Marco Mcginty V. The Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lord Brailsford |
| Neutral Citation | [2011] CSOH 163 |
| Date | 04 October 2011 |
| Docket Number | P1225/09 |
| Court | Court of Session |
| Published date | 04 October 2011 |
| OUTER HOUSE, COURT OF SESSION [2011] CSOH 163 | |
| P1225/09 | OPINION OF LORD BRAILSFORD in the Petition of MARCO McGINTY Petitioner; against THE SCOTTISH MINISTERS Respondents: ________________ |
Petitioner: Smith, Q.C.; Drummond Miller
Respondents: Johnston, Q.C.; Scottish Government Legal Directorate, Litigation Division
4 October 2011
[1] The petitioner resides in Largs. The respondents are the Scottish Ministers. In this petition for judicial review the petitioner seeks (a) reduction of National Planning Framework for Scotland 2 ("NPF2") insofar as it designates a new power station and transhipment hub at Hunterston as a national development specified in Item 9 of the Annex to NPF2 or, alternatively, (b) reduction of NPF2.
[2] These proceedings were taken to Avizandum on 19 November 2010 and thereafter I was made aware that the decision of the First Division in Axa General Insurance Limited and others v The Lord Advocate and others [2011] SLT 439, had been appealed to the Supreme Court, I delayed issuing my Opinion to await the decision of the Supreme Court in that appeal but as of the date of issue of this opinion it has not been forthcoming. On 7 July 2011 and as recently as 5 September 2011, I heard parties' By Order on whether or not the issue of this Opinion should be further delayed to allow the Supreme Court decision in Axa to be issued, for parties to consider same and whether or not I required to be further addressed in the light of that Opinion. Parties agreed that I should proceed to issue my Opinion rather than delay its issue further.
[3] The case came before me for a continued first hearing on 16 November 2010 in which the respondents argued that the petition was irrelevant et separatim lacking in specification and should be dismissed. They also argued two preliminary pleas, maintaining that the petitioner had no title to sue and, further, that the petitioner was barred by mora, taciturnity and acquiescence in insisting in the petition.
[4] The procedural history of the petition is somewhat unusual and should be mentioned. An order for a first hearing was made on 24 September 2009, assigning 18 December 2009 as the date of that hearing. The matter called for a first hearing on that date before Lady Dorrian. The only substantive matter argued at the first hearing was an application by minute for the petitioner in which he sought a protective and restrictive expenses order. Following this hearing on 28 January 2010 Lady Dorrian made a protective and restricted expenses order limiting the amount of the respondents' expenses for which the petitioner could be found liable in the event that the petition was unsuccessful. The sum to which Lady Dorrian restricted the petitioner's potential liability in expenses was £30,000. This order was made on the basis that the issues raised in the petition were of general public importance, that the public interest required determination of the matters at issue, that the applicant had no private interest in the outcome of the case and that resolution of the proceedings should not be prevented by reason of lack of funds on the part of the petitioner.
[5] Before turning to narrate the arguments advanced on behalf of the parties, I should at this stage make one general observation. As I have already indicated two preliminary pleas, no title to sue and mora, taciturnity and acquiescence were taken and insisted upon by the respondents. At the outset of the continued first hearing it was accepted by counsel for both the petitioner and the respondents that these pleas were potentially determinative of the petition. Notwithstanding that fact, the pleas remained outstanding when the case called before me for a second hearing. I was concerned with this state of affairs and required counsel to address me on the matter before commencing the substantive hearing. I was advised by both counsel that parties were prepared, and indeed wished to proceed to a hearing on all issues outstanding in the petition. Considerable preparation had been undertaken for the hearing. There were a very significant number of productions lodged, albeit that thanks to the co-operation of parties, the form in which productions were lodged was as a joint or agreed bundle of documents (no. 16 of Process). Senior counsel for the petitioner also submitted to me at this stage that determination of the preliminary pleas would require consideration of wider issues germane to the substantive issue in the petition. Senior counsel for the respondents took a narrower approach and, at least insofar as the plea of no title to sue was concerned, appeared to accept that the matter might be determined without undue reliance on material relative to the substantive issue in the petition. In these circumstances I was faced with the difficult issue of insisting that the preliminary pleas be dealt with before consideration of wider matters and thereby reducing the amount of Court time involved in the hearing or, in the alternative, allowing all matters to be advanced at the expense of a considerably longer hearing part of which, dependent on the view I reached in relation to the preliminary pleas, might prove to be otiose. With some considerable reluctance and hesitation I decided to adopt the latter course and permit a hearing on all outstanding matters. I will return this issue at a later stage in this Opinion.
