Marco Mcginty V. The Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lord Kingarth,Lord Brodie,Lord Clarke |
| Judgment Date | 13 September 2013 |
| Neutral Citation | [2013] CSIH 78 |
| Court | Court of Session |
| Date | 13 September 2013 |
| Published date | 13 September 2013 |
| Docket Number | P1225/09 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| [2013] CSIH 78 | |
| Lord Clarke Lord Brodie Lord Kingarth | P1225/09 OPINION OF THE COURT delivered by LORD BRODIE in the cause MARCO McGINTY Petitioner and Reclaimer; against THE SCOTTISH MINISTERS Respondents: _______________ |
Act: Smith QC; Drummond Miller LLP, for Patrick Campbell & Co, Solicitors
Alt: Moynihan QC, Douglas Ross; Scottish Government Legal Directorate
13 September 2013
Introduction
The parties and the National Planning Framework
[1] The petitioner resides in Largs, some five miles from the coastal site at Hunterston, Ayrshire, which is presently occupied by a bulk handling terminal and marine construction yard ("the Hunterston site"). The petitioner is a keen birdwatcher who visits the inter-tidal mudflats in the vicinity of Hunterston there to pursue his hobby. He is a member of the Royal Society for the Protection of Birds ("RSPB"). The mudflats are part of the Portencross Coast site of special scientific interest. The petitioner wishes the mudflats to be preserved as a habitat for birds. Separately, he has concerns over the harmful effects of carbon dioxide emissions consequent upon industrial processes and would wish such emissions minimised. He questions the need for a further thermal power station in Scotland.
[2] The respondents are the Scottish Ministers. In terms of section 3A of the Town and Country Planning (Scotland) Act 1997 they are responsible for preparing and publishing a spatial plan for Scotland to be known as the "National Planning Framework". The purpose of the National Planning Framework is to set out in broad terms (for the time being) how the respondents consider that the development and use of land could and should occur. It must contain a strategy for Scotland's spatial development and a statement of what the respondents consider to be the priorities for that development. Among other matters that it may contain, the National Planning Framework may describe a development and designate it a "national development". In the event that the National Planning Framework contains such a designation it must further contain a statement by the respondents of their reasons for considering that there is a need for the national development in question: 1997 Act section 3A(5)(a).
The National Planning Framework for Scotland 2: consultation and adoption
[3] In terms of section 3B(1) of the 1997 Act, the respondents must lay the proposed National Planning Framework before the Scottish Parliament and they are not to complete their preparation of the Framework until the period for parliamentary consideration his expired. In terms of section 3B(3), in preparing or revising the Framework the respondents are to have regard to any resolution or report of, or of any committee of, the Scottish Parliament made during the period for parliamentary consideration. However, as appears from sections 3B and 3C of the 1997 Act, notwithstanding the provisions for parliamentary consideration, responsibility for deciding upon the final terms of the National Planning Framework for Scotland and its adoption lies with the respondents.
[4] A National Planning Framework, entitled National Planning Framework for Scotland 2 ("NPF2") was laid before the Scottish Parliament and published by the respondents on 25 June 2009. NPF2 described and designated, inter alia, the project for a new clean coal-fired power station, container transhipment hub, maritime construction and decommissioning yard, and associated energy and industrial development at Hunterston ("the Hunterston project") as a national development in terms of section 3A(4)(b) of the 1997 Act (see NPF2, paragraph 105, item 9 and annex 9).
[5] Section 3A(10) of the 1997 Act envisages that the preparation or review of a National Planning Framework will proceed on the basis of consultation and that this consultation will involve the public at large. Separately, the Environmental Assessment (Scotland) Act 2005 makes provision for the evaluation of and the consultation on qualifying plans and programmes. The 2005 Act was intended to transpose Directive 2001/42/EC (otherwise the Strategic Environmental Assessment Directive or "SEA Directive") into domestic law. NPF2 is an example of such a qualifying plan or programme. The respondents are the responsible authority in relation to NPF2.
