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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

28 FEB 2013

Walton v The Scottish Ministers [2012] UKSC 44; (2013) PLLR 016

Environmental assessment - Strategic Environmental Assessment Directive 2001/42/EC - relationship with Environmental Assessment Directive 85/337/EC - construction of city bypass - responsibility passed to Scottish Ministers - alteration to construction scheme - whether a modification of a plan or programme, or an individual project  - consultation - common law fairness - remedies - discretion - standing

A strategic environmental assessment under Directive 2001/42/EC was not required where the Scottish Ministers assumed responsibility for the construction of a bypass and modified the scheme to include an extra link road. This was a modification of a single project, as opposed to a modification of a plan or programme.

17 October 2012

Supreme Court

Lords Hope (Deputy President), Kerr, Dyson, Reed and Carnwath

(1)        Plans for a bypass around Aberdeen had been in development since 1996. The Scottish Ministers assumed responsibility for the construction of the bypass in 2003, taking over from the relevant local authorities. Research was carried out into the most appropriate route for the bypass and environmental impact assessment were carried out. In 2006 the Ministers announced the preferred route, which was a hybrid of two previous proposals which had been the subject of consultation and environmental impact assessment, and included a new link road. The subsequent public inquiry looked only at technical issues pertaining to route choice and did not consider W's contention that the Ministers had failed to comply with the requirements of the Strategic Environmental Assessment Directive (SEA Directive)/

(2)        W, an environmental campaigner living in the area of the proposed route, challenged the scheme on the grounds that (i) the Ministers' variation of the route was a modification amounting to a plan or programme within the meaning of Article 2 of the SEA Directive and thus subject to the requirements of the Directive; and (ii) that the inquiry had breached common law principles of fairness by refusing to consider the economic, policy or strategic justification for the new link road. Further issues arose as to whether W was entitled to a remedy and whether he had standing to pursue the challenge.

(3)        Lord Reed, with whom Lords Hope, Kerr, Dyson and Carnwath agreed, held (i) that the SEA Directive is part of a body of European law designed to ensure a high level of environmental protection. Although both the SEA Directive and the Environmental Assessment Directive 85/337/EC (EA Directive) concern the requirement to conduct an environmental impact assessment, the scope of each was different: the SEA Directive was concerned with projects, whereas the EA Directive was concerned with plans and programmes. Whether the inclusion of the link road required an assessment under the SEA Directive depended on whether it amounted to a modification of a plan or programme within the meaning of Article 2 of the SEA Directive. This was not the case. The bypass was a project rather than a plan or programme, and the addition of the link road was not a modification of a legal or administrative framework. Inter-Environment Bruxelles ASBL v Region de Bruxelles-Capitale (C-567/10) [2012] CMLR 30 considered) [10] - [16]; [59] - [71]. (ii) That what amounts to a fair procedure in an inquiry depends upon the subject matter. The Ministers were not bound to include W's arguments in the inquiry: W was not someone on whom notice of the construction had been served, there was no statutory obligation to hold an inquiry into his objections and he had no legitimate expectations that the inquiry would look at the economic, policy or strategic justifications for the link road [72] - [73]. (iii) The matter of remedies deserved further consideration. Potential devolution issues arose where it was argued that the Ministers had acted in a way which was incompatible with EU law and it would be necessary to consider the relationship between the Scotland Act and the Roads (Scotland) Act 1984[77] - [81]. (Obiter) The question of whether an individual was a ‘person aggrieved' depended on the legislative context and the grounds on which the appellant relied (Arsenal Football Club Ltd v Smith (Valuation Officer) [1979] AC 1 and Lardner v Renfrew District Council 1997 SC 104 considered). In relation to statutory planning appeals the term should be given a wide definition. That the appellant has participated in the planning process can be indicative of standing, but is not always necessary. W clearly had standing: he had participated in the planning process and argued that Ministers had failed to follow fair procedure. He also lived near the affected area and was active in local environmental groups. He had demonstrated a genuine concern about the legality of consent to the development. He would have had sufficient standing to bring a common law claim for judicial review, although that claim would have failed on its merits (AXA General Insurance Ltd, Petitioners [2011] UKSC 46 considered) [84] - [88], [90 - 97].. 

Appeal dismissed.

Key Paragraphs

[1] - [2] - Introduction

[3] - [9] - The Roads (Scotland) Act 1984

[10] - [30] - The SEA Directive

[31] - [56] - The factual background

[57] - [58] - Issues arising in relation to the SEA Directive

[59] - [71] - Discussion

[72] - [73] - Common law fairness

[74] - [76] - Remedies

[77] - [81] - Discretion

[82] - Standing

[83] - [88] - A person aggrieved?

[89] - [96] - Standing to invoke the supervisory jurisdiction

[97] - Conclusion

[101] - Conclusion. 

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