Inner House refuses legal challenge to the Aberdeen Western Peripheral Route

Scotland
The Court of Session has refused the appeal of an objector to the Aberdeen Western Peripheral Route road scheme (AWPR). The Court found all the grounds of challenge to be misconceived. The Court also doubted whether the objector was entitled to bring the legal challenge and stated that even if the objector's case had been upheld the Court would not have quashed the roads orders.

Background

In March 2010 the Scottish Parliament approved a series of roads orders (the Orders) made by the Scottish Ministers in December 2009 and necessary to implement the AWPR. This was, so it seemed, the end of a long statutory process. The final decision on the preferred route had been announced in May 2006 and a public inquiry was held in late 2008 and reported in June 2009.

However, in May 2010 objectors to the AWPR applied to the Court of Session to quash the Scottish Minister's decision to make the Orders (the Application). The Application was made under Schedule 2 of the Roads (Scotland) Act 1984 (the 1984 Act). In August 2011 Lord Tyre dismissed all the grounds of challenge and refused the Application1. An objector, Mr Walton, appealed the case to the Inner House of the Court of Session. On 29 February 2012 the Inner House refused the appeal2.

Grounds of Challenge

Mr Walton's challenge was on two grounds: first, that the decision to make the Orders was based on inadequate consultation and information; secondly, that the requirements of the Habitats Directive3; had been breached.

Consultation and public inquiry

The challenge focussed on the "Stonehaven-Fastlink Corridor" section of the chosen route. This section is a "hybrid" of two options that had been subject to extensive public consultation. Mr Walton essentially argued that because the selected hybrid option had not been the subject of specific consultation this rendered the preceding consultation process irrelevant. The Court rejected the argument and endorsed a tiered approach to decision-making. The public had been given the necessary opportunity to express opinions at the time when all route options were open, including a link to Stonehaven. The purpose of that consultation was to inform the decision on a preferred route and it was unnecessary to re-consult at each subsequent stage. The Court noted that further consultation did in fact take place following publication of the Orders and associated environmental statement. Transport Scotland had considered and responded to the representations made at that stage.

Mr Walton also challenged the remit of the 2008 public inquiry, arguing that it unfairly excluded examination of the policy and economic justification for the AWPR. Having regard to the purpose of the inquiry the Court concluded that this was "another edifice which was built on non-existent foundations"4. The inquiry was "designed to deal with the objections which had been raised by those whose rights as landowners might be affected or by public authorities, whose objections had not been withdrawn, and otherwise to provide [the Scottish Ministers] with advice on areas which they considered it would be helpful to have in relation to their decision."5; There was no legal requirement to hold an open-ended review of the policy and economic justification for the AWPR. The Court also pointedly observed that Mr Walton was clearly not a person who could have required that a public inquiry of any sort should be held.

Compliance with the Habitats Directive

The Court rejected arguments that the decision-making process did not comply with the requirements of the Habitats Directive. The appropriate assessment and the decision-makers were entitled to rely on a detailed consultant's report as to the impact of a proposed bridge on a Special Area of Conservation on the River Dee, the conclusions of which had been endorsed by Scottish Natural Heritage (SNH) and were not in fact challenged by Mr Walton. In relation to impacts on protected species the Scottish Ministers had taken the advice of SNH into account in reaching their decision and met their obligations under the Habitats Directive.

Standing of the reclaimer

The Court addressed two further issues: (i) whether the Mr Walton would be entitled to the remedy he sought even if his case was upheld and (ii) whether he qualified as a person entitled to bring the Application in the first place. Only the first issue had been raised by the Scottish Ministers but the status of Mr Walton was relevant to both issues.

The Court observed that Mr Walton was "an implacable opponent to the AWPR from its inception and . . . has sought to resist it at every opportunity and on whatever ground appeared to be open to be argued."6; He was not however directly affected by the AWPR in any way. The Application was brought under the statutory provisions of Schedule 2 of the 1984 Act which provides that a "person aggrieved" may challenge the validity of orders made under the 1984 Act. The Court may quash the relevant scheme or order if there has been a failure to comply with a legal requirement and this has "substantially prejudiced" the interests of the applicant.

Though it was not called upon to determine the question, the Court clearly did not consider Mr Walton to be a "person aggrieved". He lived some distance from the proposed route and there was no evidence that the Orders would prejudice his interests in any way. The judgement is clear that a person cannot claim to be a person aggrieved simply because they do not agree with a decision. It was important to distinguish the statutory application, based on the express wording of the 1984 Act, from standing in an application for judicial review. The recent Supreme Court judgement in the Axa7; case has broadened the basis upon which a person may claim standing to judicially review the actions of a public authority.

Separately, although related to the fact that Mr Walton's interest were not prejudiced by the Orders, the Court had no hesitation in concluding that even if any or all of Mr Walton's grounds of challenge had been upheld, it would still not have quashed the Orders: "It would have been quite inappropriate . .  that the project, whose genesis came about 30 years ago, and about which there has been a huge amount of public discussion and debate, should now be stopped from proceeding by an individual in the position of [Mr Walton]"8.

Comment

The Inner House judgement is to be welcomed for several reasons. First, and subject to any appeal to the Supreme Court, it allows the Scottish Government to proceed with an infrastructure project long recognised as crucial to the future prosperity of north-east Scotland.

Secondly, the judgement recognises limits on the role of public participation and consultation in taking forward a major project. In Lord Clarke's words: "once a project is adopted (after public participation) its environmental impact does not engage the requirement of public participation at each stage of the implementation process. To suggest otherwise . .  would be a recipe for the micro-management of the project, by public participation after the project begins to be developed and implemented, which would render the expeditious fulfilment of the project virtually unachievable."9;

Thirdly, their Lordships have re-emphasised the statutory basis of an application under the 1984 Act. It is to be hoped that future cases brought under Schedule 2 or similar statutory provisions will be by a person who is indeed "aggrieved" by the relevant decision.

Major infrastructure projects will invariably attract opponents. The AWPR has again demonstrated how an individual or small group can potentially delay major infrastructure projects consented after extensive consultation and exhaustive examination. Two years have now lapsed since the decision to approve the AWPR due to a challenge which was found to have little legal merit. As the Court observed there always another interested group involved: "those members of the public who are in favour of the project, and have been waiting for its implementation for a very long time."10;

Footnotes
1.
William Walton and John Weir Fraser and Mrs Maggie Fraser v The Scottish Ministers [2011] CSOH 131, available at
http://www.scotcourts.gov.uk/opinions/2011CSOH131.html
2.
William Walton v The Scottish Ministers [2012] CSIH 19, available at http://www.scotcourts.gov.uk/opinions/2012CSIH19.html
3. Directive 92/43/EEC of 21 May 1992 as implemented in the Conservation (Natural Habitats etc) Regulations 1994.
4. At page 19
5. At page 17
6. At page 33
7. Axa General Insurance Ltd v Lord Advocate [2011] UKSC 46, available at http://www.supremecourt.gov.uk/docs/UKSC_2011_0108_Judgment.pdf
8. At page 36
9. At page 10
10. At page 36