Access to Judicial Review and Widening the Definition of ‘Person Aggrieved’: Walton v The Scottish Ministers [2013] Env LR 16

INTRODUCTION

The case of Walton v The Scottish Ministers was the final chapter in the long-standing legal argument concerning the building of the Aberdeen City Bypass, also known as the ‘Aberdeen Western Peripheral Route’ ¹ and of a specific trunk road known as the Fastlink. Since the 1950s, there has been debate over the route, size and numerous other factors relating to the creation of this (as yet still unfinished) road. ² After a complex process deciding the layout and position, in 2006, consensus was reached by the Scottish Ministers to create both the AWPR and a trunk road connecting the road to Stonehaven – known as the Fastlink. ³ Draft orders and multiple Environmental Impact Assessments (EIAs) were created by 2007, by which time roughly 10,000 objections had been noted. ⁴ These included objections made by Mr Walton, who was also the chairman of Road Sense; a collective of people who mainly lived near the route of the AWPR and were strongly against it being built. ⁵ Both Road Sense and Mr Walton (as an individual) had submitted objections, stating that there was no need for the Fastlink and objecting to the lack of public consultation concerning the route. ⁶ In 2008, a public inquiry was held, although its scope was limited to technical aspects of the route choice rather than the need for the AWPR itself or any alternative routes. ⁷ Road Sense were a strong presence at this inquiry, with Mr Walton giving evidence stating both in his own view and that of the group that the Ministers had not complied with their obligations under the Environmental Impact or Strategic Environmental Assessment Directives. ⁸ The reasoning behind the need for the AWPR and Fastlink were based on the regional transport strategy (MTS) set up by North East of Scotland Transport Partnership (NESTRANS), which described and costed various schemes. The Minister for Transport commissioned further reports, coming to the conclusion that a hybrid between two of the schemes was the most appropriate option. In his explanation to the First Minister, he further explained that the possibility of congestion at certain areas would require the Fastlink to be built to connect the AWPR, and prevent any further issues in the area.

In March 2010, the proposal was approved by Parliament; it was promptly appealed by Mr Walton and others. ⁹ After failure in the Outer House, ¹⁰ Mr Walton alone appealed to the Inner House. ¹¹ He argued that there had been a failure to comply with the EIA and SEA Directives, ¹² with various other EU and domestic laws, and with common law fair procedure. The SEA argument turned on whether the Fastlink itself was a specific plan or programme under that Directive. The Inner House rejected all of his submissions.

During their discussion on the case, the Inner House also examined the previously unmentioned issue of whether Mr Walton was a ‘person aggrieved’ under the relevant legislation. In this case, this was the Roads (Scotland) Act 1984, Schedule 2 paragraph 2, which states:

The Inner House decided Mr Walton did not have standing even though the Scottish Ministers had only questioned whether Mr Walton should be entitled to the remedy he sought should there be found to have been a breach of the SEA Directive. ¹³ In finding that Mr Walton lacked standing, the Inner House discussed the lack of evidence that the road projects ‘substantially prejudice his interests or that they would affect his property’, mainly due to the distance he lived from the site. ¹⁴ The Inner House concluded that:

The case then proceeded to the Supreme Court, which was given the chance to decide on this important matter. Mr Walton again argued that, in deciding to build the Fastlink, the Scottish Ministers had not complied with the consultation obligations imposed by the SEA Directive. The Supreme Court also considered whether, even if there had been a breach of the Directive, it had discretion to refuse to quash the decision to build the roadway. It also considered whether Mr Walton should be considered to have been ‘a person aggrieved’ with the standing to bring such a case.

This work will discuss the conclusions that the Supreme Court came to on all points made, specifically focusing on the definition of ‘person aggrieved’ and the importance of this to both judicial review as a whole and environmental law specifically.

