Road Sense An Incorporated Association+william Walton, Chairman Of Road Sense, As Its Representative And As An Individual. V. Against A Decision Of Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lord Stewart |
| Neutral Citation | [2011] CSOH 10 |
| Date | 20 January 2011 |
| Docket Number | XA53/10 |
| Court | Court of Session |
| Published date | 20 January 2011 |
| OUTER HOUSE, COURT OF SESSION [2011] CSOH 10 | |
| XA53/10 | OPINION OF LORD STEWART upon Minute for the Appellants and Answers the Respondents in the Appeal under Schedule 2 to the Roads (Scotland) Act 1984 by ROAD SENSE, an unincorporated association, and WILLIAM WALTON, Chairman of Road Sense, as its representative and as an individual, Appellants; against a Decision of Scottish Ministers contained in a letter dated 21 December 2009 intimating approval of certain Schemes and Orders in connection with the Aberdeen Western Peripheral Route, and in respect of the Schemes and Orders approved by resolution of the Scottish Parliament of which intimation was given by Notices in the Edinburgh Gazette of 26 March 2010 Respondents: ________________ |
Appellants/Minuters: Findlay; Drummond Miller LLP
Respondents/Respondents: Mure QC, Drummond; Scottish Government Legal Directorate
20 January 2011
[1] This matter is about the meaning and domestic application of the access to justice provisions contained in Article 10a which was inserted into Directive 85/337/EEC on the assessment of environmental impacts [the 'EIA Directive'] by Article 3(7) of the Public Participation Directive 2003/35/EC. The implementation date was 25 June 2005. Counsel were agreed that as between the present parties the access to justice provision in question satisfies the criteria for direct effect including non-implementation and - with no apparent irony - the 'clear, precise and unconditional' requirement [cf. Sweetman v An Bord Pleanala and the Attorney General [2007] IEHC 153, § 7.1; Garner, R (on the application of) v Elmbridge Borough Council & Ors [2010] EWCA Civ 1006 at §§ 21, 32; Coedbach Action Team Ltd v Secretary of State for Energy and Climate Change [2010] EWHC 2312 (Admin) at § 10; Opinion of AG Sharpston in Trianel Kohlekraftwerk Lunen [2010] EUECJ C-115/09 (16 Dec 2010).] I say 'irony' because Counsel then debated the meaning for one-and-a-half days. Neither party, however, wishes the matter to be referred to the European Court of Justice [cf. R (on the application of Edwards and Another) v Environment Agency and Others [2010] UKSC 57 (15 Dec 2010.)] No devolution issue has been raised in terms of Rule 25A. In deference to the lucid and informative submissions of Counsel I have dealt with the matter at length while recognising that, because of developments elsewhere, my Opinion as to the wider issues will be as if writ upon water.
[2] The matter comes before me by virtue of an incidental application in the course of a statutory appeal by the Road Sense pressure group. The Appeal is against a decision by the Scottish Ministers as trunk and special roads authority in terms of the Roads (Scotland) Act 1984. Road Sense and their office-bearers want to limit their financial exposure in the Appeal and have now applied by Minute in the Appeal process for a Protective Expenses Order [PEO.] The Scottish Ministers have lodged Answers to the Minute. The issues between parties on the Minute and Answers, which I have been asked to decide, are whether, in implementation of the access to justice provision of the EIA Directive 85/337/EEC as amended, Article 10a, the Court should make a PEO in favour of Road Sense and, if so, what the amount of the protective expenses cap should be.
[3] The subject-matter of the substantive proceedings is the Scottish Ministers' proposal for the Aberdeen Western Peripheral Route [AWPR] consisting of a new four lane highway on a designated route that would loop around the west and north of the city of Aberdeen connecting with the existing A90 highway, south of Aberdeen, at Stonehaven, and north of Aberdeen, at Potterton. The AWPR has a branch into the city south of the River Dee. The original published draft Schemes and Orders for the construction of the AWPR were subject to a three-month public inquiry, from 9 September to 10 December 2008, conducted by reporters appointed by the Scottish Ministers. Road Sense participated in the public inquiry and were represented throughout by Counsel. The Report of the Inquiry proposed certain modifications. By letter dated 21 December 2009 issued by the Scottish Transport Directorate, the Scottish Ministers notified their decision to make the Schemes and Orders with a number of modifications. The Schemes and Orders, as modified, were then subject to an affirmative resolution of the Scottish Parliament. Notices to that effect were published in the Edinburgh Gazette on 26 March 2010.
