Walton v Scottish Ministers

The Supreme Court dismissed the appeal. The court held that the decision to adopt the Fastlink element was a decision taken in the course of executing a specific road project and therefore did not amount to a "modification" of a "plan or programme" within the meaning of article 2(a) and article 3 of the Strategic Environmental Assessment Directive (Directive 2001/42/EC). The Environmental Impact Assessment procedures applied to the project were therefore the appropriate environmental assessment mechanism. The court also rejected the contention that the limited remit of the public local inquiry or the procedure adopted breached common law requirements of fairness. The court found that Mr Walton had sufficient interest to be a "person aggrieved" but concluded that, on the facts and legal analysis, no legal basis for quashing the schemes and orders in respect of the Fastlink was established.

The judgment addressed related remedial questions and the interplay between the Roads (Scotland) Act 1984 Schedule 2 remedies and EU law remedies. The court observed that issues as to the scope of paragraph 2 of Schedule 2, the application of paragraph 3 discretion, and the effect of the Scotland Act 1998 in cases of EU-law incompatibility may require fuller consideration in an appropriate case, but those matters did not alter the result in this appeal.

This appeal arose from an application under paragraph 2 of Schedule 2 to the Roads (Scotland) Act 1984 challenging schemes and orders authorising construction of the Aberdeen Western Peripheral Route (the WPR) including the "Fastlink" connecting Stonehaven. The appellant (Mr Walton), represented before the court, sought the quashing of the schemes and orders insofar as they concerned the Fastlink on the grounds that the Scottish Ministers had failed to comply with the Strategic Environmental Assessment Directive (Directive 2001/42/EC) and, alternatively, with common law fairness. The appellant also raised issues of standing and remedies.

Procedural history: the Lord Ordinary dismissed the challenge (Walton v Scottish Ministers [2011] CSOH 131). The Extra Division of the Inner House rejected the appeal and additionally expressed doubts as to whether Mr Walton was a "person aggrieved" and whether any failure had substantially prejudiced his interests (Walton v Scottish Ministers [2012] CSIH 19). The case then came to the Supreme Court.

Issues framed by the court included:

• whether the regional transport strategy (the MTS / local transport strategies) was a "plan or programme" within article 2(a) of the SEA Directive;
• whether the Ministerial decision to include the Fastlink constituted a "modification" of any such plan or programme such as to engage the SEA Directive;
• whether the Ministers had failed to observe common law fairness in limiting the remit of the public local inquiry;
• whether the applicant had standing as "a person aggrieved" under paragraph 2 of Schedule 2; and
• what remedies were available and how the court should exercise its discretion if a breach of EU law were established.

The court analysed the directive’s definitions and purpose, and the factual history of the project and consultations. It accepted arguendo that the MTS might be a plan or programme but concluded it was unnecessary to decide that point finally because the decision to adopt the Fastlink was, in legal character, an enlargement or modification of an individual project being executed by Ministers rather than an amendment of the legal or administrative framework for future consent decisions. Because the Fastlink decision concerned project implementation, the EIA procedure applied and the SEA Directive did not require a separate assessment in respect of that decision.

The court also rejected the contention that Ministers were obliged by common law fairness to expand the remit of the inquiry to include policy, economic or strategic justification, observing that the 1984 Act provides specific procedures for representations and inquiries and that Mr Walton had participated and been heard. On standing, the court concluded that Mr Walton had demonstrated sufficient interest to be a "person aggrieved" and would have standing for judicial review, but that on the merits his challenges failed. The Supreme Court accordingly dismissed the appeal.

Appeal dismissed. The court held that (1) the Fastlink decision was a modification of a specific project and not a modification of a "plan or programme" within the meaning of article 2(a) of the SEA Directive, so the SEA obligations did not apply to that decision; (2) there was no breach of common law fairness in limiting the inquiry’s remit; (3) Mr Walton was a "person aggrieved" and had standing, but the legal and factual basis for quashing the schemes and orders in respect of the Fastlink was not established. The court rejected the challenge and dismissed the appeal.

Application under paragraph 2 of Schedule 2 to the Roads (Scotland) Act 1984. Lord Ordinary rejected the challenge (Walton v Scottish Ministers [2011] CSOH 131). The Extra Division, Inner House, dismissed the appeal and raised issues regarding standing and remedies (Walton v Scottish Ministers [2012] CSIH 19). Appeal to the Supreme Court: [2012] UKSC 44 (appeal dismissed).