SUPREME COURT DECISION

During the Supreme Court case, Mr Walton argued that, in deciding to build the Fastlink, the Scottish Ministers had not complied with the consultation obligations imposed upon them by the SEA Directive, or otherwise had breached the common law of fairness. The Supreme Court also considered whether, even if there had been a breach of the Directive, it had discretion to refuse to quash the decision to build the roadway, and whether Mr Walton should be considered to have been ‘a person aggrieved’ with the standing to bring such a case. While five judges decided the case, only three – Lord Hope, Lord Reed and Lord Carnwath – gave full judgments on the decision.

(i) Compliance with the SEA Directive and Fairness

The SEA Directive requires environmental assessments to be carried out on ‘plans or programmes … which are likely to have significant environmental effects’ ¹⁶ with a list of specific plans and programmes which ‘set the framework for future development consent of projects’ in subsections (2) to (4) – including road construction. The criteria for there to be a significant effect is found within Article 3(5). However, the concept of a ‘plan or programme’ is not defined within the legislation. ¹⁷

Mr Walton raised multiple arguments in relation to breaches of the SEA Directive. The first was that the Regional Transport Strategy (MTS) used was a plan or programme, and the second, stemming from this, was that the decision to build the Fastlink was a modification to that plan or programme which, therefore, fell within the timeframe established within the Directive. He also argued that there had been no consultation on whether or not there should specifically have been a Fastlink, as required by the SEA Directive. ¹⁸

However, the Respondents argued that the MTS strategy was neither a plan nor a programme, as qualified under Article 2(a) of the Directive:

The MTS had been created by a non-statutory partnership rather than through a legislative process as stated under Article 2. ²⁰ The Respondents did agree that, should NESTRANS who prepared the MTS have been considered a statutory body, and had they created the MTS strategy after 21 July 2004 – the temporal scope of the Directive – then it would have required an SEA. ²¹ However, this had not been the case. ²² It was stated that therefore the Fastlink was not a modification and simply an ‘aspect of the implementation of an element’ of the strategy. ²³ Lord Reed's decision was based on the fact that the decision to create the Fastlink was motivated by congestion issues relevant specifically to the project (as discussed above) – dealing with one issue that had arisen in only this situation rather than using any powers or creating any future precedent, making the Fastlink neither a plan nor programme and simply a project. ²⁴ He also discussed the Court of Justice decision in Inter Environmental Bruxelles ASBL (Case C-567/10)[2012] CMLR 909, where the Court decided that the repeal of a plan or programme was a modification as ‘it changed the framework for future development consent of projects’ – which the single relevant congestion issue would not do in this case. ²⁵ While this case was not argued by either party, in Lord Reed's view the Fastlink would not be considered a plan or programme in this situation. Finally, the Supreme Court considered that an adequate amount of consultation had been held through various channels during the creation of various documents and in relation to the Fastlink and the EIA produced for it (the lack of sufficient EIA argument having been dropped by this stage).

Lord Carnwath and Lord Hope took the point a stage further, stating their belief that the MTS may not be considered a ‘plan or programme’, with Lord Hope referring to the possibility of NESTRANS not being considered an ‘authority’ under Article 2(a) as it was created, voluntarily and with no statutory powers. ²⁶ Lord Carnwath discussed the argument in Inter Environnement Bruxelles concerning similar issues surrounding the definition of a plan or programme. However, while it was concluded by all that the Fastlink was not considered a modification to a plan or programme, the Court was not required to come to a conclusion on whether the MTS itself was a plan or programme under the Directive.

