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:

 

 

 

_______

 

 

Act: Gale, Q.C., Munro; Drummond Miller LLP

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 should be held. Paragraphs 6 and 12 of Schedule 1 allow the respondents (except where the objection is made by a person on whom notice is required to be served), to dispense with any such inquiry if they "are satisfied that in the circumstances of the case, an inquiry is not necessary". Section 139 of the 1984 Act permits the respondents to hold an inquiry in connection with any matter as to which they are authorised to act or which they are required to determine under the Act. The respondents appointed three reporters to hold a public inquiry in relation to the relevant schemes and orders in an exercise of their powers under Section 139. At the same time they appointed reporters to hold a public local inquiry in relation to compulsory purchase orders under paragraph 1 of the fourth schedule to the Acquisition of Land (Authorisation Provisions) (Scotland) Act 1947. On 17 April 2008 the respondents issued a notice (joint appendix volume 1, tab 3) announcing that an inquiry was to be held. The notice stated inter alia:

"Scottish Ministers, having taken a policy decision to construct a Special Road to the west of Aberdeen (known as the Aberdeen Western Peripheral Route) including a new carriageway to Stonehaven (known as Fastlink) have appointed (names of the reporters) to hold a public local inquiry and to report with respect to objections to the associated Schemes and Orders."

The inquiry, it was said, was to be conducted under the Compulsory Purchase by Public Authorities (Inquiries Procedure) (Scotland) Rules 19998. The announcement then went on to state:

"Having accepted the need in principle for the road, Scottish Ministers do not wish to be advised on the justification for the principle of the Special Road Scheme in economic, policy or strategy terms. Scottish Ministers consider that strategies and policies affecting the Special Road Scheme are only relevant to the inquiry in so far as these set the context for the Aberdeen Western Peripheral Route."

The scope of the inquiry was further explained at a pre-inquiry meeting on 13 May 2008. The inquiry itself lasted for over forty days, taking place between 9 September and 10 December 2008, with closing submissions being lodged during January and February 2009. No attempt, be it noted, was made by the reclaimer or, indeed apparently anyone else, to challenge, by way of judicial review, the decision to hold an inquiry or its scope. The organisation, Road Sense, and the reclaimer, were represented at the inquiry by senior counsel who made submissions challenging the scope of the inquiry. These submissions were considered by the reporters. The reporters' conclusions and recommendations were submitted to the respondents on 30 June 2009. Their recommendation was that the schemes and orders should be made, subject to certain modifications. Under Section 143A of the 1984 Act, a statutory instrument which contains an order under Section 5, or confirms the scheme under Section 7 of the 1984 Act and which constitutes a national development (as so designated under Section 3A(4)(b) of the Town and Country Planning (Scotland) Act 1997), or which is the subject of direction by the respondents, is to be laid before the Scottish Parliament and cannot come into force unless the Scottish Parliament, by resolution, approves the instrument. Six of the orders relating to the AWPR, made by the Scottish Ministers, namely the special roads schemes orders and the trunk road order, were subject to approval by the Scottish Parliament by direction of the ministers under Section 143A. On 3 March 2010 the Scottish Parliament voted by an overwhelming majority to approve these schemes and orders.

[9] Against that background, the reclaimer was unable to rely on any failure by the respondents, amounting to a breach of any express provision in the 1984 legislation.

 

The grounds of the application
[10] The first substantive line of attack was, in the first place, based on what was said to be inadequate consultation and obtaining of information, prior to the making of the specific schemes and orders (which as a result, it was contended, rendered the decision to make these orders invalid). In the second place, it was contended, the schemes and orders breached the requirements of the European Habitats Directive, Directive 92/43/EEC of 21 May 1992 as implemented in the Conservation (Natural Habitats Etc) Regulations 1994 (SI 1994 No 2716). For the purposes of understanding the first ground of attack which was based, broadly speaking, on inadequate consultation and obtaining of information it is necessary to return to and rehearse some of the history.

 

The history of the project
[11] The idea of a western peripheral route round Aberdeen has been in contemplation at national, regional and local level for many years. It was first mooted apparently as early as the 1950s. Public consultation took place in the early 1990s when members of the public were able to express their views on the need for the AWPR. At that time the different routes which were considered included a possible link to Stonehaven (see joint appendix volume 2, tab 16:3.3). During September and October 2000, some ten thousand questionnaires were sent out to households and businesses regarding what was described as a proposed modern transport system ("MTS") for the northeast of Scotland. A non-statutory partnership between Aberdeen City Council and Aberdeenshire Council, Scottish Enterprise and Aberdeen and Grampian Chambers of Commerce, which body was described as NESTRANS, assessed and developed a transport strategy designed to meet the northeast of Scotland's transport needs which included a ten year transport strategy. They published their proposed "MTS" in March 2003. It set out objectives for the transport strategy for the northeast of Scotland, which included an integrated package of proposals and policies to enable the efficient movement of goods and people in and around the northeast of Scotland. The MTS outlined the key schemes and projects which would be capable of fulfilling their policies including an Aberdeen western peripheral route. The western peripheral route was described in the MTS "as the key single element of the modern transport strategy (MTS), a facilitating project which allows other parts to be implemented." The key role of the AWPR was identified as enabling through traffic to bypass Aberdeen, improving peripheral movement around the city and transforming accessibility of freight and business services to and from the north and west of Aberdeen. The AWPR, it was considered, would reduce the peripherality of the northern and western parts of the area and would increase movement of people by improving integration between different modes of transport.

[12] In a number of subsequent plans and public documents such as structure plans, local plans and national, regional and local transport strategies, which had been subject to public consultation, the objectives which had been set out in the MTS and the key role of the AWPR in implementing those objectives were emphasised.

[13] In March 2003 the respondents announced that the AWPR would be promoted as a trunk road in partnership with Aberdeen City Council and Aberdeenshire Council. It was agreed that the Scottish Government would fund 81 % of the cost of the scheme and that the balance would be funded by the two councils. Feasibility studies carried out in the 1990s had identified a route, subsequently referred to as the Murtle route, as the preferred corridor for a southern leg to the AWPR. In 2004 the minister for transport instructed that work, which had been undertaken on the Murtle route in the 1990s, should be reviewed and a range of options for a southern leg should be considered. This involved the assessment of four alternative options in addition to the Murtle route. These were described as Pitfodels, Miltimber Brae, Peterculter/ Charleston and Peterculter/Stonehaven. The Murtle route, the Pitfodels route, the Miltimber Brae route and the Peterculter/Charleston route had their south east terminus at Charleston. The fifth option was a route via Peterculter which had south east terminus at Stonehaven. The link between Peterculter and Stonehaven had figured as one of the options under consideration in the early 1990s.

[14] On 4 March 2005, the minister of transport announced dates and details of a major public consultation exercise. This took the form of a series of public exhibitions in communities situated close to the potential route corridors and across the wider north east of Scotland between 10 March and 29 April 2005. This exercise allowed the public to view and to comment on the various options. A consultation pack was made available to the public at these exhibitions (see joint appendix, volume 6, tab 58). A link to Stonehaven in the shape of the Peterculter/Stonehaven option was part of the consultation. More than 7,600 responses were received as a result of this process.

[15] Thereafter costs estimates for each alternative option, taken as a whole, were produced and assessments of the options considered the performance of each of them in terms of what were described as the Government's five criteria of environment, economy, integration, safety and accessibility/social inclusion and also against the specific objectives which had been detailed in the MTS. A partners panel (comprising representatives from Transport Scotland, Aberdeen City Council and Aberdeenshire Council) were provided, in July 2005, with these assessments, so that a review by them could have all the relevant information and that they might thereafter identify a preferred option for the AWPR. The outcome of that exercise was that it was found that the Murtle option was preferred. There were, however, concerns about the selection of that route having regard to the proximity of special needs communities situated in the Camphill area. The respondents' chief road engineer, in October 2005, while recommending the Murtle option, also indicated that the other routes were not without merit. Prior to making a final decision on the preferred option, the respondents commissioned a report from an independent undertaking, M.B.A, to examine the relative performances of the Murtle, Miltimber Brae and Miltimber Brae hybrid option, the last being a hybrid option which combined the Peterculter/Stonehaven and Miltimber Brae options. An economic assessment was carried out for the three options. The report of the MVA consultancy concluded that the hybrid option performed well and offered other benefits such as higher user benefits, greater safety benefits and reduced greenhouse gas emissions (the report is summarised in the reporters' report, page 19 - joint appendix, volume 1, tab 10). According to the respondents, on a final review of the information available to the minister of transport, it was considered that none of the proposed routes was absolutely ideal. The Miltimber route had raised particular public concern as to the effect that it would have on the Camphill special needs communities The court was advised that, in the circumstances, it was considered that the combination of a Miltimber Brae option with a link to Stonehaven, which had formed part of the Peterculter/Stonehaven option, would improve the overall efficiency of the scheme, allowing long distance traffic to move round the city more quickly and reducing traffic on the busiest stretch of the A90 between Stonehaven and Aberdeen. The combined corridor was to be known as the "Southern leg and Fastlink". Its selection, as the preferred corridor, was announced on 1 December 2005.

