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Walton, concerning the proposal for a new bypass of the city of Aberdeen, marks a further step in the development of the Scots law of standing in public law cases and also involves detailed discussion on implementation of Strategic Environmental Assessment (SEA) Directive.

Background

Mr Walton appealed against the decision of the Inner House of the Court of Session that orders made by the Scottish Ministers to allow the construction of a western peripheral route (WPR) around Aberdeen were valid and that, even if invalid, that Mr Walton may not have had standing to bring a challenge to those orders. The construction of the new road had been approved by the Scottish Government but after a campaign against part of the proposed route, the Scottish Minister for Transport instructed that four previously discarded options for the route should be re-examined. A public consultation on all five options took place in the spring of 2005. Later that year, a further hybrid option (the “Fastlink”), combining two of the five original options, was considered by the Minister and approved.  Draft orders and schemes together with an Environmental Impact Assessment (EIA) were published in December 2006, followed by new draft schemes and orders published in September and October 2007 and May 2008. The original EIA was withdrawn and replaced in 2007 with a new EIA reflecting additional work. The objections to the 2006 schemes and orders were carried forward to the 2007 versions, and in total there were around 10,000 objections. Mr Walton claimed that (1) the Fastlink was not needed and (2) there had been no public consultation on the Fastlink route.

At first instance Mr Walton argued that there had been a failure to comply with (a) the EIA Directive; (b) common law requirements of fair procedure; and (c) the SEA Directive in relation to the Fastlink. The Inner House rejected all of Mr Walton’s grounds of challenge and queried whether in any event Mr Walton was “a person aggrieved” in terms of the Roads (Scotland) Act 1984 (the “1984 Act”).

The issues before the Supreme Court were (i) whether the Fastlink was adopted in breach of the SEA Directive’s requirement for a public consultation, (ii) whether if (i) was established Mr Walton would be entitled to a remedy and (iii) whether Mr Walton had standing.

Dismissing the appeal, the Supreme Court held that (i) an assessment was not required under the SEA Directive as the Fastlink was not a plan or programme and did not modify a framework which had been set for future development consent of projects, which under the SEA Directive would have rendered an assessment necessary; (ii) the remedy issue required fuller consideration and (iii) Mr Walton was “a person aggrieved” and would be deemed to have standing (as discussed in greater detail below).

Standing

Mr Walton’s standing was not disputed by the Scottish Ministers but Lord Reed took the opportunity to respond to the comments which had been made by the Inner House (and which had been read by some as out of step with the expansion of standing in Scots public law heralded by Lords Hope and Reed in AXA General Insurance Ltd –v– The Lord Advocate[2011] UKSC 46). Considering first that the application must be brought by “a person aggrieved” under paragraph 2 of Schedule 2 to the 1984 Act, Lord Reed’s view was that the definition encompasses more than a person with a “legal grievance”, noting previous authorities which support the view that “persons will ordinarily be regarded as aggrieved if they made objections or representations as part of the procedure which preceded the decision challenge, and their complaint is that the decision was not properly made”.   Other relevant factors in this case were that Mr Walton resided in the vicinity of the western leg of the WPR, traffic on which would be affected by the Fastlink; he was an active member of local organisations concerned with the environment and chairman of the organisation specifically formed to oppose the WPR on environmental grounds, and he demonstrated a genuine concern about alleged illegality concerning a development which is bound to have a significant impact on the natural environment.

Lord Reed also took the opportunity to reiterate the approach to standing which had been set out in AXA, emphasising that the court’s constitutional function of maintaining the rule of law should not be ignored in favour of presuming that the court’s only function is to redress individual grievances. Re-affirming the use of the words “directly affected” as a key part of the test of standing, Lord Reed emphasised that these words enable the court to draw a distinction between “the mere busybody and the person affected by or having a reasonable concern in the matter to which the application relates”. Further, there will be instances where a person does not require to demonstrate a particular interest in a public authority’s violation of the law in order to bring it before a court: “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”.

Lord Hope dealt with the issue by reference to the example of an osprey’s route to a fishing loch being impeded by the proposed erection of wind turbines.  The fact that a proposal cannot reasonably be said to affect any individual’s property rights or interests should not mean, in Lord Hope’s view, that it is not open to any individual to challenge the proposal. It would otherwise “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”. Individuals who wished to pursue a cause in that context would require to demonstrate a genuine interest in and sufficient knowledge of the environment that they seek to protect, in order to qualify to act in the public interest in what he describes as being in essence a representative capacity.

English readers will appreciate Lord Carnwath’s observation that Lord Reed’s discussion of the term “person aggrieved” confirms that Scottish practice on these matters “is, or should be, in line with that south of the border”.

Implementation of the EIA and SEA Directives in Scots law

Lord Reed also considered whether there required to be an SEA for the WPR. That depended on: “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).” These questions are answered as in the negative, on the basis that the WPR was a “project” under a specific development.  That the decision to construct the Fastlink was not within the scope of the SEA Directive appeared to Lord Reed to be consistent with a purposive interpretation of the Directive as it did not alter the framework for future development consents of a project.

Remedies

Lord Carnwath sought to clarify the position surrounding the rules relating to environmental assessment, in European and domestic law. Observing that breach of the SEA Directive or related domestic provisions was not a statutory ground for challenging a subsequent scheme or order under the 1984 Act, he suggested that such a right of challenge may have been considered unnecessary due to the availability of judicial review to challenge a plan or programme in breach of the SEA Directive. Referring to Berkeley v Secretary of State for the Environment (No. 1) [2001] 2 AC 603, Lord Carnwath approved numerous subsequent authorities which state that the speeches in Berkeley, which refer to the courts’ discretion being very narrow in the case of orders or actions taken contrary to European provisions, should be read in the context of that case. His Lordship went on to state that “even if…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”.

Lord Carnwath also considered the issue of whether schemes or orders adopted under the 1984 Act which breach SEA procedure in some way at an early stage should automatically be “nullified”, as some earlier cases may appear to suggest (R (Wells) v Secretary of State for Transport, Local Government and the Regions (C-201/02) [2004] ECR I-723 and Inter-Environnement Wallonie ASBL v Region Wallonie (Case C-41/11) [2012] 2 CMLR 623). His Lordship suggested that the principles of effectiveness and proportionality mean that the courts could adopt the same approach as usually adopted in domestic cases regarding procedural requirements, despite the requirement arising from a European rather than domestic source. The door is left open for further argument as to whether “the factors covering the exercise of the court’s discretion are materially affected by the European source of the environmental assessment regime”.