[6] The legislative background to this matter is that under and in terms of section 3A of the Town and Country Planning (Scotland) Act 1997 ("the 1997 Act") the respondents are responsible for preparing and publishing a National Planning Framework for Scotland. The relevant parts for present purposes of section 3A are in the following terms:
"(2) The National Planning Framework is to set out in broad terms how the Scottish Ministers consider that the development and use of land could and should occur. ...
(4) The framework may ...
(b) describe ...
(i) a development and designate it, or
(ii) a class of development and designate each development within that class, a 'national development'; and
(c) contain any other matter which the Scottish Ministers consider it appropriate to include.
(5) If the framework contains a designation under sub-section (4)(b), the framework -
(a) must contain a statement by the Scottish Ministers of their reasons for considering that there is a need for the national development in question, and
(b) may contain a statement by the Scottish Ministers as regards other matters pertaining to that designation."
Section 25 of the 1997 Act provides, inter alia;
"(1) Where, in making any determination under the Planning Acts, regard is to be had to the development plan, the determination is, unless material considerations indicate otherwise -
(a) to be made in accordance with that plan, and
(b) if the development in question is a national development, to be made in accordance with any statement under Section 3A(5) which -
(i) relates to that national development,
(ii) is expressed as applying for the purposes of development management, and
(iii) is to the effect that the development in question (or a development such as the development in question) could and should occur.
(2) For the purposes of paragraph (b) and sub-section (1) -
(a) statements in the National Planning Framework which do not fall within sub-paragraphs (i) and (ii) of the paragraph are to be treated as 'material considerations' ..."
Directive 2001/42/EC relates to the assessment of the effects of certain plans and programmes on the environment. Article 3.2 states;
"... an environment assessment shall be carried out for all plans and programmes (a) which are prepared for ... energy ... transport ... Town and Country Planning or land use and which set the framework for future development consents of projects listed in Annexes I and II to Directive 85/337/EEC or (b) which in view of the likely effect on sites, have been determined to require an assessment pursuant to Article 6 or 7 of Directive 92/43/EEC."
Article 4.1 of the 2001 Directive states:
"The environmental assessment referred to Article 3 shall be carried out during the preparation of the planner programme and before its adoption or submission to the legislative procedure."
Article 5.1 of the 2001 Directive states:
"Where an environmental assessment is required ... an environmental report shall be prepared in which the likely significant effects on the environment of implementing the plan or programme, and reasonable alternatives taking account of the objectives and the geographical scope of the plan or programme, are identified, described and evaluated. The information to be given for this purpose is referred to in Annex 1."
Article 6.1 of the 2001 Directive provides:
"The draft plan or programme and the Environmental Report prepared in accordance with Article 5 shall be made available to the authorities ... and the public."
Article 6.2 of the 2001 Directive provides:
"The authorities referred to in paragraph 3 and the public referred to in paragraph 4 shall be given an early and effective opportunity within appropriate time frames to express their opinion on the draft plan or programme and the accompanying environmental report before the adoption of the plan or programme or its submission to the legislative procedure."
Article 6.4 of the 2001 Directive provides:
"Member states shall identify the public for the purposes of paragraph 2, including the public affected or likely to be affected by, or having an interest in, the decision making subject to this Directive ...."
Annex 1 of the 2001 Directive provides:
"The information to be provided under Article 5(1) subject to Article 5(2) and in (3) is the following: (c) the environmental characteristics of areas likely to be significantly affected; ... (h) an outline of the reasons for selecting the alternatives dealt with, and a description of how the assessment was...
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