[16] That last-mentioned decision is the focus of a substantial part of the reclaimer's appeal. Put broadly, the appellant's position is that it was arrived at without the necessary and appropriate opportunity for consultation and scrutiny, required under European Union law, and, in any event, the consultation procedure in relation to it was unfair and that the decision to proceed with the scheme was irrational.

[17] Following the announcement of the decision of 1 December 2005, further work was carried out to identify the preferred route within the southern leg/fast link corridor section of the AWPR, which included land owner and community council consultation. That work culminated in an announcement of the preferred route on 2 May 2006.

 

European Law Consultation - Alleged Failures by Respondents

[18] As has been seen, Section 20A of the 1984 Act was, in its original form, inserted into the 1984 Act in 1988 to implement obligations imposed by European Council directive 85/337/EC on the assessment of the effect of certain public and private projects on the environment ("the EIA Directive"). There is thereby imposed a duty upon the respondents to publish, not later than the date when the details of such a project are published, an environment statement for the project prospect. As has already been noted, too, 1985 Directive was subsequently amended in 1997 (by Council Directive 97/11/EC) and again in 2003 (by Directive 2003/35/EC, the "Public Participation Directive"). The 2003 amendment had, as its stated objective, a contribution to the implementation of obligations of the European Community arising under the Aarhus Convention dated 25 January 1998 on inter alia public participation in decision-making in environmental matters. As a result, amendments were made to Section 20A, in 1999 (by Scottish SI) 1999) and again in 2006 (by SSI/2006/614) as a result. The overriding purpose of the foregoing European measures, in the context of road projects under the 1984 Act is, accordingly, now to be found in Section 20A and that purpose is to ensure that members of the public who are likely to be concerned are given a reasonable opportunity to express an opinion on a project before the respondents decide whether or not to proceed with it. Article 1 of the Aarhus Convention to which the United Kingdom and the European Union are parties states that its objective is:

"In order to contribute to the protection of the rights of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention."

Article 6 of the Convention is concerned with public participation in decisions on the specific activities listed in Annex 1 to the Convention, which include construction of a new road of four or more lanes of at least 10km or more in continuous length. Article 6(2) requires the public affected, or likely to be affected by the environmental decision-making, to be informed, early in the decision-making process in a timely and effective manner, inter alia of the proposal, the nature of the possible decision and the envisaged procedure to be adopted in relation to the implementation of the procedure Article 6(4) then states:

"Each party shall provide for early public participation, when all options are open and effective public participation can take place."

Article 7 of the Convention requires Parties to make provision for public participation

"During the preparation of plans and programmes relating to the environment, within a transparent and fair framework, having provided the necessary information to the public".

It is within that framework that provisions of Article 6(4) falls to be applied. As was pointed out by the Aarhus Conventions Compliance Commission (in a report dated 4 April 2008 into compliance by Lithuania with its obligation under the Convention at paragraph 71):

"The requirements for 'early public participation when all options are open' should be seen first of all within a concept of tier decision-making whereby at each stage of the decision-making certain options are discussed and selected with the participation of the public in each consecutive stage of decision-making addressing only the issues within the option already selected at the preceding stage."

That statement, it appears, is a recognition of what could be reasonably expected and, that is, that once a project is adopted (after public participation) its environmental impact does not engage the requirement of public participation at each subsequent state of the implementation process. To suggest otherwise, in our view, 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. European legislation concerning environmental matters also employs the concept of tier decision-making. The upper tier is governed by the Strategic Environment Assessment Directive 2001/42/EC on the assessment of the effects of certain plans and projects on the environment ("the SEA Directive"). Article 3 of this directive requires an environmental assessment to be carried out for specific plans and programmes which are likely to have significant environmental effect. The assessment must be carried out during the preparation of a plan or programme and before its adoption or submission to the legislative procedure - Article 4. Under Article 6(2) the public must be given "early and effective opportunity within appropriate time frames to express their opinion on the draft plan or programme and the accompanying environmental reports before the adoption of the plan or programme or its submission to the legislative procedure". Member states were required to transpose the SEA Directive into national legislation by 21 July 2004 with the obligation to carry out an environmental assessment applying to plans and programmes of which the first formal preparatory act is subsequent to that date. The transposition of the directive was, for Scotland, implemented by the Environmental Assessment (Scotland) Act 2005 which came into force on 20 February 2006.

[19] The SEA Directive can be seen to be concerned with environmental assessment at the programme or plan level. Assessment at project level on the other hand is governed, not by the SEA Directive, but by the EIA Directive. In this way, as has been already stated, the European legislation recognised tiered decision-making. Article 6(4) of EIA by Article 6(4) amended in 2003:

"The public concerned shall be given early and effective opportunities to participate in the environmental decision-making procedures referred to in Article 2(2) and shall, for that purpose, be entitled to express comments and opinions when all options are open to the competent authority or authorities before the decision on the request for development consent is taken."

In terms of Article 6(5):

"The detailed arrangements for informing the public (for example by bill posting within a certain radius or publication in local newspapers) and for consulting the public (for example by written submissions or by way of a public inquiry) shall be determined by the member state".

[20] It was matter of concession by the reclaimer before the Lord Ordinary, and before this court, that any plan or programme (such as the AWPR) whose preparation began before 21 July 2004 did not require an "upper-tier assessment" in compliance with the SEA Directive. It has to be noted that a voluntary strategic environment assessment, which made reference to the AWPR, was carried out for Aberdeenshire local transport strategy in May 2006 and a further SEA was carried out in March 2007 for the Regional Transport Strategy which also included the Stonehaven link. Another voluntary SEA was carried out in 23006 in relation to the National Transport Strategy (the "NTS") which specifically included the commitment to the delivery of the AWPR project of which the link to Stonehaven was a part.

[21] The question, under this chapter of the case, came to be this - did the decision of the respondents in December 2005 to construct the Stonehaven-Fastlink corridor, as part of the AWPR, involve a breach of any of the foregoing community measures? The argument for the reclaimer was that when the decision, in principle, was taken in December 2005, which included the Stonehaven-Fastlink option, this was a decision which was based on a previously undeclared policy decision, namely the need to relieve congestion on the A90 between Stonehaven and Aberdeen, and the public participation rights of the reclaimer required to be respected in relation thereto. He, or indeed other members of the public, had not previously been given an opportunity to express a view on whether there should be a Stonehaven- Fastlink corridor or not. Any failure in this respect might have been avoided if the subsequent public inquiry had allowed the need for a Stonehaven-Fastlink corridor to be considered but because of its restricted remit it did not. For the reasons given by the Lord Ordinary we reject this argument. As the Lord Ordinary put matters at paragraph 41 of his opinion:

"having made the strategic decision to construct the AWPR as a trunk road, the respondents conducted a public consultation on five possible route corridors in 2005. One of those routes was the Miltimber Brae option. Another included a terminus at Stonehaven. The public, including the appellants, had the opportunity to express their opinion on all of the alternatives at a time when all the options were open. I am not persuaded that the appellant's description of this public consultation as "informal" somehow disqualifies it from consideration as a part of the opportunity for public participation in the tiered decision-making process. It seems clear that views expressed by the public during the 2005 consultation were indeed influential upon the minister of transport's eventual decision, although not perhaps in the way that the present appellants might have wished".

