William Walton+john Weir Fraser+mrs Maggie Fraser Against A Decision Made By The Scottish Ministers Dated 21 December 2009 From The Director Of Transport
| Jurisdiction | Scotland |
| Judge | Lord Tyre |
| Neutral Citation | [2011] CSOH 131 |
| Date | 11 August 2011 |
| Court | Court of Session |
| Published date | 10 August 2011 |
| Docket Number | XA53/10 |
| OUTER HOUSE, COURT OF SESSION [2011] CSOH 131 | |
| XA53/10 XA56/10 | OPINION OF LORD TYRE in appeals under Schedule to the Roads (Scotland) Act 1984 WILLIAM WALTON and JOHN WEIR FRASER and MRS MAGGIE FRASER Appellants; against A decision made by the Scottish Ministers and as contained in a letter dated 21 December 2009 from the Director of Transport, Transport Directorate, the Scottish Government to the Chief Executive of Transport Scotland, 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: ____________ |
Appellant (Walton): Gale QC, Munro; Drummond Miller LLP
Appellants (Frasers): O'Neill QC, Pirie; Drummond Miller LLP
Respondents (Scottish Ministers): Mure QC, Drummond; Scottish Government Legal Directorate
11 August 2011
Introduction
[1] These two appeals, which I heard together, were brought to this court under Schedule 2 to the Roads (Scotland) Act 1984. They concern a decision of the Scottish Ministers ("the respondents") to make a number of special road orders, trunk road orders, special road schemes, side road orders, detrunking orders, a redetermination order and a rights of way order all in connection with the construction of an Aberdeen Western Peripheral Route ("AWPR"). The respondents' decision was published on 21 December 2009 and followed upon a public local inquiry held at Aberdeen on various dates in 2008. The report of the inquiry, including the Reporters' conclusions and recommendations, was published on 30 June 2009. For the reasons set out in the opinion which follows, I have decided that both appeals should be refused.
Trunk roads and special roads: the statutory framework
[2] Section 2 of the Roads (Scotland) Act 1984 imposes a duty upon the respondents to manage and maintain trunk roads and "special roads" (a term originally intended to refer to motorways) in Scotland. Under section 5, the respondents are obliged to keep under review the trunk road system and, if satisfied after taking into consideration the requirements of local and national planning, including the requirements of agriculture and industry, that it is expedient for the purpose of extending, improving or reorganising that system, may direct that any existing or proposed road shall become a trunk road. Section 7 of the Act empowers a roads authority to obtain authorisation of a scheme to provide a special road by means either of construction or appropriating an existing road as a special road. Where (as in the present case) the roads authority for the special road are the respondents, they must, before making such a scheme, give due consideration to the requirements of local and national planning and to the requirements of agriculture and industry. Under section 143A of the Act (inserted in 2007), the respondents may direct that a proposed trunk road would constitute a "national development", in which case the statutory instrument which contains an order under section 5 shall be laid before the Scottish Parliament for approval.
[3] Section 20A of the 1984 Act is a key statutory provision in these proceedings. In its original form, this section was inserted into the 1984 Act in 1988 to implement obligations imposed by European Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment ("the EIA Directive"). In its current form it imposes a duty upon the respondents to publish, not later than the date when details of such a project are published, an environmental statement for the project. The 1985 Directive was amended in 1997 (by Council Directive 97/11/EC) and again in 2003 (by Directive 2003/35/EC, the "Public Participation Directive"). The 2003 amendment is of particular importance as its stated objective was to contribute to the implementation of obligations of the European Community arising under the Aarhus Convention dated 25 June 1998 on, inter alia, public participation in decision-making in environmental matters. Amendments were made to section 20A in 1999 (by SSI 1999/1) and again in 2006 (by SSI/2006/614). According to the executive note which accompanied the latter Regulations, their objective was to transpose into national legislation the amendment of the EIA Directive by the Public Participation Directive. There was dispute between the parties as to whether this had in fact been achieved by the 2006 Regulations but it was common ground that if full and effective transposition had not been achieved, the appellants could rely upon the direct effect of the EIA Directive as amended. Section 20A, as thus amended, contains detailed provisions for publication by the respondents of the environmental statement. Their purpose is to ensure that members of the public who are likely to be concerned are given a reasonable opportunity to express an opinion on it before the respondents decide whether or not to proceed with the project.
