Walton v Scottish Ministers

JurisdictionScotland
CourtSupreme Court (Scotland)
JudgeLord Carnwath,Lord Reed,Lord Hope,Lord Kerr
Judgment Date17 October 2012
Neutral Citation[2012] UKSC 44
Docket NumberNo 5
Date17 October 2012

[2012] UKSC 44

THE SUPREME COURT

Michaelmas Term

On appeal from: [2012] CSIH 19

Before:

Lord Hope, Deputy President

Lord Kerr

Lord Dyson

Lord Reed

Lord Carnwath

Walton
(Appellant)
and
The Scottish Ministers
(Respondent) (Scotland)

Appellant

Aidan O'Neill QC

Chris Pirie

(Instructed by Patrick

Campbell and Company Solicitors)

Respondent

James Mure QC

Lorna Drummond QC

(Instructed by Scottish

Government Legal

Directorate Litigation Division)

Heard on 9 and 10 July 2012

Lord Reed
1

In this application under paragraph 2 of Schedule 2 to the Roads (Scotland) Act 1984 ("the 1984 Act"), Mr Walton challenges the validity of schemes and orders made by the Scottish Ministers under that Act to allow the construction of a new road network in the vicinity of Aberdeen. The basis on which the schemes and orders are challenged, as ultimately argued before this court, is that the Ministers have failed to comply with the requirements of the Strategic Environmental Assessment Directive ( Directive 2001/42/EC, OJ 2001 L197/30) ("the SEA Directive"), or in any event with common law requirements of fairness. In the light of observations made by the Extra Division of the Inner House of the Court of Session ( Walton v Scottish Ministers [2012] CSIH 19), it will also be necessary to consider questions relating to remedies. These include the question whether, even if a failure to comply with the directive were established in the present case, Mr Walton should in any event be denied a remedy; and whether he is entitled to bring the application, or would have the necessary standing to seek an alternative remedy.

2

It will be necessary to examine in detail the facts bearing upon these legal issues. It may however be helpful at the outset to explain the relevant provisions of the 1984 Act and of the directive.

3

The 1984 Act distinguishes between two different types of roads authority with different functions: a distinction which is apparent, in particular, from the definition of "roads authority" in section 151(1). On the one hand there are local roads authorities, which are responsible for roads and proposed roads in their area other than roads for which the Secretary of State or the Ministers are the roads authority. The local authority for a given area are also the local roads authority for that area. They have the power to construct new roads, other than special roads (defined by section 151 as roads provided or to be provided under section 7), in accordance with section 20.

4

On the other hand there are the Secretary of State and the Ministers. The Secretary of State is the roads authority as respects functions relating to the matters reserved by the relevant provisions of the Scotland Act 1998 and exercisable in relation to trunk roads, special roads or other roads constructed or to be constructed under section 19 of the 1984 Act. The Ministers are the roads authority as respects any other functions exercisable in relation to any such roads, as the result of the transfer of functions from the Secretary of State effected by section 53 of the Scotland Act. As roads authority, the Ministers have functions under sections 5 and 7 of the 1984 Act which are relevant to the present case.

5

Section 5(2) provides:

"The Secretary of State shall keep under review the national system of routes for through traffic in Scotland, and if he is 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 either—

(a) that any existing road, or any road proposed to be constructed by him, should become a trunk road, or

(b) that any trunk road should cease to be a trunk road,

he may by order direct that the road shall become, or as the case may be shall cease to be, a trunk road as from such date as may be specified in that regard in the order."

6

Section 7 provides:

"(3) A roads authority may be authorised by means of a scheme under this section to provide, along a route prescribed by the scheme, a special road for the use of traffic of any class so prescribed."