(His Lordship in these last remarks is no doubt referring to the fact that the previously preferred option was departed from, in part, at least, because of the representations made by members of the public who, it was deemed, would be affected by the choice of that route). His Lordship; continued:

"That decision was of course to take forward a hybrid of two previous options. It was submitted on behalf of the appellants that this decision rendered irrelevant all of the public consultation and participation which had proceeded it. I do not accept that submission. Public participation in the decision-making process had taken place with regard to the construction of a link to Stonehaven and I do not consider that that process was rendered irrelevant by the fact that the option selected in December 2005 also included a link to Charleston".

It is of importance to note also, as the Lord Ordinary pointed out, that the process of public consultation did not end with the announcement of the preferred route corridor in December 2005 or with the announcement in May 2006 of the preferred specific alignment of the road. When the draft scheme and orders and the relative environmental scheme were published in December 2006, and when the drafts were republished with a relevant environmental statement in 2007, a further process of consultation took place. During that process, representations were made by Road Sense and the reclaimer, challenging the need for the AWPR at all, and, in particular, the need for a link to Stonehaven. These representations were considered and responded to by Transport Scotland. That process took place before any question of the remit of a public inquiry was determined

[22] On 7 May 2009 Road Sense made a complaint to the Aarhus Convention Compliance Committee (ACC)complaining of non-compliance by the United Kingdom in various ways with its Convention obligations in respect of the proposed construction of the AWPR. The ACC was established under Article 15 of the Aarhus Convention which requires the meeting of parties to establish arrangements for reviewing compliance with the Convention. The complaints made to the ACC included the complaints now made in this appeal with regard to breach of Convention requirements. These were summarised in the introduction to draft findings of the ACC issued on 12 January 2011 in the following terms:

"- breach of Article 6 of the Convention by failing to seek public comment on the proposed route for the AWPR in an open way, failing to provide information on new objectives for the proposal and failing to invite the public to submit any comments, information, analyses or opinions on the proposed route;

- breach of Article 7 of the Convention by the introduction of a new objective for the regional strategic transport plan (i.e. relief of congestion on the  A90) without any public participation;

- breaches of Articles 7 and 9 of the Convention by restricting the scope and circumstances of the public inquiry in a manner contrary to the principles of natural justice."

The ACC rejected these complaints after having considered written submissions, and a hearing attended by the United Kingdom and Scottish Government representatives and the reclaimer. In sum, the ACC was satisfied that the whole process of consultation, up to, and including the public participation, through the statutory authorisation process, following publication of the draft schemes and orders meant that it could not be said that the respondents were in breach of Article 6. In addition they held that there was no breach of Article 7 since any reference to a new objective was not in a document which was a plan subject to the requirements of that article. The Lord Ordinary took some comfort from these conclusions although he stressed that he had reached his own conclusions on the subject. We, too, derived support in endorsing the Lord Ordinary's conclusions, from the determination of what is a specialist body, specifically entrusted with policing compliance with the Convention's requirements.

[23] The Lord Ordinary took the view that, having regard to the consultation that had taken place, prior to the announcement of the scope of the public inquiry, the respondents were entitled by the time the public inquiry was held to reach the view that attention should then be focussed on environmental and technical factors affecting the proposal, including the option already selected at the preceding stage of the process. As the Lord Ordinary put matters at paragraph 42:

"There is, in my opinion, nothing in the EIA Directive, as amended by the Public Participation Directive, which required the respondents at this stage to seek or to take account of any further public opinion on the question whether there was a need in economic or strategic terms, for a link to Stonehaven."

In particular, there was no need for a public inquiry into the need for such a link and as his Lordship observed, "in any event even at the inquiry stage, the possibility remained open for the reporters to make a recommendation that for environmental or technical reasons, the scheme should not be approved."

 

Need for consultation under domestic law
[24] Separate from the consultation and participation argument based on the European measures, just discussed, the reclaimers sought to have the schemes and orders quashed on what were apparently considered to be common law principles and which involved contending that the restrictive remit of the public inquiry amounted to an illegitimate exercise of the respondents' responsibilities under the 1984 Act. It should be noted that this argument, it appeared, was dependent upon the decision on 1 December 2005 regarding the Stonehaven-Fastlink corridor having been taken. It seemed to be accepted by the reclaimer that no complaint about the reasonableness of the inquiry procedure could have been taken, but for the taking of the decision in December 2005. The taking of that decision, it was submitted, re-opened matters to the extent that an inquiry, without limit as to its remit, was required. It was argued before the Lord Ordinary that by reason of the restricted remit the reclaimer had been precluded from subjecting four areas of objection to scrutiny. V13.

1. The economic justification including the cost/benefit ratio of the scheme.

2. Its incompatibility with national and local planning policy.

3. The potential adverse landscape and visual impact of the scheme.

4. The scheme's incompatibility with the requirements of the EU Habitats Directive.

The legal basis upon which this argument was founded was, it seems, that having decided to have a public inquiry the respondents, in the circumstances, had acted unfairly, in restricting its scope in the manner they did. In our opinion, following the approach of the Lord Ordinary, this argument was misconceived having regard to the nature and purpose of such an inquiry and having regard to what had gone on prior to its announcement.

[25] In the first place, it has to be noted, again, that the reclaimer was not a person whose objections, having not been withdrawn, was entitled under the 1984 Act to require that a public inquiry of any sort should be held. In the second place the nature and function of such an inquiry have to be kept firmly in mind. As Lord Diplock pointed out in Bushell v Secretary of State for the Environment [1981] AC 75 at page 94, in a case dealing with the then English equivalent of the 1984 Act,

"Where it is proposed that land should be acquired by a government department or local authority and works constructed on it for the benefit of the public either as a whole or in a particular locality, the holding of a public inquiry before the acquisition of the land and the construction of the works are authorised has formed a familiar part of the administrative process ever since authorisation by ministerial order of compulsory acquisition of land for public purposes began to be used to replace parliamentary authorisation by private bill procedure in the 19th Century. The essential characteristics of a 'local inquiry' an expression which when appearing in a statute has by now acquired a special meaning as a term of legal art, are that it is held in public in the locality in which the works that are the subject of the proposed scheme are situated by a person appointed by the minister upon whom the statute has conferred the power in his administrative discretion to decide whether to confirm the scheme. The subject matter of the inquiry is the objections to the proposed scheme that have been received by the minister from local authorities and from private persons in the vicinity of the proposed stretch of motorway whose interests may be adversely affected, and in consequence of which he is required by Schedule 1, paragraph 9, to hold the inquiry. The purpose of the inquiry is to provide the minister with as much information about those objections as will ensure that in reaching his decision he will have weighed the harm to local interests and private persons who may be adversely affected by the scheme against the public benefit which the scheme is likely to achieve and will not have failed to take into consideration any matters which he ought to have taken into consideration." (emphasis added).

As has been noted the reclaimer is not said to be a person whose land is to be acquired or a person in the vicinity of the development whose interests may be adversely affected by it. The authorities specified in the legislation who have the right to object, and, whose objections not having been withdrawn, may require a public inquiry are to be regarded otherwise, it seems to us, as the guardians of local interests for the purposes of the legislation. Lord Diplock went on to observe that:

"Where rules regulating the procedure to be followed at a local inquiry held pursuant to a particular statutory provision have had been made by the Lord Chancellor under Section 11 of the Tribunals and Inquiries Act 1971, the minister and the inspector appointed to hold the inquiry must observe those rules; but no such rules were applicable in the instant case - they had not yet been made."

That is not the position in the present case where the inquiry was to be conducted under the Compulsory Purchase by Public Authorities (Inquires Procedure) (Scotland) Rules 1998 (SI 998 No. 2313). His Lordship then, having noted that, in the absence of relevant rules, said that the procedure to be followed at a local inquiry had to be left to the discretion of the minister or the inspector appointed by him to hold the inquiry on his behalf, or partly to one or partly to the other. He then continued, at page 95:

"In exercising that discretion, as in exercising any other administrative function, they owe a constitutional duty to perform it fairly and honestly and to the best of their ability, as Lord Greene MR pointed out in his neglected but luminous analysis of the quasi-judicial and administrative functions of a minister as confirming authority of a compulsory purchase order made by a local authority, which is to be found in B Johnson & Co (Builders) Ltd v Minister of Health [1947] 2 All ER 395, 399-400. That judgment contains a salutary warning against applying to procedures involved in the making of administrative decisions concepts that are appropriate to the conduct of ordinary civil litigation between parties."