Walton made further minor arguments relating to the principle of common law fairness, arguing that the public local inquiry should have to include the ‘economic, policy or strategic justification for the Fastlink’. ²⁷ Walton linked this point to the case of Bushell v Secretary of State for the Environment [1981] AC 75, which stated that ‘fair’ procedure at an inquiry will be dependant on the subject of that particular inquiry. With reference to the Bushell argument and the Roads (Scotland) Act 1984, Lord Reed stated that there was nothing to suggest either unfairness towards Mr Walton or that these issues should or were going to be included within the inquiry. ²⁸ This was supported by Lord Carnwarth in relation to a decision of the Aarhus Compliance Committee – a body set up by Article 15 of the Aarhus Convention to enforce the Convention. ²⁹ A complaint had been made by Road Sense to the Committee in 2009, specifically relating to the limited scope of the public inquiry into the AWPR. This complaint had been rejected. The Committee took the view that there had been numerous opportunities for participation and that adequate consultation had been made relating to the Fastlink. ³⁰ This decision (while not binding) also stated that the addition of the Fastlink was not a plan or programme, and simply a ‘document relating to a specific activity’ – an opinion shared by many of the Lords and discussed further previously. ³¹

(ii) Discretion

Under Schedule 2 of the Roads (Scotland) Act 1984, the Supreme Court had the discretion to decline to grant a remedy, even if they had concluded there had been a breach of the Directive:

This point had been discussed by Lord Clark in the Inner House case, having been introduced by the Scottish Ministers, and led to the debate on whether Mr Walton was a ‘person aggrieved’. It was concluded that Mr Walton did not have standing, with the further decision being that even if the court had decided in his favour, their discretion should have been used. This was due to Mr Walton's lack of position, with Lord Clark stating it would be ‘quite inappropriate’ for a decision that had been considered for this length of time and in such a public way to be quashed by one person. ³³ Before the Supreme Court, the respondents stated that, though Mr Walton was only seeking to quash the orders and schemes in so far as they applied to the Fastlink, this would cause the schemes to ‘fall in their entirety’ due to their level of integration. ³⁴ They did also accept that if there had been a ‘substantial failure’ under EU law and if Mr Walton was considered a ‘person aggrieved’ then the court should not withhold a remedy. ³⁵ This point was not debated; however, Lord Reed stated his belief that more discussion would be required on the conclusions of the Inner House. ³⁶ Lord Carnwarth discussed the issue in more detail, in relation to breaches of domestic or EU law. The Ministers had argued that if the breach had simply been one of fairness, the court would continue to have the power of discretion. ³⁷ This argument was based on the length of time the road had been debated, the lack of any other legal challenges, the amount of public money already spent and the burden of repeating processes already completed such as consultations and inquiries. Lord Carnworth summarised the position as being:

Lord Carnwarth went on to state his belief that Mr Walton had not demonstrated (or in fact argued) that his own interests were prejudiced and that, on balance, the factors argued by the respondents meant that the Supreme Court would have the discretion, and would not allow, the schemes to be quashed. ³⁹ He further discussed the issues relating to discretion and the breach of EU Directives. The argument of the respondents was based mainly on the case of Berkeley v Secretary of State for the Environment (No 1) [2001] 2 AC 603. This concerned planning permission for a site owned by Fulham Football Club, concerning a breach of the EIA Directive, where the Court was doubtful if it would be possible to use the power of discretion in a situation relating to EU law, without breaching the EC Treaty. ⁴⁰ Lord Carnwarth's judgment, however, after discussing further UK and EU case law, concluded (in an opinion shared by Lord Hope) that:

While he discussed the idea of an automatic ‘nullification’ of any scheme or order that failed to meet SEA requirements, ⁴² he suggested that European case law and legislation did not demonstrate a requirement to use a different approach than under UK law. ⁴³ This is an interesting legal point, not discussed by the other Lords within the case. It is unlikely to be the last time the point is brought up in the Supreme Court.

Lord Carnwarth went a stage further, taking the opportunity to discuss any possible remedies that would have been appropriate had Mr Walton's case been successful. ⁴⁴ He agreed that it would not be possible to deal with the Fastlink separately, and therefore quash all the orders, this being the only power given to the court under the Town and Country Planning (Scotland) Act 1997. ⁴⁵ He argued that it might have been possible to ‘salvage’ this from the earlier procedures, depending on the breach that has occurred, and made the point that statutory reform could make the powers of the court more flexible. ⁴⁶

(iii) Standing

Arguably, the most important legal argument made concerned Mr Walton's standing. This was linked to the issue of the Court declining to grant remedies. The Inner House concluded that Mr Walton did not fit the definition of an ‘aggrieved person’ as required to bring an action under the legislation, and therefore had no standing to bring the case. ⁴⁷ Lord Clarke stated that:

The Supreme Court unanimously held this obiter dictum to be incorrect, taking the opportunity to make a point on both the definition of ‘person aggrieved’ and further law of judicial review.