7

It is also relevant to note a number of other provisions of the 1984 Act. Section 20A requires the Ministers to carry out an environmental assessment where they have under consideration the construction of a new road for which they are the roads authority, and they consider that the project falls within the scope of the Environmental Assessment Directive (Directive 85/337/EEC, OJ 1985, L 175/40) ("the EIA Directive"). They must, in particular, prepare an environmental statement and publish notice of it. The notice must state that any person wishing to make any representations about the project and the environmental statement may do so, and that the Ministers will take any such representation into account before deciding whether to proceed with the project (section 20A(5A). Section 139 permits the Ministers to hold an inquiry in connection with any matters as to which they are authorised to act under the Act.

8

The procedures for making orders under section 5 are set out in Part I of Schedule 1 to the Act. They include the publication of the proposed order, an opportunity for any person to object to the making of the order (paragraph 1), and the holding of an inquiry in the event that an objection is received from any person appearing to the Ministers to be affected or from any of a specified group of persons, such as the relevant local authority (paragraph 5). The Ministers are required to take into account the report of the person who held the inquiry. Where an environmental statement has been published, they must also take into consideration any opinion on that statement or the project expressed by any person in writing (paragraph 7). Analogous procedures are prescribed by Part II of Schedule 1 in relation to the making of schemes under section 7.

9

Schedule 2 to the 1984 Act is relevant to the issues in this appeal relating to remedies. Paragraphs 2 to 4 provide:

"2. If any person aggrieved by the scheme or order desires to question the validity thereof, or of any provision contained therein, on the grounds that it is not within the powers of this Act or that any requirement of this Act or of any regulations made thereunder has not been complied with in relation to the scheme or order, he may, within six weeks of–

(a) the date on which the notice required by paragraph 1 above is first published; or

(b) in a case where a notice under paragraph 1A above is required, the date on which that notice is first published,

make an application as regards that validity to the Court of Session.

3. On any such application the Court—

(a) may by interim order suspend the operation of the scheme or order or of any provision contained in it, either generally or in so far as it affects any property of the applicant, until the final determination of the proceedings; and

(b) if satisfied that the scheme or order or any provision contained in it is not within the powers of this Act or that the interests of the applicant have been substantially prejudiced by failure to comply with any such requirement as aforesaid, 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.

4. Subject to paragraph 3 above, a scheme or order to which this Schedule applies shall not, either before or after it has been made or confirmed, be questioned in any legal proceedings whatever, and shall become operative on the date on which the notice required by paragraph 1 above is first published or on such later date, if any, as may be specified in the scheme or order."

10

The SEA Directive forms part of a body of EU legislation designed to provide a high level of protection for the environment, in accordance with article 191 of the Treaty on the Functioning of the European Union and article 37 of the Charter of Fundamental Rights of the European Union. It is complementary, in particular, to the EIA Directive. Both directives impose a requirement to carry out an environmental assessment, but they are different in scope.

11

The EIA Directive was adopted in 1985 and required to be implemented by July 1988. It has been amended significantly by further directives, including the Public Participation Directive ( Directive 2003/35/EC, OJ 2003 L156/17) ("the PPD Directive"), which gave effect to the public participation requirements of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters. The EIA Directive is concerned with the assessment of the effects of "projects" on the environment. The SEA Directive, which was adopted 16 years later, is concerned with the environmental assessment of "plans and programmes". Taken together, the directives ensure that the competent authorities take significant environmental effects into account both when preparing and adopting plans or programmes, and when deciding whether to give consent for individual projects.

12

The background to the SEA Directive, and the problem which it was designed to address, were explained by Advocate General Kokott in her opinion in Terre Wallone ASBL v Région Wallone and Inter-Environnement Wallonie ASBL v Région Wallone ((Joined Cases C-105/09 and C-110/09) [2010] I-ECR 5611, points 31–32:

"The specific objective pursued by the assessment of plans and programmes is evident from the legislative background: the SEA Directive complements the EIA Directive, which is more than ten years older and concerns the consideration of effects on the environment when development consent is granted for projects.

The application of the EIA Directive revealed that, at the time of the assessment of...

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