In the present case the reclaimer sought to found, to a very large extent on dicta in Bushell to support his argument that by restricting the remit of the inquiry, the respondents had acted unfairly. But the respondents, in restricting the scope of the inquiry in the way they did, were acting, in our judgment, quite lawfully. 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 respondents with advice on areas which they considered it would be helpful to have in relation to their decision. The subject matter of the inquiry did not require to be open-ended. That the continuing nature of the decision-making process, in a large scale project like the AWPR, involves a balancing exercise in which the inquiry plays a role, is reflected in what Lord Diplock had to say in Bushell at page 102B:

"Upon the substantive matter, viz., whether the scheme must be confirmed or not, there is a third party who was not represented at the inquiry, the general public as a whole whose interests it is the ministers duty to treat as paramount. No one could reasonably suggest that as part of the decision-making process after receipt of the report, the minister ought not to consult with the officials of his department and obtain from them the best informed advice he can to enable him to form a balanced judgment on the strength of the objections and the merits of the scheme in the interests of the public as a whole, or that he was bound to communicate the departmental advice that he received to the promoting authority and the objectors." (Emphasis added).

In his speech in Bushell at page 107D-E, Viscount Dilhorne noted that:

"Brought about as it is by the lodging of objections, the primary purpose of a local authority inquiry must

'... to ensure that the interest of the citizen closely affected should be protected by the grant to them of a statutory right to be heard in support of their objections, and to ensure thereby that the minister should be better informed of the facts of the case' (Franks Committee's Report (Cmnd.218), para. 269)." (emphasis added).

It should be noted that in the Bushell case, one of the complaints was that the inspector holding the inquiry treated the question of need for the motorway as irrelevant and had thereby excluded from his mind considerations which might have resulted in a recommendation favourable to the objector. As regards this argument, Lord Lane at pages 122F-123A said:

"By treating the question of need for the motorway as irrelevant, he excluded from his mind considerations which might have resulted in a recommendation favourable to the objectors. This is said to be a breach of the rules of natural justice and consequently a failure to comply with the provisions of the Act of 1959 requiring the intervention of the court. I disagree. It would have been inappropriate for the inspector to have made recommendations as to the need for the motorway as a whole. He properly fulfilled his duties by presenting all the material evidence to the ministers in his report.

One can test the matter in a practical way. If every inspector at every local inquiry is to determine the question of need and make recommendations accordingly one will along the course of a proposed motorway, as local inquiry follows local inquiry, get a series of decisions, doubtless different from one another, as to the need for the motorway. The effect, apart from the appalling waste of time and money, would be that the Secretary of State would have to make up his mind on the evidence available to him rather than on the various recommendations. That end can better be achieved by the method adopted here.

In short, the question of need is a matter of policy or so akin to a matter of policy that it was not for the inspector to make any recommendation."

In the present case, the reclaimer, as has been noted, concedes that no objection could have been taken to the restricted remit of the inquiry had it not been for the 1 December 2005 decision in relation to the south corridor. Yet he seeks to contend that that event imposed a duty on the respondents to have re-opened all questions of need etc of the AWPR because in effect what had occurred thus far was irrelevant. To seek to build such an argument on the decision in Bushell involves, in our judgment, a very serious misunderstanding of what was being decided in that case which in the passages just cited is entirely against the reclaimer's position in this aspect of the case. The restricted role of "unfairness" in the particular statutory context of holding an inquiry under the 1984 Act is described well by Woolf LJ (as he then was) in Regina v Transport Secretary, ex p Gwent C. (1988) 1 QB 429. At page 433G his Lordship said:

"Subject to any statutory procedural rules which apply to the inquiry or and the requirements in the statute creating the power to hold the inquiry, the inspector has a wide discretion as to the procedure which he follows. But he must not use that discretion to frustrate the purpose of the inquiry and he must therefore give the objectors an adequate opportunity properly to present their objections to the proposal." (emphasis added).

The reclaimer at times in his argument, it seemed to us, sought to extend that phrase that we have emphasised in the dictum just quoted "frustrate the purpose of the inquiry" and to contend that the circumstance of this case demanded that the inquiry be virtually open-ended and, in particular, should have investigated question of need for the AWPR at all. At page 435-436, Woolf LJ continued that:

"In considering the question of the fairness of the proceedings it is necessary to examine the proceedings as a whole. Not only what has happened before the inspector but also what has happened before the Secretary of State and it is only if the procedure as a whole is unfair that the courts can intervene."

Having considered carefully the whole history of this matter, the reclaimer, in our judgment, has failed to demonstrate any unfairness in the procedure adopted and followed from the decision to restrict the remit of the inquiry, far less any unfairness that caused him any prejudice. We endorse entirely the Lord Ordinary's view, expressed at page 91E-92A of his opinion in the following terms:

"Having made the strategic decision to construct a Western Peripheral Road, the respondents were entitled to proceed to the stage of route selection without carrying out further consultation at a public inquiry, on the economic, policy or strategic justification for such a route."

That conclusion is particularly justified where, as happened in the present case, the public, as a whole, including the reclaimer were given an opportunity to provide their views on the alternative route in the 2005 consultation as well as in 2006 and 2007 when the draft schemes and orders and relative environmental assessments were published. Moreover, in the event, the objectors were permitted by the reporter to lead a wide range of evidence at the public inquiry including proposals for alternative routes.

[26] As regards the specific matters which the reclaimer contended could not be explored and tested at the inquiry, as a result of the restricted remit, these, on a proper consideration of what occurred amounted to another edifice which was built on non-existent foundations. Evidence was led at the inquiry by objectors (including Road Sense) as to adverse landscape and visual impacts of the scheme - see for example the precognition of Mr James and Mr Lancaster (joint appendix volume tabs 9/110 and 111). The reporters made findings in fact, at paras. 10.92-10.100 of their report, as to the adverse landscape and visual impacts which would arise from the project. As regards compatibility with local and national planning policies, as the Lord Ordinary indicated at para. 60 of his opinion, the reclaimer was able to have scrutinised, at the inquiry, the impact of the project on the green belt and, in any event, this issue had been examined at earlier inquiries at planning level (see e.g. North East Scotland Together Structure Plan (joint appendix vol. 3/23); and Report on Objections to the Finalised Aberdeenshire local plan 2005 (joint appendix vol. 3/27). The reclaimer was also able to have the scheme's incompatibility with the EU Habitats Directive considered at the inquiry. The reporters made findings in fact on these matters and the alternatives which were proposed were considered by the reporters in their report which ran to 586 pages.

[27] Before this court the emphasis by counsel for the reclaimer, as to the effect of the restricted remit of the inquiry, was that it had meant that the economic case for the scheme was never exposed to public scrutiny. We have already indicated that, in our judgment, there was no requirement in law for the public inquiry to be an open-ended review of the respondents' policy decision. As previously noted the inquiry was held under the Compulsory Purchase by Public Authorities (Inquiries Procedures) (Scotland) Rules 1998. Rule 18(4) of the rules provides:

"Nothing in this rule shall require a representative of a government department to answer any question which in the opinion of the reporter is directed to the merits of government policy and the reporter shall disallow any such question."

In particular we consider that there was no such requirement that the economic case for the scheme should be part of the public inquiry exercise. The reclaimer makes play of the fact that due to the passage of time, original estimates as to the cost of the proposal would fast become out of date, but that is true of all such major projects which require first of all scrutiny over a period of time and which then, in themselves, take time to implement. It simply cannot be the case that there is some legal requirement in implementation of any duty of fairness under the 1984 Act that there has to be scrutiny at a public inquiry of estimated costs at various stages over a protracted period before implementation of the scheme particularly, particularly when some of the lapse of time since the original figures were produced has been caused by having to consider objections to the scheme. As the Lord Ordinary puts matters at para. 58 of his opinion:

"The question whether the proposed scheme gives value for money is one for which they (the respondents) are accountable to the Scottish Parliament and which need not, as a matter of procedural fairness, be exposed to scrutiny at a public local inquiry."

Much play was made by the reclaimer of the statement made by the Cabinet Secretary to Parliament on 13 January 2010 following the issue of a decision letter when the Cabinet Secretary said:

"The preferred route demonstrates a very high level of economic justification. It has a high benefit to cost ratio - the benefit being more than four times the cost of building the route."

