Walton v The Scottish Ministers (Scotland)

A decision which changes a specific development project is not a modification of a plan or programme under the Strategic Environmental Assessment Directive unless it alters the legal or administrative framework for future development consent. Project-level changes instead fall within the environmental impact assessment regime.

Whether an inquiry is fair depends on its statutory remit. Fairness does not require an inquiry to consider matters outside that remit without a statutory duty or legitimate expectation.

The expression “person aggrieved” is interpreted contextually and broadly. A genuine participant who challenges the legality of a decision will ordinarily qualify. Public law standing may also arise from a genuine concern for environmental protection without proof of a private proprietary interest.

Walton v The Scottish Ministers (Scotland) concerned schemes and orders authorising the Aberdeen Western Peripheral Route, including the Fastlink. Mr Walton had objected to the project, participated in the public inquiry and acted through a local environmental organisation.

The Lord Ordinary rejected his challenge: [2011] CSOH 131; 2011 SCLR 686. The Extra Division also rejected the environmental assessment and fairness grounds and held that Mr Walton was not a “person aggrieved”: [2012] CSIH 19.

The principal issues were whether the Fastlink decision modified a plan or programme for the purposes of the Strategic Environmental Assessment Directive, whether the restricted inquiry was unfair, and whether Mr Walton had standing. The court also considered, largely for future guidance, the remedial discretion applicable to domestic and EU procedural breaches.

1. Appeal dismissed unanimously. Lord Reed delivered the principal judgment. Lord Carnwath and Lord Hope gave additional judgments, and Lord Kerr and Lord Dyson agreed with all three.

2. The Fastlink decision did not modify a plan or programme within article 2(a) of the Strategic Environmental Assessment Directive. The Ministers had assumed responsibility for a specific road project and later enlarged that project. They did not alter any legal or administrative framework governing future development consent. The change therefore belonged to the project-level environmental impact assessment regime. It was unnecessary to decide whether the pre-existing regional transport strategy was itself a plan or programme.

3. Article 13(3) determines the Directive’s temporal application. It does not deprive an earlier measure of its character as a plan or programme. Nevertheless, the Fastlink remained a project modification and no strategic environmental assessment was required.

4. The inquiry procedure was not unfair. Bushell v Secretary of State for the Environment [1981] AC 75 concerned fairness within an inquiry’s established remit, whereas the complaint concerned the prior selection of that remit. The Ministers had to consider timely representations, but no statutory duty or legitimate expectation required the inquiry itself to reconsider the economic, policy or strategic justification for the Fastlink.

5. Although unnecessary to the dismissal, Mr Walton was indubitably a “person aggrieved” under Schedule 2 to the Roads (Scotland) Act 1984. He had objected, participated in the inquiry, lived near the route and demonstrated an informed and genuine environmental concern. The expression is contextual and should not be confined to persons suffering a private legal grievance.

6. The court reaffirmed that judicial-review standing serves the rule of law. A person with a reasonable concern may have sufficient interest, and in an appropriate case citizenship alone may suffice where unlawful action affects the public generally. Lord Hope added that informed individuals may represent environmental interests which cannot protect themselves, provided they are not mere busybodies.

7. Lord Carnwath, with majority support, explained that procedural breaches do not invariably require quashing. EU law requires effective and equivalent remedies, but does not compel automatic nullification regardless of prejudice and countervailing public interests. The applicant’s interest remains relevant to remedial discretion. Under Schedule 2, however, the statutory remedy is confined to quashing the scheme or order; the court cannot invent a separate order confined to the Fastlink.

1. United Kingdom Supreme Court: Dismissed the appeal unanimously, while rejecting the Extra Division’s view that the appellant was not a person aggrieved: [2012] UKSC 44 .
2. Inner House, Extra Division: Rejected the environmental assessment and fairness challenges and upheld the Lord Ordinary. It additionally considered that the appellant was not a person aggrieved and would have refused quashing: [2012] CSIH 19.
3. Outer House: The Lord Ordinary rejected the challenges to the schemes and orders: [2011] CSOH 131; 2011 SCLR 686.