Lord Reed made reference ⁴⁹ to the case of Attorney General of the Gambia v N'Jie [1961] AC 617, where Lord Denning stated:

He used case law to demonstrate that the definition included people who have made objections or representations during the procedure challenged, and can often include people who have not made a challenge. ⁵¹ By making objections, living within the ‘vicinity’ of the Fastlink, being a member of Road Sense and showing an interest in the environment, he stated his opinion that Mr Walton could be considered a person aggrieved. ⁵²

He went on to refer to the Supreme Court decision Axa General Insurance Ltd & Ors v The Lord Advocate & Ors [2011] UKSC 46: a case concerning standing and asbestos-related health problems in Scotland. He referred to the previous ‘unduly restrictive approach’ of the courts (discussed more thoroughly below), and the need to appreciate the difference between a ‘busybody’ and a person with ‘reasonable concern’. ⁵³ He stated his belief that the factors that made Mr Walton a ‘person aggrieved’ would also allow him to bring a judicial review case against the Ministers’ decision. ⁵⁴ He further stated that it may not be required to demonstrate personal interest or impact to a person, as:

Lord Hope expanded upon this point, relating it to legal situations that affect the environment where the requirement was that people are ‘sufficiently concerned and sufficiently well informed’ but not necessarily personally impacted and the courts judged whether these requirements were satisfied as had occurred here. ⁵⁶

The Supreme Court thereby dismissed this appeal, allowing the Scottish Ministers to continue to build the Fastlink.

COMMENTARY

This was an immensely complex and lengthy case, with arguments and legal points changing from appeal to appeal and bringing up many important points of law. One interesting issue relates to Lord Carnwarth's discussion on remedies, and the lack of flexibility in the statutory regime. As Mr Walton's case was dismissed, the point is not relevant here, but it brings up an important issue. Should the conclusion have been reached that EU law meant the Fastlink and related orders had to be quashed by the court, this would have had a significantly detrimental effect on a project already interrupted by years of legal disputes. If the court was given further powers, as Lord Carnwarth stated they have been in relation to judicial review, this could reduce time and resources wasted; the court could then find ways to allow projects to move forward in a more constructive manner.

Arguably the most important is the discussion relating to relating to Mr Walton's standing – a point which had not been brought up by the respondents in their legal arguments. While this case was brought under the 1984 Act, the Lords took the opportunity to comment on the recent changes made to standing under judicial review, with the Axa case. Lord Reed emphasised the case as having ‘put an end to the unduly restrictive approach which had too often obstructed the proper administration of justice’ – the courts previously forgetting its function of maintaining the rule of law, not redressing individual grievances. ⁵⁷

Both Lords Reed and Hope alluded to the marked difference between the Inner House decision and the expansion of standing in the cases of judicial review by the Axa case. This case looked at who can bring an action to those who have standing (rather than the traditional private law requirements of title and interest). This brought the position under Scots law into line with that in England. As noted by Lord Hope, Mr Walton had not brought any evidence to suggest that his case was based on his own interests being prejudiced – his own home not being particularly near the route of the Fastlink or indeed the AWPR. Mr Walton had simply chosen to take an interest in a planning decision that was – in his opinion – likely to cause environmental harm to an area of Scotland. The Inner House's interpretation of the phrase ‘directly affected’ and the conclusions drawn from it appear to be influenced by their belief that EU law would not allow their discretionary remedy to be used – leading to an almost ‘backward step’ from the standing decision of Axa. This theory is backed up by the Inner House's closing statement:

However, it must be noted that standing – not simply in environmental cases – can be open to abuse, and it is important to strike a balance between protection and opening the floodgates to unnecessary and unfounded legal actions. This is reflected within Lord Reed's statement that:

He noted the importance of the use of the phrase ‘directly affected’, which helps the court to see the difference between a ‘busybody’ and someone with a ‘reasonable concern’ in the situation. ⁶⁰

Lord Hope's decision demonstrates the impact this decision will have on a wide variety of cases, using the example of ospreys being unable to fly to a lake due to the building of wind turbines. ⁶¹ He made the important point that simply because one individual person cannot say their property rights or interests are affected should not mean that a decision cannot be challenged as ‘that would seem to be contrary to the purpose of environmental law, which proceeds on the basis that the quality of the natural environment is of legitimate concern to everyone … if [the ospreys] interests are to be protected someone has to be allowed to speak up on its behalf’. ⁶² As ospreys, much like any other animal or part of nature that could be harmed by additions to their environment by humans, are unable to bring a case to court themselves, it should not require the rights of one single person to be breached for this to happen. This point is repeated by Lord Reed, stating that:

This relates to the general principle within environmental law that the environment belongs to all of us, and the idea of people protecting ‘their’ natural resources for the good of future generations. This would be impossible if only people with a legal interest could bring cases. Junor's article ⁶⁴ builds on this interesting and currently relevant point, linking it to further planning cases concerning wind turbines or wind farms. The use of wind power within various parts of Scotland is currently a controversial issue, with various pressure groups and charities unhappy with the government's stance towards wind farms. These include bodies such as Scottish National Heritage and the RSPB, as well as members of local communities who feel personally affected by these decisions. Lord Hope referred to these groups, and to the position of many as advisors to the Scottish Ministers on planning issues, commenting on the delicate balance between public participation and bringing cases on weak legal grounds that simply slow down legitimate projects. However, he also recognised correctly that they cannot – and arguably should not – take an interest in every case. It is the integral point of those with a genuine concern about an issue and those who are busybodies.

The issues that the Supreme Court brought up have been demonstrated in recent cases (i.e. the judicial review brought by Sustainable Shetland relating to an application to build 103 wind turbines there). ⁶⁵ The group successfully argued that Ministers had failed to take into account the Wild Birds Directive in relation to the impact on the whimbrel population. While the size and location of the wind farm made it controversial, it would also have had many economic benefits for both the local community and Scotland – powering over 175,000 homes. The economic issues here are reflected within the Walton case, which has delayed the building of the bypass since planning permission was granted in 2009, increasing the costs significantly.

The use of more controversial planning sites is added to by the increase in the size of many planning projects – an example being the recent decision to build over 300 wind turbines in the Outer Moray Firth (creating the world's third biggest offshore wind farm). ⁶⁶ Add to this the increasing importance of sustainable economic growth to the governments of both Scotland and Westminster, and the growing public knowledge of environmental impacts, there is likely to be an increase in legal challenges in the future. Such decisions must be made with a careful balance between economic interests, public interest and environmental impact.

The judgment demonstrates an acknowledgement of this requirement, as noted within Lord Hope's statement on the requirement for applicants to ‘demonstrate that they have a genuine interest in the aspects of the environment they wish to protect, and that they have sufficient knowledge of the subject to qualify them to act in the public interest’. ⁶⁷ This is an important line drawn that should enable this balance to be kept ‘in check’ by the courts while still drawing on the important principles found in Axa and generally through environmental law.

CONCLUSION

The ability to legally challenge a decision likely to significantly affect the environment is an integral part of environmental law. Despite finding that Mr Walton's appeal should be dismissed, the Supreme Court took the opportunity to further entrench the important principles of who is a ‘person aggrieved’ or person with standing under judicial review. This will give many people in the future the opportunity to protect Scotland's natural beauty from the growing environmental impact of humans. It is up to the courts to find that fundamental balance between those with a legitimate interest and those who simply have too much time on their hands.