This statement referred to quoted estimated figures for the cost of the scheme which are the same as those which were referred to when the announcement was made in December 2005. The Cabinet Secretary went on to state, however, that the final costs would not be known until tenders for the contract works had been received and the works completed. The respondents would continue to monitor the position in light of prevailing tender prices for road contracts. The Minister, nevertheless, was able to state that the scheme "demonstrated a very high level of economic justification". As explained to the court, by senior counsel for the respondents, the estimated costs which were before the inquiry were based on standard Treasury guidance for such projects and national policy guidance for cost /benefit analyses. It would have served no purpose for the reporters to hear objections which sought to look behind those guidelines. The question of cost/benefit ratio was before the Parliament when the schemes and orders were approved by Parliament.

[28] The reclaimer made reference to a memo from an official of Transport Scotland to the Minister of Transport dated 11 June 2008. In that document inter alia the following appeared:

"Cost Estimate

3 It should be noted that the base cost estimate for the construction of the scheme has remained largely unchanged. The bulk of any variation between the original cost estimate and what may turn out to be current is a result of construction and land inflation running well ahead of the 2.5% advised by Treasury which was adopted in the AWPR ...

 

Value for Money
3 In terms of the conventional, Treasury approved, analysis, value for money is not an issue of high risk. Our consultants have carried out a sensitivity test and the scheme cost could rise nominally to 800- 900m and will still provide a healthy rate of return. A measure of the sensitivity of this will be available for the PLI."

It was submitted that the "measure of the sensitivity" referred to was never made available, nor was there any suggestion of changes in the economic climate which might require reconsideration of the estimates founded upon by the respondent. This led on to further submission, on behalf of the reclaimer, that standing the inadequacy of the published material on the cost/benefit ratio, the respondents' decision to proceed with the scheme is irrational. Although the respondents had stated that they did not wish to be advised on the economic justification for the scheme at the inquiry, there was reference in the evidence of Transport Scotland to the benefit/cost ratio of the preferred option. The reporters made a finding in fact that the scheme had been calculated to have a certain benefit to cost ratio, but as the Lord Ordinary stated at paragraph 57, 58 and 64 of his opinion, the benefit to cost ratio was not relied upon by the reporters as a reason to prefer the selected route to any alternative. The benefit to cost ratio referred to at the inquiry was that to which the cabinet secretary had referred in his statement to Parliament. This was consistent with the respondents' decision to restrict consideration at the inquiry and to their concluding that the proper forum for the testing of the economic benefits of what was being proposed was Parliament. In any event, we have to remind ourselves at this stage that the reclaimer, in asserting (a) that the inquiry's remit in excluding scrutiny of the economic case was an unfair procedure, and (b) that the decision to proceed with the scheme was done on the basis of inadequate material to support an economic justification, does so, as an individual, with no greater interest to protest in that matter than any other taxpayer. This fact comes to the fore, in the event, when consideration has to be given as to whether the reclaimer has established that he should be provided with the remedy which is made available under the 1984 Act.

 

Habitats Directives SACS - Alleged failures of Compliance
[29] The reclaimer also advanced two distinct arguments in support of his appeal which turned on the provisions of the "Habitats Directive" - EU Council Directive 92/43/EEC as implemented in the United Kingdom by the Conservation (Natural Habitats etc) Regulations 1994. ("the 1994 Regulations").

[30] The route of the southern section of the AWPR requires a bridge crossing over the River Dee. This will involve the construction of a three span viaduct bridge some 100m to the east of the existing Maryculter bridge. The Habitats Directive and the Regulations referred to make provision for the designation of sites as "special areas of conservation" (SACS). The catchment of the River Dee is one of the best areas in the United Kingdom for Atlantic salmon, fresh water pearl mussels and otters, each of which species is designated in Annex II of the Directive. Accordingly the River Dee catchment has been designated as an SAC and where a plan or a project, which is not directly connected with or necessary for the management of a SAC is considered likely to have a significant effect on the site, then an "appropriate assessment" must be carried out by the competent authority. It is a matter of agreement in this case that the respondents, as the competent authority, were required to carry out an "appropriate assessment" in relation to the scheme. Regulation 48(5) of the 1994 Regulations provides:

"In the light of the conclusions of the assessment, and subject to Regulation  49, the authority shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the European site. ..."

Regulation 48(6) provides:

"In considering whether a plan or a project will adversely affect the integrity of the site, the authority shall have regard to the manner in which it is proposed to be carried out or to any conditions or restrictions subject to which they propose that the consent, permission or other authorisation should be given."

Regulation 49(1) provides that even where it has been determined that a plan or project will adversely affect the integrity of a site, the competent authority may consent to it "if they are satisfied that, there being no alternative solutions, the plan or project must be carried out for imperative reasons of overriding public interest". The corresponding provisions of the directive are Article 6(3) and 6(4). Article 6(3) is in the following terms:

"Any plan or project not directly connected with or necessary to the management of the sites but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public".

Article 6(4) is concerned with situations where, despite a negative assessment of the implications for the site, a plan or project must nevertheless be carried out for "imperative reason of overriding public interest". In the case of Landelijke Vereniging tot Behoud van de Waddenzee and Nederlands Vereniging tot Bescherming van Vogels v Staatsecretaris van Landbouw, Natuurbeheer en Visserij [2004] ECR 7405; "the Waddenzee case" the European Court of Justice opined that, having regard to the precautionary principle, any plan or project not directly connected with or necessary to the management of the site is to be subject to an appropriate assessment if it cannot be excluded that it will have a significant effect on that site, individually or in combination with other plans and projects. At paragraph 59 of its judgment the court stated that the test in Article 6.3 would be satisfied only if the competent authority, having carried an appropriate assessment, is certain that a plan or project will not affect the integrity of the site, "That is the case where no reasonable scientific doubt remains as to the absence of such effects". The court observed at para. 52 of its judgment that the appropriate assessment does not require to be carried out in any particular form. In the present case in advance of the public local inquiry, the transport secretary instructed a consultant (Jacobs) to prepare a detailed "report to inform appropriate assessment" in which among other things, comments previously received from Scottish Natural Heritage ("SNH") were taken into account. This report concluded, that, with regard to the species requiring protection, with proposed mitigation measures in play, the construction and operation of the AWPR would not adversely affect the conservation objectives of the SAC for the species. SNH, which is the body designated under the directive and regulations as the respondents' statutory nature conservation advisors, in a consultative response to the Jacobs Report, dated 8 May 2008 commented upon the Jacobs' Report's thoroughness and expressed the view that if the proposed developments were undertaken strictly in accordance with certain specified conditions, they would not adversely affect the integrity of the River Dee SAC. At the time when the inquiry was held, the respondents had not yet carried out their "appropriate assessment". The reporters did, however, hear some evidence and submissions relating to the Jacobs' Report. At para. 10.191 of their report the reporters made the following finding:

"It appears to us to be beyond reasonable scientific doubt that, subject to appropriate mitigating measures being in place, there would be no significant adverse residual impacts on the conservation objectives for the qualifying species, or on the integrity of the site. On the basis of the evidence provided to us, we have found no reason to doubt that appropriate mitigation measures would be realistically capable of being put in place. It therefore seems likely that a positive assessment would be able to be made in respect of the effects on the SAC under Article 6(3)/Regulation 48." (emphasis added).

The appropriate assessment, by the respondents, was published in December 2009 on the same day as the decision letter. While it, in itself is fairly brief, it clearly draws on the very full and detailed Jacobs' report. The assessment itself, acknowledges that, with regard to each of the relevant species, the construction phase of the bridge is likely to have significant effects but the operational phase is not. In answer to the question "Can it be ascertained that the proposal/plan will not adversely affect the integrity of the River Dee SAC?" the assessment states:

"... the Consultant's Report to inform the Appropriate Assessment details a range of key mitigation measures that will be implemented. The mitigation proposed ensures that the conservation objectives for each of the qualifying species can be maintained in the longer term, therefore an adverse affect on the integrity of the River Dee SAC can be avoided."