[6] Section 12 of the 2005 Act provides that any qualifying plan or programme shall not be adopted before the requirements of Part 2 of the Act (sections 14 to 17) have been met. Section 14 requires the responsible authority to secure the preparation of an environmental report in relation to any qualifying plan or programme which shall identify, describe and evaluate the likely significant effects on the environment of implementing the qualifying plan or programme and the reasonable alternatives to the qualifying plan or programme. Section 16 makes provision for consultation on the qualifying plan or programme and the environmental report. That includes the requirement in section 16(2)(a) that the responsible authority secure publication of a notice containing certain specified information in relation to a qualifying plan or programme. In terms of section 16(4) publication of that notice shall be by such means (including publication in at least one newspaper circulating in the area to which the qualifying plan or programme relates) as will ensure that the contents of the notice are likely to come to the attention of the public affected by or likely to be affected by or having an interest in the qualifying plan or programme. Section 17 requires that in the preparation of a qualifying plan or programme the responsible authority shall take into account, inter alia, the environmental report and every opinion expressed in response to the invitation made in the section 16(2)(a) notice.
[7] The respondents consulted on the scope of NPF2 from October 2007. A discussion draft NPF2 was issued in January 2008 with a consultation period from 8 January until 15 April 2008 (a period of 13 weeks). Accompanying that draft there was issued the National Planning Framework 2 SEA (Strategic Environmental Assessment) Environmental Report January 2008. The draft was revised in the light of responses to the discussion draft and a revised NPF2 was published in December 2008 and thereafter considered by the Scottish Parliament between 12 December 2008 and 6 March 2009.
[8] The discussion draft NPF2 issued in January 2008 did not include the Hunterston project as a proposed national development. The first reference by the respondents to the Hunterston project in a document forming part of the consultation process on NPF2 was in the National Planning Framework 2 SEA (Strategic Environmental Assessment) Supplementary Assessment of the Environmental Effects of Candidate National Developments Environmental Report consultation paper ("the Supplementary Assessment") which was published on the National Planning Framework website on 19 September 2008. This included 52 potential national developments with the Hunterston project listed at number 29.
[9] Because NPF2 and, in particular, its designation of possible developments as national developments, constitute a qualifying plan or programme, the modification of the discussion draft NPF2 by the addition of further candidate national developments through publication of the Supplementary Assessment in September 2008 also constituted a qualifying plan or programme to which Part 2 of the 2005 Act applied.
[10] About the time of the publication of the Supplementary Assessment, two further documents were published on the National Planning Framework website: "NPF2, SEA Guide" and a newsletter. These two documents drew attention to the Supplementary Assessment and requested responses to it by 31 October 2008. The Supplementary Assessment was also advertised by entries in the Edinburgh Gazette on 9 and 23 September 2008. A six-week period was allowed within which to express opinions.
The petition for judicial review: procedural history
[11] By way of amended petition for judicial review the petitioner seeks (a) reduction of NPF2 insofar as it designates a new clean coal fired power station and container transhipment hub at Hunterston as a national development; alternatively (b) reduction of NPF2; and (c) a protective order for expenses. The petitioner's complaint relates to the consultation process leading up to the publication of NPF2 on 25 June 2009. He contends that the designation of the Hunterston project as a national development was unlawful because the statutory requirements for consultation with the public prior to designation, as contained in Part 2 of the 2005 Act, were not complied with. His particular focus is on the Supplementary Assessment and what followed on its publication in September 2008.
[12] First orders in the petition (then at the instance of the present petitioner and one other) were granted on 24 September 2009 with a first hearing being fixed for 18 December 2009. On that day the petition called before Lady Dorrian when she allowed a minute of amendment for the petitioner to be received and proceedings to be abandoned in respect of the second named petitioner. She also heard parties on the petitioner's application for a protective and restricted expenses order. Lady Dorrian made avizandum. The petition called by order before Lady Dorrian on 28 January 2010 when she made a protective expenses order restricting in advance the amount of the respondents' expenses for which the petitioner could be found liable in the event that the petition is unsuccessful to an amount not exceeding £30,000. She also made an order that in the event that the petition is successful, the petitioner's expenses recoverable from the respondents be restricted to the expenses of an agent and one senior counsel acting without a junior. She refused leave to reclaim. She continued the first...
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