant.
136. In Inter-Environnement Wallonie the main issue was the application of the
SEA Directive to a government order relating to protection of waters against
pollution by nitrates. The court restated the same principles of “equivalence” and
“effectiveness”, as applicable by analogy to breach of the SEA Directive, adding:
“47 The fundamental objective of Directive 2001/42 would be
disregarded if national courts did not adopt in such actions brought
before them, and subject to the limits of procedural autonomy, the
measures, provided for by their national law, that are appropriate for
preventing such a plan or programme, including projects to be
realised under that programme, from being implemented in the
absence of an environmental assessment.”
Page 42
137. The factual context of that case was again very different. However, it is to
be noted that even there practical considerations had a part to play. Having found a
breach, the court accepted that, to avoid a “legal vacuum” (para 61), the order in
question could “exceptionally” (para 62) be left in operation for the short period
required to carry out the SEA.
138. It would be a mistake in my view to read these cases as requiring automatic
“nullification” or quashing of any schemes or orders adopted under the 1984 Act
where there has been some shortfall in the SEA procedure at an earlier stage,
regardless of whether it has caused any prejudice to anyone in practice, and
regardless of the consequences for wider public interests. As Wells makes clear,
the basic requirement of European law is that the remedies should be “effective”
and “not less favourable” than those governing similar domestic situations.
Effectiveness means no more than that the exercise of the rights granted by the
Directive should not be rendered “impossible in practice or excessively difficult”.
Proportionality is also an important principle of European law.
139. Where the court is satisfied that the applicant has been able in practice to
enjoy the rights conferred by the European legislation, and where a procedural
challenge would fail under domestic law because the breach has caused no
substantial prejudice, I see nothing in principle or authority to require the courts to
adopt a different approach merely because the procedural requirement arises from
a European rather than a domestic source.
140. Accordingly, notwithstanding Mr Mure’s concession, I would not have
been disposed to accept without further argument that, in the statutory and factual
context of the present case, the factors governing the exercise of the court’s
discretion are materially affected by the European source of the environmental
assessment regime.
Form of order
141. Finally, I should say something about the form, and consequences, of the
order which would have been appropriate had Mr Walton succeeded in his
challenge in relation to the Fastlink, having regard to his submission that the courts
would not have been bound to quash the schemes and orders, but would have had
power to fashion a suitable remedy. His application did not condescend to any
particulars as to how such a suitable remedy might be worded, assuming there was
power to do so.
Page 43
142. I agree with Mr Mure that under this statutory scheme the only power given
to the court is to quash the scheme or order, not merely the decision approving it
(cf Town and Country Planning (Scotland) Act 1997 sections 237-239, in which
under corresponding provisions specific power is given to quash, for example, a
“decision” on a planning appeal). I also agree that, given the form in which the
schemes and orders were made, it is not possible to make a distinct order in respect
of the Fastlink. Mr O’Neill was unable to point to any statutory or other source for
a power to fashion a more limited remedy, nor to explain how in practice it would
be done. However desirable such a power might be, it is not in my view open to
the court to confer on itself powers which Parliament has not granted.
143. On the other hand, I would not necessarily agree with Mr Mure that under
this procedure the quashing of the schemes and orders would inevitably require the
whole process to be undertaken anew. It is true that, in relation to similar orders
made by local authorities, which are subject to confirmation by the Secretary of
State, the accepted view seems to be that the quashing of the “order” relates to the
original order as made by the authority, rather than simply to its confirmation by
the Minister. The result appears to be that everything that followed that action is
also invalidated, regardless of whether it had any relevance to the legal defect (see
Whitworth v Secretary of State for Environment, Food & Rural Affairs [2010]
EWCA Civ 1468 paras 50-52).
144. However, where such an order is promoted by Ministers, the statute
normally (as in the present case) provides for it to be made first in draft, pending
the completion of the statutory procedures, and only “made” when the Minister
reaches a final decision. Logically, therefore, (although it is not clear why there is
a difference from the position in local authority cases) quashing the “order” affects
directly only that last step, and does not necessarily invalidate the whole process.