The assessment, therefore, concluded that the constructional and operational phases of the AWPR could be undertaken without any adverse affect upon the integrity of the River Dee SAC. The conclusion, it noted, was fully supported by SNH in its capacity as the respondents' statutory nature conservation advisors. In the body of the decision letter itself, the matter is dealt with at paragraphs 17 and 18 which summarise the conclusions of the appropriate assessment. Against all of that, before the Lord Ordinary, the reclaimer submitted that the decision was flawed in two respects. In the first place the fact was that it was not apparent from the terms of the decision letter that the respondents had applied the rigorous standard required by the Directive before they could be satisfied that the proposal would not affect the integrity of the River Dee SAC. The second complaint was that decision letter was flawed because the Jacobs' report had failed to assess the effect of the proposal in combination with two other proposals relating to Aberdeen Harbour and Blairs Estate. That second point was not argued before us.

[31] In his written submissions to the court, the reclaimer's position in respect of this chapter of the case is put this way (at paragraph 67):

"The materials available to the respondents do not disclose that the requirements of the Directive, as explained and elucidated by the CJ.EU, were met; and do not warrant the conclusion stated in the decision letter of 21 December 2009 that the scheme is fully compliant with the Directive. In all the circumstances no sufficient reasons were given for this conclusion. Given the evidence, the reclaimer submits that, had they asked themselves the right question, the respondents as competent authority would have been obliged to conclude that they could not be convinced, beyond reasonable scientific doubt, that the scheme would have no adverse effects on the qualifying interests with the River Dee SAC. They would then have been obliged to consider whether there were no alternatives to the scheme and, even if there were any alternatives, whether the scheme could be justified by reference to imperative reasons of overriding public interest. As it was, they did not address themselves to those questions at all."

Although junior counsel for the reclaimer, in her submissions, initially sought to attack the respondents' decision in relation to these matters on the basis that the requirement of being satisfied as to no adverse impact could not be met by imposing mitigating factors which would have the affect of avoiding any adverse impact, that position was ultimately, abandoned, not surprisingly, because it clearly, in our judgment, paid no attention to practical realities. That is exactly the point made by Sullivan J (as he then was,) in R (Hart DC) v Secretary of State for Communities and Local Government (2008) PCR 16 at paras. 55 and 56 and the views expressed therein in relation to this point are entirely in accordance with our own. In truth the reclaimer's argument on this aspect of the case came down, ultimately, to something of a semantic quibble. Because the appropriate assessment, and the decision letter itself, did not use the exact language employed by the ECJ in Waddenzee case they should be deemed to have failed to apply the proper test. It has to be noted, however, that the reporters, on the basis of the evidence before them, in particular the detailed and thorough Jacobs' Report, were able expressly to conclude that it appeared to them beyond reasonable scientific doubt, (the exact language employed by the ECJ) that, by the subject to appropriate mitigating factors being put in place, which factors were addressed and considered in detail in the Jacobs' Report, there would be no significant residual impacts on the conservation objectives for the qualifying species or the integrity of the site. These findings were expressed in their report to the respondents. In that state of affairs and, in particular, with SNH apparently endorsing this approach, the language used in the appropriate assessment is entirely consistent with the language and substance of what was being said and decided in the Waddenzee case. Moreover, as counsel for the respondents quite correctly pointed out, the reclaimer does not point to any available conflicting evidence that ought to have put the conclusion of the Jacobs' Report and the reporters' report in any doubt. For these reasons we agree with the Lord Ordinary that there is no substance in this argument which we reject.

 

Habitats Directive - Protected Species - Alleged failures of compliance
[32] The final attack made by the reclaimer as to the validity of the respondents' decision to approve the schemes and orders relied on an other aspect of the Habitats Directive. Article 12(1) provides inter alia:

"Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting: ...

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration."

Article 16(1) of the Directive provides for inter alia derogation from Article 12 in the following terms:

"Provided that there is no satisfactory alternative and the derogation is not detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range, Member States may derogate from the provisions of Article 12 ...

... (c) in the interests of public health and public safety, or for other imperative reasons of overriding public interest, including those of a social or economic nature and beneficial consequences of primary importance for the environment."

In implementation of the obligations under the directive, Regulation 39 of the 1994 Regulations makes it a criminal offence among other things to deliberately kill such animals or damage or destroy their breeding sites or resting places. Regulation 44, however, provides that Regulation 39 does not apply for certain purposes under and in accordance with a licence granted by the appropriate authority. This is the means whereby the United Kingdom Government elected to "take the appropriate measures" in terms of Article 12(1) of the Directive. Regulation 44 goes on to provide, employing the language of Article 16(1) of the Directive that a licence can lawfully be granted only when certain tests are met, i.e.

1. There being imperative reasons of overriding public interest;

2. there is an absence of a satisfactory alternative; and

3. the action authorised is not detrimental to the maintenance of the species at a favourable conservation status in its natural range.

As at the time of the relevant decision, and when matters were before the Lord Ordinary, the respondents were the authority charged with the granting of such licences in terms of Regulation 44(5). The respondents were required to consult with the appropriate nature conservation body which by Regulation 4 is the SNH, in the exercise of their licence granting functions, from time to time and they were charged not to grant a licence of any description unless they had been advised by SNH as to the circumstances in which, in the opinion of SNH, licences of that description should be granted. With effect from 1 July 2011, however, the respondents delegated their licence granting functions to SNH under Regulation 44, in relation to the species with which the present proceedings are concerned. They have done so in an exercise of their powers under the Conservation (Natural Habitats Etc) Amendment (Scotland) Regulations 2011. At the time that the decision which is challenged was taken, the respondents were not reaching any conclusion as to whether a licence should be granted by them or not. They were simply acting as the competent authority in terms of Regulation 3(4), not as the appropriate authority in terms of Regulation 44 of the 1994 Regulations. In terms of Regulation 3(4), when the respondents were exercising their functions under the 1984 Act, the only obligation upon them was to have regard to the requirements of the Habitats Directive so far as they may be affected by the exercise of those functions. In the case of R (Morge) v Hampshire County Council [2011] 1 WLR 268 Lord Brown of Eaton-under-Heywood at paras. 20-29 held that the "competent authority" had no obligation when carrying out its responsibilities under Regulation 3(4) to satisfy itself beyond reasonable doubt that the development in question would not offend Article 12 or alternatively that a derogation from that Article would be permitted and a licence granted. Having carried out their Regulation 3(4) responsibility, the competent authority, in that case a planning authority, was free to put into implementation its proposals and after that, the stage would, in due course, be reached when a decision would fall to be made as to whether a licence should be granted by the "appropriate authority" (now, in Scotland, SNH). It was stressed in the Morge case that the protection afforded in terms of the Directive is for the species at the location in question rather than for individuals of the species.

[33] The respondents, themselves, identified that the proposal had the potential to impact upon certain species protected by the Directive, namely otters and five species of bat. SNH, in a written statement dated 12 August 2008 which was produced at the public inquiry, referred to the terms of Regulation 44(3)(b). They acknowledged that the project would necessitate the destruction of some other resting place - couches -and the demolition of houses/buildings and trees, some of which were known to support bat roosts. It was nevertheless the advice of SNH that the effect of the proposal would not be detrimental to the maintenance of otter and bat species on favourable conservation status within their natural range and that there would be no impact on favourable conservation status to either of these species. The reporters, in their report, refer to the three tests set out in Article 16 and Regulation 44. As regards the third test, at para. 10.85 the reporters stated:

"Jacobs carried out a detailed post-ES survey of bats, and concluded that most residual impacts would be of minor significance, at worst, in the short term and generally of negligible significance in the long term. SNH advised that the proposal would not be detrimental to the maintenance of bat species at favourable conservation status within their natural range ... The balance of the evidence on bats favours the views expressed by TS (i.e. Transport Scotland, who commissioned the Jacobs survey) and SNH."

As a result at para. 10.86 of their report the reporters concluded that they had no sound basis for disputing the views expressed in SNH's advice. The attack by the reclaimer, before this court, in relation to these matters was that the respondents did not have a sufficient basis upon which to consider that the first and second tests had been met and that no adequate reasons had been given for the view that any of the tests had been met. The argument was based on the fact that as, the Commission document on the Strict Protection of Principal Species of Community Interest under the Habitats Directive (European Commission February 2007 Guidance, directed, the case law of the European Court of Justice makes clear, any derogation must be interpreted and implemented restrictively to avoid undermining the main provisions of the Directive. Derogation could only be a last resort having regard to the overarching need to ensure the strict protection of EPS. Reference was made in that connection to the opinion of the Advocate General in the case C-10/96, Ligue Royale Belge pour la protection des Oiseaux v Region Wallone [1996] ECR 1-6775 at para. 33 and the Commission's guidance set out in the document just referred to at paragraphs 39-41 where, it was pointed out that the assessment of the "overriding" character of the public interest required a careful balancing of interests.

