William Walton V. The Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lord Bonomy,Lord Clarke,Lord Philip |
| Neutral Citation | [2012] CSIH 19 |
| Court | Court of Session |
| Docket Number | XA53/10 |
| Published date | 29 February 2012 |
| Date | 29 February 2012 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Clarke Lord Bonomy Lord Philip | [2012] CSIH 19 XA53/10 OPINION OF THE COURT delivered by LORD CLARKE in the Reclaiming Motion by WILLIAM WALTON Appellant & Reclaimer; against THE SCOTTISH MINISTERS Respondents: _______ |
Alt: Mure, Q.C., Drummond, Q.C.; Scottish Government, Legal Directorate
29 February 2012
Introduction
[1] The reclaimer reclaims against an interlocutor of the Lord Ordinary, Lord Tyre of 11 August 2011 whereby his Lordship refused an application by the appellant under Schedule 2 of Roads (Scotland) Act 1984 ("the 1984 Act") in which the reclaimer challenges the validity of the respondents' decision to make a number of special road orders, trunk road orders, special road schemes, side road orders, detrunking orders, a redetermination order, and a right of ways order all in connection with the construction of an Aberdeen Western Peripheral Route (hereinafter referred to as AWPR).
[2] The application was originally brought both by an unincorporated association, known as Road Sense, whose offices were said to be at 5 Hillhead of Carnie, Skene, Aberdeenshire AB32 6SL and the reclaimer who was designed as its chairman, residing at the same address. While in statement 1 of the application, it is averred that "the appellants are persons aggrieved by the schemes and orders referred to," nothing is said in relation to the reclaimer himself, other than that he was the chairman of Road Sense, which would set up his interest in the matter. Road Sense were, in the event, at some stage, allowed to withdraw from the proceedings. In pursuing the present reclaiming motion, therefore, the reclaimer does so as a private individual who resides at the address referred to. He does not aver, and did not seek to suggest to the court, through his counsel, that he himself would suffer any particular prejudice if the measures he seeks to have quashed were brought into effect. It should be noted also that the proceedings before this court are, in effect, a statutory appeal and not a petition for judicial review. In that connection it is extremely important, in our opinion, to keep in mind the nature and the extent of the court's jurisdiction as set out in Schedule 2 of the 1984 Act. This is to be found in paragraphs 2 and 3 of the schedule. Paragraph 2 provides as follows:
"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 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 the notice is first published,
make an application as regards that validity to the Court of Session."
[3] Paragraph 3 provides:
"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." (emphasis added).
Before the Lord Ordinary, as will be seen, the reclaimer sought to attack the validity of the decision to proceed with the construction of the AWPR and the relative orders on a number of grounds. The Lord Ordinary rejected all of these grounds and refused the application. For the reason, no doubt, that before him the respondents did not take any point in relation thereto, he did not, in his judgment, deal with the question as to whether, had he found any or all of the challenges to the validity of the various orders in any respect valid, he would have exercised the discretion conferred by paragraph 3 to grant the order to quash in whole or in part, having regard to the provisions of Schedule 2, paragraphs 2 and 3. The respondents before this court have, however, taken the point that, even if all, or any, of the grounds of attack as to the various orders has been made out by the reclaimer, the court should, in the circumstances, not exercise its power under Schedule 2, paragraph 3 in the reclaimer's favour.
[4] We have, as will be seen, come to the clear conclusion that, on any view of matters, the reclaimer is not entitled, in the circumstances, to the remedy he seeks under Schedule 2, paragraph 3 but have also arrived at the conclusion that for reasons, largely the same as those given by the Lord Ordinary, the bases of the reclaimer's attacks on the validity of the orders are all misconceived.
[5] The Lord Ordinary, to whom this application was referred for decision by the Inner House, has set out, in a detailed judgment, a concise summary of the history of matters leading up to the proposal, and now decision, by the respondents to construct a peripheral route to the west of Aberdeen. Moreover this court has been favoured by both sides with very full and detailed written submissions which also cover the history, about which there is no fundamental dispute between the parties, their dispute being rather with the legal consequences of events in that history. We would, accordingly, refer to the Lord Ordinary's opinion, and the written submissions for a full account of that history and we will endeavour to confine ourselves to giving only an outline thereof, necessary to explain our decision.
Statutory Provisions
[6] Before doing so, we should refer to the relevant powers and duties which the respondents, as the appropriate roads authority, for the purposes of the 1984 Act were exercising in making the orders which are the subject of these proceedings. Under Section 2 of the 1984 Act, the appellants have a duty to manage and maintain trunk roads and special roads in Scotland. Under Section 5(2) they are obliged to keep under review the national system of routes for through traffic in Scotland 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. Under Section 7(3) of the Act the roads authority may be authorised by means of a scheme under that section to provide, along with a route prescribed by the scheme, a special road for the use of traffic of any class prescribed. By Section 7(7) before making such a scheme, the respondents shall give due consideration to the requirements of local and national planning, and to the requirements of agriculture and industry.
[7] The orders which are the subject of the present proceedings were made under the following provisions of the 1984 Act: special road schemes (under Section 7, 8(2) and 10(1)); trunk road orders (under Section 5(2)); side road orders (under Section 9) and detrunking orders (under Section 5(2) and 5(6)); Section 20A of the 1984 Act, was originally inserted 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. Subsequent amendments were made to Section 20A in 1999, and again in 2006, to transpose into national legislation amendments of the 1985 directive and provisions of the Public Participation and Access to Justice directive 2003/35/EC. As a result of the amended provisions of Section 20A(1), the respondent required to prepare the appropriate environmental statement, and public notice of it, no later than the date when the details of such a project as to which the present proceedings relate were published. Section 20A contains detailed provisions as to what must be contained in the notice. The notice must state that any person who wishes to make representations about the project, and the environmental statement, may do so in writing and that the respondents must take into consideration any such representations before deciding whether to proceed with the project. In compliance with the foregoing requirements, the respondents published an environmental statement and nontechnical summary in 2006 and 2007 at the same time as the draft schemes and orders were promulgated. The respondents also published a notice of the environmental statement in compliance with Section 20A in the Edinburgh Gazette. The reclaimer made representations in response to that notice and the respondents responded fully to those representations (see joint appendix volume 1, tabs 1 and 2).
[8] We should observe, at this point, that the 1984 Act goes on to make provision regarding the publication and service of notices of proposed orders under the Act regarding trunk roads and special roads respectively. Paragraphs 5 and 11 of Schedule 1 provide that where objections made by any person on whom a notice is required to be served, or whom it seems to the respondent would be affected by the measure, are not withdrawn then the respondents shall, subject to paragraph 6 and 12, order a public inquiry to be held. The persons upon whom notice is required to be served, apart from certain public authorities, are broadly speaking, owners of land which will be affected by the measures in question. It is a matter of concession, in the present case, that the reclaimer was not such a person and had no right to insist that a public inquiry...
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