How much can be salvaged from the earlier procedures will no doubt depend on
the nature of the breach, and how it can effectively be remedied.
145. I mention this point because it may be an issue of great practical importance
in some cases, and it has not received much attention in the authorities or the
textbooks (or even in the 1994 Law Commission report: Administrative Law:
Judicial Review and Statutory Appeals, Law Com 226). It is hard to see any policy
justification either for the rigidity of the powers given to the court, or, still less, for
the curious variations as between similar statutory schemes. As I observed in
Whitworth, there is a strong case for statutory reform to provide a more flexible
and coherent range of powers in such cases, akin to those available in judicial
review.
146. In conclusion, for the reasons given by Lord Reed I also would dismiss the
appeal.
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LORD HOPE
147. There is no doubt that the trunk road network on the periphery of Aberdeen
is urgently in need of improvement. The decision to construct the Fastlink, whose
construction is said to be essential to the success of the scheme that is now in
prospect, was taken nearly seven years ago. There has been understandable
frustration at the delays in the planning system, due in no small measure to Mr
Walton’s objection. His determination to maintain his objection has been
vigorously criticised, and there have been suggestions that this was irresponsible.
148. It has to be said, however, that it became clear during the hearing of his
appeal before this court that the question whether the decision to construct the
Fastlink fell within the scope of the SEA raised a question of some difficulty
which it was proper for this court to consider. It was a matter of concession by the
appellant both before the Lord Ordinary and in the Inner House that any plan or
programme such as the MTS whose preparation began before 21 July 2004 did not
require an assessment in compliance with the SEA Directive: [2012] CSIH 19,
para 20. Mr Mure QC sought to rely on this concession, which was accepted in the
courts below, before this court too. But, as Lord Reed points out in para 63, the
fact that its first formal preparatory act was taken before 21 July 2004 does not
deprive a plan or programme of its character as a plan or programme within the
meaning of article 2(a). The question whether the Fastlink decision was within the
scope of the SEA cannot be dismissed simply on temporal grounds, which was the
basis for the concession. It must be regarded as a live issue which, as it was not
dealt with below, this court has to decide.
149. Having heard full argument from both sides on this issue, however, I have
reached the conclusion for the reasons given by Lord Reed in paras 67-69 that the
decision to construct the Fastlink was not a modification of a plan or programme
within the meaning of the SEA Directive. Like him, I would reserve my opinion
on the question whether the MTS as described in NESTRANS’ report of March
2003 formed a plan or programme within the meaning of the Directive. Even if it
was, a careful analysis of the history shows that the decision to construct the
Fastlink was taken purely and solely in furtherance of a specific project to relieve
congestion on the A90. It did not seek to affect or modify the legal or
administrative framework for the future development consent of projects as
described in the MTS.
150. I also agree that, looking at the procedure as a whole and for the reasons
given by Lord Reed in paras 75-76, Mr Walton’s complaint of common law
unfairness is not made out. It is worth noting in support of this conclusion that, as
Lord Carnwath points out in para 101, the decision of the Aarhus Compliance
Committee in February 2011 to reject the complaint by Road Sense in May 2009
Page 45
shows that, judged by European standards, the matters complained of did not
disclose any defects in the domestic procedures that were adopted in this case. For
these reasons I too would dismiss the appeal.
151. I should like however to add a few words of my own on the question of
standing in the context of environmental law. They are prompted by the Extra
Division’s observation in para 37 that Mr Walton had placed no material before
the court to support the proposition that the schemes or orders or any provision
therein substantially prejudice his own interests or that they would affect his
property. His residence was some significant distance from the leg of the proposal
which was the particular target of his attack. There was, therefore, an initial
question to be addressed, whether or not he was a person “aggrieved” for the
purposes of paragraph 2 of Schedule 2 to the 1984 Act. Indicating that they were
of the view that he was not such a person, the judges of the Extra Division said in
para 39 that in that situation they would have had no hesitation in concluding that,
had they been with Mr Walton in all or any of his attempts to attack the legality of
the schemes and orders, they would not have granted the remedy of quashing
them. This was because it would have been quite inappropriate that the project,
whose genesis came about some 30 years ago and about which there had been a
huge amount of public discussion and debate, should be stopped from proceeding
by an individual in his position: para 40.