[34] The three tests were, however, addressed by the respondents in a document described as "A Formal Review And Assessment of the Implications of the Proposed AWPR upon European Protected Species (EPS - otter and bat species)". That document was published on the same day as the decision of the respondents was issued. The document stated in relation to the first test:

"No feasible alternatives to the construction and operation of the road exist. The project is of strategic importance for the future development of the economy of the north-east area of Scotland, and beyond".

As regards the second test the document went on to say:

"Alternatives to the chosen route have been assessed and consulted upon for a number of years prior to the chosen route being determined by Scottish Ministers at the end of 2005. There is no one, clear, viable alternative that has the support of those objecting to the route, and certainly none that offers less impact upon environmental issues. Alternatives considered also pose similar and in some cases, greater environmental impact upon EPS. Since none of the alternatives offer proven, improved benefits to the environment, it is appropriate for Scottish ministers to determine that the preferred route is the only viable option, taking into account issues such as relocation, measures to avoid death or injury of EPS, principally bats and otters.

It is therefore believed that the full range of possible alternatives has been properly examined and that such alternatives demonstrate that the preferred route is the only satisfactory means of proceeding with the construction and operation of the road, under licence as required."

When he came to address the third test the writer of the document said:

"I am satisfied that the construction and operational with mitigation phases (sic) of the AWPR can be undertaken without any adverse impact upon the favourable conservation status of otters and bats as European Protected Species. This conclusion is supported by Scottish Natural Heritage, in their capacity as Scottish Ministers statutory nature conservation advisers."

It was argued, on behalf of the reclaimer, that that document, which bore to be produced by one of the respondents' officers, contained no analysis of alternatives, let alone any justification for the selected route being the last resort. Alternative routes considered in the past had not be considered with Regulation 44 in mind. But it is necessary to recall that at the time of making the orders and schemes, the respondents were carrying out functions under the 1984 Act and that by virtue of Regulation 3(4) the only requirement for them at that stage was to have regard to the requirements of the Habitats Directive so far as may be affected by exercise of those functions. It has to be repeated that the respondents, acting as roads authority in making the orders and schemes, were not acting in relation to whether licences should be granted in terms of the Regulations. SNH had advised them that the proposed development would be compliant with Article 12 of the Directive. In Morge Lord Brown at paragraph 30 said:

"Where, as here, Natural England express themselves satisfied that a proposed development will be compliant with Article 12, the planning authority are, to my mind, entitled to presume that this is so."

In the same case Baroness Hale of Richmond at paragraph 45 said:

"Furthermore, the United Kingdom has chosen to implement Article 12 of the Directive by creating criminal offences. It is not the function of a planning authority to police those offences. ... And it is the function of Natural England to enforce the Directive by prosecuting for these criminal offences (or granting licences to derogate from the requirements of the Directive). The planning authority were entitled to draw the conclusion that, having been initially concerned but having withdrawn their objection, Natural England were content that the requirements of the Regulations, and thus the Directive, were being complied with. Indeed, it seems to me that, if any complaint were to be made on this score, it should have been addressed to Natural England rather than to the planning authority. They were the people with the expertise to assess the meaning of the Updated Bat Survey and whether it did indeed meet the requirements of the Directive. The planning authority could perhaps have reached a different conclusion from Natural England but they were not required to make their own independent assessment."

Applying those dicta to the present case, we are entirely satisfied that what was said by SNH, and in the report of the inquiry, as recorded above, which the respondents took into account was enough for the purpose of the respondents fulfilling their obligation to have regard to the provisions of the Directive and that they did not require to have before them any evidence which put the matter beyond reasonable doubt. They did not require to be completely satisfied that the proposal would not offend Article 12 or that a derogation from it would be permissible and granted, although that is a view which, in substance, they arrived at, having regard to the terms of the decision letter and the assessment and review document published on the same date. On that approach it is nothing to the point that, as the reclaimer contends, there was an inadequacy of reasoning in part due to the exclusion from the remit of the public inquiry detailed consideration of alternatives to the promoted scheme to ascertain if they might have a lesser or no impact on EPS. But, in any event, the Lord Ordinary at paragraph 87 of his opinion observed:

"It does not, in my opinion, follow from the statement in the Commission Guidance that careful balancing of interests is needed that the appropriate authority must necessarily hear evidence and representations at an inquiry before carrying out such a balancing exercise. In the present case, however, there was no question of selection between a route for the AWPR which necessitated the disturbance of protected species and destruction of breeding sites and a route which did not. In particular, according to the evidence accepted by the Reporters, the choice between route options in the Milltimber area was not going to make a difference between carrying out activities (such as construction work) which required a licence and carrying out activities which required no licence. That being so, I am of the opinion that the respondents were correct to address the first two tests at the level of policy requirement for the AWPR. For the reasons given earlier in this opinion, I do not consider that the respondents were under an obligation to subject to scrutiny at a public local inquiry their conclusions that construction of the AWPR was a matter of overriding public interest and that there was no satisfactory alternative to it."

We would endorse those views.

[35] The reclaimer in mounting his attack on the adequacy of reasons in relation to the proposal's compliance with the protection of EPS sought to take some comfort from criticisms by the Lord Ordinary of how matters were expressed both in the assessment and review document and in the decision letter itself. It is true that it appears that paragraph 17 of the decision letter may betray a confusion between the two separate regimes for species which cause an area to be designated as an SAC on the one hand and species which are themselves designated as protected species on the other. That, however, may only be an apparent confusion, as the Lord Ordinary himself records at paragraph 92 of his opinion. As to the Lord Ordinary's other criticisms as regards the way matters were expressed we do not share them. In the case of Morge, Lady Hale, at paragraph 44 said "in my view, it is quite unnecessary for a report such as this to spell out in detail every single one of the legal obligations which are involved in any decision". Those remarks can be applied, in our judgment, to the expression of matters in the decision letter itself and its supporting document in the present case. For all the foregoing reasons the arguments in support of this branch of the reclaiming motion fail.

 

The reclaimer's interest and the right to the remedy sought
[36] Before the Lord Ordinary no argument was advanced as to whether on the hypothesis that all, or any, of the various grounds of attack were considered to be well founded, the reclaimer would be entitled to the remedy he sought, far less whether or not he was a person who was entitled to bring an application under the 1994 Act. Before this court, however, the respondents did raise the issue as to whether the reclaimer would be entitled to the remedy he sought, but did not rely on an argument that he did not qualify as a person entitled to bring an application under the 1984 Act. The two questions, as it happens, may be closely related in the circumstances of the present case. We remind ourselves that these proceedings are not proceedings for judicial review. They are a statutory application brought under the 1984 Act, Schedule 2. The wording of the relevant provisions, Schedule 2(2) and 2(3) are set out in full supra.

[37] The reclaimer placed no material before the court to support the proposition that the schemes or orders or any provision therein substantially prejudice his interests or that they would affect his property. His residence is some significant distance from the leg of the proposal which was the particular target of his attack. There is, therefore, an initial question to be addressed and that is whether or not he is a person "aggrieved" for the purposes of paragraph 2, of Schedule 2. In Ealing Corporation v Jones [1959] 1 QB 384 at 389 Donovan J said:

"I think it is true that if one came to the expression without reference to judicial decision one would say that the words "person aggrieved by a decision" mean no more than a person who had had the decision given against him: but the courts have decided that the words mean more than that and have held that the word 'aggrieved' is not synonymous in this context with the words 'dissatisfied'. The word 'aggrieved' connotes some legal grievance, for example, a deprivation of something, an adverse effect on the title to something, and so on..."

Again in A G of Gambia v N'Jie [1961] AC 617 at 634 the Privy Council said:

"The words "person aggrieved" are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busybody who is interfering in things which do not concern him; but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests"

Helpful guidance as to the scope of the phrase is also to be found from the Commonwealth in the case of Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 128 ALR at 251-252. In that case Lockhart J said:

"The meaning of 'a person aggrieved' is not encased in any technical rules; much depends upon the matter of the particular decision and the extent to which the interest of the applicant rises above that of an ordinary member of the public...