[4] The fact that the AWPR has four lanes is legally significant: 'construction of a new road of four or more lanes' is one of the kinds of project for which environmental impact assessments are mandatory in terms of the EIA Directive 85/337/EEC, as amended, Article 4 and Annex 1, paragraph 7(c), given domestic effect by the Environmental Impact Assessment (Scotland) Regulations 1999 (No 1), regulations 2, 3 and Schedule 1 paragraph 7(3); and environmental assessment brings the relative decision-making process within the public participation and access to justice provisions of the EIA Directive 85/337/EEC, as amended, by virtue of Articles 2, 6 and 10a.
[5] The Article 10a access to justice provisions have become germane because Road Sense through their Chairman William Walton are now appealing to the Court of Session against the decision of the Scottish Ministers to proceed with the modified AWPR proposal as notified in the letter of the 21 December 2009 etc. The Appeal has been remitted for a hearing in the Outer House. The hearing has been fixed for 22 February 2011 and subsequent days. Article 10a provides that procedures such as the present Appeal should be 'not prohibitively expensive.'
Legislative framework
[6] The Public Participation Directive 2003/35/EC implements the United Nations Economic Commission for Europe [UNECE] Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus, Denmark, on 25 June 1998 ['the Aarhus Convention.'] I am told that the Convention was ratified by the European Community on 17 February 2005 and by the United Kingdom on 23 February 2005. Provisions of the Aarhus Convention relevant to the present discussion include the following [emphasis added]:
PREAMBLE
[ ...]
Recognising also that every person has the right to live in an environment adequate to his or her health and well-being, and the duty, both individually and in association with others, to protect and improve the environment for the benefit of present and future generations.
Considering that, to be able to assert this right and observe this duty, citizens must have access to information, be entitled to participate in decision-making and have access to justice in environmental matters, and acknowledging in this regard that citizens may need assistance in order to exercise their rights.
[ ...]
Concerned that effective judicial mechanisms should be accessible to the public, including organisations, so that its legitimate interests are protected and the law is enforced.
[ ...]
Article 1
OBJECTIVE
In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention.
Article 2
DEFINITIONS
[ ...]
4. 'The public' means one or more natural or legal persons, and, in accordance with national legislation or practice, their associations, organisations or groups;
5. 'The public concerned' means the public affected or likely to be affected by, or having an interest in, the environmental decision-making; for the purposes of this definition, non-governmental organisations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest;
[ ...]
Article 3
GENERAL PROVISIONS
[ ...]
8. Each Party shall ensure that persons exercising their rights in conformity with the provisions of this Convention shall not be penalized, persecuted or harassed in any way for their involvement. This provision shall not affect the powers of national courts to award reasonable costs in judicial proceedings.
[ ...]
Article 9
ACCESS TO JUSTICE
1. Each Party shall, within the framework of its national legislation, ensure that any person who considers that his or her request for information under Article 4 has been ignored, wrongfully refused, whether in part or in full, inadequately answered, or otherwise not dealt with in accordance with the provisions of that article, has access to a review procedure before a court of law or another independent and impartial body established by law.
In the circumstances where a Party provides for such a review by a court of law, it shall ensure that such a person also has access to an expeditious procedure established by law that is free of charge or inexpensive for reconsideration by a public authority or review by an independent and impartial body other than a court of law.
[ ...]
2. Each Party shall, within the framework of its national legislation, ensure that members of the public concerned
(a) Having a sufficient interest
or, alternatively,
(b) Maintaining impairment of a right, where the administrative procedural law of a Party requires this as a precondition,
have access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of Article 6 and, where so provided for under national law and without prejudice to paragraph 3 below, of other relevant provisions of this Convention.
What constitutes a sufficient interest and impairment of a right shall be determined in accordance with...
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