[4] Parts I and II of Schedule 1 to the 1984 Act contain detailed provisions regarding the publication and service of notices of proposed orders and schemes under the Act regarding trunk roads and special roads respectively. Concurrent proceedings may be taken for trunk road and special road schemes, and also for such schemes and for compulsory acquisition of land (1984 Act, section 111 and Schedule 1, paragraph 17). If an objection is received from a person upon whom a notice required to be served, or from any other person appearing to the respondents to be affected, and the objection is not withdrawn, a public local inquiry must be held (paragraphs 5 and 11). After considering the report of the person who held the inquiry, the respondents may make or confirm the order either without modification or subject to such modifications as they think fit (paragraph 7(1)). Any opinion on the environmental statement which has been expressed timeously must be taken into consideration by the respondents when deciding whether to proceed with the project (1984 Act, Schedule 1, paragraphs 7(1A), 13(1A)).
[5] In addition to the express provisions of paragraphs 5 and 11 of Schedule 1, section 139 of the 1984 Act permits the respondents to hold an inquiry in connection with any matters as to which they are authorised to act or which they are required to determine under the Act.
[6] Following an inquiry, where a scheme or order has been made or confirmed by the respondents or (as the case may be) approved by the Scottish Parliament under section 143A, it must be published in the Edinburgh Gazette. Any person aggrieved by the scheme or order who desires to question its validity, on the grounds that it is not within the powers of the 1984 Act or that any statutory requirement has not been complied with, may appeal within six weeks to the Court of Session. The court, if satisfied that the scheme or any provision contained in it is not within the powers of the Act or that the interests of the applicant have been substantially prejudiced by failure to comply with any statutory requirement, may quash the scheme or order or any provision contained in it, either generally or in so far as it affects the property of the applicant.
Aberdeen Western Peripheral Route: a brief factual background
[7] Having summarised the statutory framework for the construction of a road such as the AWPR and the procedure for objections and appeals, I turn now to set out briefly the historical background to the scheme and orders whose validity is under challenge. The concept of a peripheral route to the west of Aberdeen (a "WPR") has been under consideration for many years, with some possible routes having been explored during the 1970s and 1980s. Serious consideration of the potential for a scheme began in the 1990s when Grampian Regional Council investigated improvements to reduce the high volumes of traffic in the centre of Aberdeen and on the A90 and associated radial roads. The need and support for a WPR was subsequently reflected in the Grampian Structure Plan 2007 and in the local transport strategies of both Aberdeen City Council and Aberdeenshire Council. In 2001, the North East of Scotland Transport Partnership (NESTRANS) was established to promote an integrated transport system for the north east of Scotland based on the results of an appraisal of transport proposals undertaken using the Scottish Transport Appraisal Guidance (STAG appraisal). The WPR was highlighted in the STAG appraisal as a key element in an integrated transportation strategy which became known as the Modern Transport System (MTS), published by NESTRANS in March 2003. The WPR component of the MTS was renamed the AWPR and in April 2003, the respondents announced that the proposed scheme would be promoted by the Scottish Executive as a trunk road within a funding partnership of the Scottish Executive, Aberdeen City Council, and Aberdeenshire Council.
[8] At various times during this protracted gestation period, preferred corridors had been identified for particular sections or legs of the WPR/AWPR. In 1994, a corridor crossing the River Dee near Murtle of Camphill had been identified as the preferred route for the western leg between the A90 at Charleston and the A96. Following public consultation in 2002, a similar corridor was identified in the MTS in 2003 as the preferred corridor for this leg. At the time of the announcement by the respondents in April 2003 that the AWPR would be promoted as a trunk road the preferred corridor did not include a link to Stonehaven, although it may be noted that a link between Peterculter and Stonehaven had figured as one of the options under consideration in 1994.
[9] The Murtle route which was the preferred route according to the MTS had certain sensitivities, notably its impact on the Camphill...
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