152. I think, with respect, that this is to take too narrow a view of the situations
in which it is permissible for an individual to challenge a scheme or order on
grounds relating to the protection of the environment. An individual may be
personally affected in his private interests by the environmental issues to which an
application for planning permission may give rise. Noise and disturbance to the
visual amenity of his property are some obvious examples. But some
environmental issues that can properly be raised by an individual are not of that
character. Take, for example, the risk that a route used by an osprey as it moves to
and from a favourite fishing loch will be impeded by the proposed erection across
it of a cluster of wind turbines. Does the fact that this proposal cannot reasonably
be said to affect any individual’s property rights or interests mean that it is not
open to an individual to challenge the proposed development on this ground? That
would seem to be contrary to the purpose of environmental law, which proceeds on
the basis that the quality of the natural environment is of legitimate concern to
everyone. The osprey has no means of taking that step on its own behalf, any more
than any other wild creature. If its interests are to be protected someone has to be
allowed to speak up on its behalf.
153. Of course, this must not be seen as an invitation to the busybody to question
the validity of a scheme or order under the statute just because he objects to the
scheme of the development. Individuals who wish to do this on environmental
grounds will have to demonstrate that they have a genuine interest in the aspects of
Page 46
the environment that they seek to protect, and that they have sufficient knowledge
of the subject to qualify them to act in the public interest in what is, in essence, a
representative capacity. There is, after all, no shortage of well-informed bodies that
are equipped to raise issues of this kind, such as the Scottish Wildlife Trust and
Scottish Natural Heritage in their capacity as the Scottish Ministers’ statutory
advisers on nature conservation. It would normally be to bodies of that kind that
one would look if there were good grounds for objection. But it is well-known they
do not have the resources to object to every development that might have adverse
consequences for the environment. So there has to be some room for individuals
who are sufficiently concerned, and sufficiently well-informed, to do this too. It
will be for the court to judge in each case whether these requirements are satisfied.
154. For these reasons it would be wrong to reject Mr Walton’s entitlement to
bring his application on environmental grounds simply because he cannot show
that his own interests would be substantially prejudiced. I agree with Lord Reed’s
conclusion in para 88 that he has demonstrated a genuine concern about the
legality of a development which is bound to have a significant impact on the
environment, and that he is entitled to be treated as a person aggrieved for the
purpose of the statute.
155. The better way to meet the concerns that the Extra Division expressed about
this case in para 40 would have been to weigh in the balance against any breach of
the Directive that the applicant was able to establish the potential prejudice to
public and private interests that would result if the schemes and orders were to be
quashed. I agree with Lord Carnwath’s analysis of the speeches in Berkeley v
Secretary of State for the Environment (No 1) [2001] 2 AC 603 in the light of the
subsequent authorities, including R (Edwards) v Environment Agency [2008]
UKHL 22, [2009] 1 All ER 57 where the circumstances were very different from
those in Berkeley. The fact that an individual may bring an objection on
environmental grounds derived from European directives does not mean that the
court is deprived of the discretion which it would have at common law, having
considered the merits and assessed where the balance is to be struck, to refuse to
give effect to the objection.
156. The scope for the exercise of that discretion in that context is not therefore
as narrow as the speeches in Berkeley might be taken to suggest. The principles of
European law to which Lord Carnwath refers in para 138 support this approach.
Where there are good grounds for thinking that the countervailing prejudice to
public or private interests would be very great, as there are in this case, it will be
open to the court in the exercise of its discretion to reject a challenge that is based
solely on the ground that a procedural requirement of European law has been
breached if it is satisfied that this is where the balance should be struck.
Page 47
Page 48
LORD KERR AND LORD DYSON
157. We agree with the judgments of Lord Hope, Lord Reed and Lord Carnwath
and for the reasons they have given, we too would dismiss the appeal.