The applicant's interests must not be remote, indirect or fanciful. The interest must be above that of an ordinary member of the public and must not be that of a mere intermedller or busybody."

We, ourselves, would suggest that a person cannot claim to be a "person aggrieved" in relation to the relevant statutory provisions in this case simply because the decision to proceed with the AWPR was against his opinions and views, however strongly held. It seems to us that, on the basis of the information before the court, the reclaimer has been an implacable opponent to the AWPR from its inception and by himself ,and previously also through the agency of an organisation with which he was closely connected, has sought to resist it at every opportunity and on whatever ground appeared to be open to be argued. But he is no more than that and in this respect is no different from, say, someone who lives many hundreds of miles from the proposed route but has, on occasions, to travel to Aberdeen. As was noted the respondents did not take this point, as such, in their submissions. Moreover we make it without having over-looked the fact that, recently, the Supreme Court can be seen to have broadened the basis upon which a person can claim to be entitled to invoke the supervisory jurisdiction of the court in attacking what are perceived to be public wrongs. In doing so their Lordships have placed, in such a context, the concept of locus standi in substitution for the concept of title and interest as that was discussed in Lord Dunedin's famous dictum in D & J Nicol v Dundee Harbour Trustees 1915 SC (HL) 7. This development has occurred in the case of AXA General Insurance Ltd and Others v The Lord Advocate and Others [2011] UKSC 46. So Lord Hope at paragraph 62 of that case states:

"As for the substantive law, I think that the time has come to recognise that the private law rule that title and interest has to be shown has no place in applications to the court's supervisory jurisdiction that lie in the field of public law. The word 'standing' provides a more appropriate indication of the approach that should be adopted."

His Lordship was, however, dealing with the invoking of the court's supervisory jurisdiction, by way of judicial review, which is made clear not only by the context, but his reference to the relevant rule of court in respect of that jurisdiction. At paragraph 63 his Lordship said:

"But I would hold that the words 'directly affected' which appear in Rule 58.8(2) capture the essence of what has to be looked for. One must, of course, distinguish between the mere busybody, to whom Lord Fraser of Tullybelton referred in R v Inland Revenue Commissioners, Ep National Federation of Self Employed and Small Businesses Ltd [1982] AC 617, 646, and the interest of the person affected by or having a reasonable concern in the matter to which the application related. The inclusion of the word 'directly' provides the necessary qualification to the word 'affected' to enable the court to draw that distinction."

[38] In the same case Lord Reed at para. 171 said:

"In my opinion, the time has come when it should be recognised by the courts that Lord Dunedin's dictum pre-dates the modern development of public law, that it is rooted in private law concepts which are not relevant in the context of applications to the supervisory jurisdiction, and that its continuing influence in that context has had a damaging effect on the development of public law in Scotland. This unsatisfactory situation should not be allowed to persist. The time has also come when the courts should cease to use the inappropriate terminology of title and interest in relation to such applications, and should refer instead to standing based upon a sufficient interest.".

It is to be noted that Lord Reed required more than a mere stated interest. Lord Hope in the paragraph cited pointed out that, in judicial review, the test is whether the person is "directly affected". Lord Reed talked of a "sufficient interest" in the particular question and, perhaps, provides some content to what is meant by that at paragraph 170 when he said:

"A requirement that the applicant demonstrate an interest in the matter complained of will not however operate satisfactorily if it is applied in the same way in all contexts. In some contexts, it is appropriate to require an applicant for judicial review to demonstrate that he has a particular interest in the matter complained of: the type of interest which is relevant, and therefore required in order to have standing, will depend on the particular context".

We have already emphasised that this court is not, of course, dealing with an application involving the supervisory jurisdiction of the court, by way of judicial review. We are concerned with a statutory right where the statute itself provides for the basis for review and where the expression "person aggrieved" is used. It may be that that expression could be equiperated with the expression "locus standi" but even if that were so, we would find it difficult, having regard to the specific context and subject matter with which the statute is dealing, and the complaints that have been made by the reclaimer, to consider that he possess "sufficient interest" to clothe him with rights under Schedule 2, paragraph 2.

[39] In any event, as has been seen, the remedy provided for by statute is quashing of the scheme or order or any particular provision thereof. In addition that remedy is only available if certain conditions are met. It was not argued by the reclaimer that the scheme or orders were not within the express powers of the Act nor was it contended that the interests of the reclaimer would be substantially prejudiced by them or in so far as it affects his property. In that situation we have no hesitation in concluding that, had we been with the reclaimer in all or any of his attempts to attack the legality of the schemes and orders, we would not have granted the remedy of quashing them. In that respect we would have followed the approach of McCullough J in Twyford Parish Council v The Secretary of State for the Environment and The Secretary of State for Transport (1990) QB 37. In that case the position was that the Secretary of State for Transport proposed a scheme to extend the M3 motorway between Bar End and Compton near Winchester. The proposed scheme was, after sundry procedure, formally adopted and the orders to facilitate the road were put in place. The applicant sought to challenge those orders on two main grounds. First, that, when considering certain new traffic forecasts, the Secretary of State had acted unlawfully in failing to allow the applicants an opportunity to comment thereon. The second attack was to the effect that the minister had erred in law by failing to make the proper assessment of the environmental effect of the proposed road, as he was obliged to do under the Environment Assessment Directive 85/337/EEC. The court rejected both grounds of attack as being without merit but went further. Having considered the European argument based on the directive, McCullough J went on to say at page 49:

"Had I been of the opposite view the next step would have been to look at paragraph 3 of Schedule 2 to the Highways Act 1980 and to ask whether this would have meant that the scheme was 'not within the powers of the Act' or whether 'there had been a failure to comply with a requirement of the Act' ".

His Lordship went on to say: "In my judgment no prejudice, let alone any substantial prejudice, to the applicants has been shown". His Lordship noted, as is the position in the present case, that none was even alleged. Previously his Lordship, at page 48, had opined:

"I therefore conclude there is no authority for the view advanced by Mr Mole, that if the terms of a directive, which should have been implemented but had not, were breached, an individual who had not thereby suffered could enforce it against the defaulting State."

At page 50 his Lordship concluded:

"In summary, therefore, even if the directive had applied ..., even if its requirements had not been met and even if this had meant that the confirmation of the scheme was 'not within the powers of the Act' the scheme would not have been quashed."

[40] Having also rejected the applicant's argument regarding failure to consult adequately McCullough J went on at page 59 to state:

"I am satisfied that the omission of the Secretary of State to invite further representations caused the applicants no prejudice. Given that the new material did not, in the view of the Secretaries of State, alter the balance of advantage, it is inconceivable that the decision could have been affected by the points that the affidavits say the applicants would have wanted to advance.

I can well understand their unhappiness that, there having been an inquiry, something further, which was not sent to them, was taken into account before the Secretary of State for Transport decided to confirm the scheme which had originated in his own department. But the initial impression one might get that the Secretary of State was acting as judge in his own cause cannot survive Lord Diplock's exegesis of the true nature of the ministerial function. The court cannot grant relief merely because the applicants are unhappy about what happened. The interests of the general public require that the scheme be not quashed in the absence of, at the very least, a real risk of prejudice to the applicant, and of this I am satisfied there was none."

We consider the foregoing dicta from that case can, and ought, to be applied to the circumstances of the present case. This is one of those cases where, even if the court had reached the view that the decision maker had acted in such a way that certain legal requirements had been breached, its discretion to grant the relief sought should not be exercised (see Bolton MBC v Environmental Secretary and Manchester Authority (1990) 61P and C.R 343 per Glidewell LJ at page 353. It would have been quite inappropriate, in our view, that the project, whose genesis came about some 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 this reclaimer. As senior counsel for the respondents pointed out while there have been, in the past, a significant number of objectors at various stages of the proposal's development, none of them has now sought to have the scheme and orders quashed. The interests of those members of the public who are in favour of the project, and have been waiting for its implementation for a very long time, clearly argue against the quashing of the schemes and orders. In that connection we remind ourselves of Lord Diplock's dictum at page 102 in Bushell:

"Upon the substantive matter, viz., whether the scheme should be confirmed or not, there is a third party who was not represented at the inquiry, the general public as a whole whose interests it is the minister's duty to treat as paramount."

[41] For all the foregoing reasons the reclaiming motion is refused.