UK: Challenges and European Law

Last Updated: 19 August 2011
Article by Murray Shaw

Lord Tyre issued his judgement in relation to the challenge to the Aberdeen Western Peripheral Route (the AWPR) on 11 August 2011 (2011CSOH131).  The decision is a lengthy one and is of interest because of the varying different grounds relied upon, a number of which had not properly been before the Scottish Courts before.  It is also the first case of significance in Scotland where one of the parties has proceeded protected by a protective expenses order.  In fact in his judgement Lord Tyre did not deal with the issue of costs or expenses but decided to fix a hearing to hear submissions on that topic having regard to the outcome of the case.

The AWPR has long been planned, the process of exploring routes having started back in the 1970's.  Over the intervening years various routes were identified with a public consultation in 2002.  In 2003 Scottish Ministers confirmed that while the route would be promoted as a trunk road the preferred corridor did not include any link to Stonehaven.

In 2004 the Minister of Transport confirmed that a number of options for the southern leg should be examined to take account of certain sensitivities including the impact upon a special needs community.  Accordingly 5 options were considered.  As a consequence of this consultation process together with a report from traffic consultants instructed by the Scottish Government, it was announced that in effect a hybrid route was to be the preferred route involving a link from Stonehaven.  This approach was controversial. 

While a public inquiry was held to consider objections to the relevant scheme and objections to compulsory purchase orders which were required, the scope of the inquiry was constrained by Scottish Ministers on the basis that the principle for the road had been accepted and therefore no consideration was to be given to that principle under reference to economic policy or strategic consideration.  The inquiry therefore was limited to looking at technical aspects of the route choice including environmental impact. 

Two appeals came forward, one at the instance of a Mr Walton (supported by a pressure group called "Road Sense" – the protective costs order in effect protected Mr Walton and Road Sense) while the other was at the instance of a Mr and Mrs Fraser who owned a property which they contended would be affected to an adverse extent as a result of the construction of the road (albeit the road would not actually be constructed directly on their land).  The respective grounds of appeal were not the same though there were common elements.  The key grounds of appeal included:-

  1. Infringement of human rights on a number of grounds;
  2. A breach of community rights in relation to participation in the decision making process;
  3. The restricted remit of the inquiry was unreasonable, unfair and procedurally inept;
  4. There had been a breach of European Directives in relation to habitats and protected species.

The decision is lengthy and worth reading in its own right.  In relation to a number of the grounds of appeal it is clear that Lord Tyre considered that the opportunities for public participation in relation to the planning processes in connection with the AWPR were in answer to the grounds of challenge. 

As noted one of the key grounds of challenge related to the restriction imposed by Scottish Ministers in respect of the inquiry process.  This argument manifested itself in a number of ways both in terms of challenges based upon concepts familiar to UK law such as unreasonableness (in a judicial law sense) but equally in respect of challenges based upon European Law.  In broad terms Lord Tyre took the view that in effect the decision making process was, as he put it, a "tiered" decision making process consistent with a number of European Directives, the consequence of that being that Scottish Ministers could (as they did) concentrate on specific issues at the inquiry stage.  Interestingly enough a complaint had been made to the Aarhus Convention Compliance Committee.  The Aarhus Convention is a convention about public participation in decision making processes which has been referred to or founded upon in a number of UK cases.  Generally speaking the UK's record in relation to compliance with the Aarhus Convention is not thought to be good.  This complaint however was rejected by the Aarhus Compliance Committee.  While Lord Tyre did not found upon that rejection per se he did refer to the fact that their logic appeared to be similar to his own. 

So far as the UK challenge based upon concepts of unreasonableness was concerned the key issue appeared to be to what extent it was unfair or irrational not to hold an inquiry where the remit of that inquiry included consideration of the policy justification for the construction of the road.  Lord Tyre rejected that ground of challenge as a matter of principle based upon previous case law though made the point that there had been an extensive consultation process in any event. 

Lord Tyre's approach in relation to this question appears to be broadly similar to the approach taken by the court in other cases – it is very difficult to persuade the court to intervene in policy decisions of this sort.

There were challenges based upon failures to comply with the Habitats Directive both concerning the River Dee but separately in respect of protected species.

So far as the River Dee, Lord Tyre accepted that while an "appropriate assessment" (i.e. an assessment of the implications for the protected area) required to be made before the appropriate consent could be given, there was no specific requirement as to how that appropriate an assessment should be recorded providing the correct tests had clearly been applied.  In effect the party carrying out the appropriate assessment had to decide whether or not the relevant project in relation to which consent was sought would have a significant effect on the protected area alone or in combination with other projects.  Having considered the relevant documentation Lord Tyre considered that the appropriate assessment had been carried out. 

The position in relation to protected species was more difficult from the point of view of Scottish Minister.  The species in question were otters and 5 different types of bat.  The Habitats Directive distinguishes between the appropriate assessment (at the permission or consent stage) and the separate but distinct obligation of issuing a licence to authorise specific works to be carried out.  Lord Tyre accepted a decision in the Supreme Court that even where one body might both be a competent authority for the purpose of carrying out an appropriate assessment and an appropriate authority in relation to the licensing obligations, that body or organisation had to carry out the 2 roles separately having regard to the relevant tests.  At the appropriate assessment stage only if the competent authority were satisfied that a licence was unlikely to be granted should the relevant permission or consent be withheld. 

While Lord Tyre accepted the distinction between the 2 different processes, he did accept that where one body was responsible in 2 different guises then the arguments became difficult and to some extent unreal.  He was particularly critical of the documentation produced by Scottish Ministers in relation to their role as an appropriate authority.  Lord Tyre observed that he found it surprising that the reference to European protective species was limited, there was confusion between the tests relevant to the designation of an area and those relevant to the protection of certain species and the allowance of activities which might affect these.  On balance however he came to the conclusion (though it seems to have been finely balanced) that Scottish Ministers had done enough. 

The last major issue of significance in the decision related to the compatibility of the decision of Scottish Ministers under the European Convention on Human Rights – issues brought forward by Mr and Mrs Fraser.  They founded upon the absence of a state funded system of legal representation which prevented them from (they argued) participating effectively in the public inquiry (though they did have legal aid for the Court of Session challenge) and separately that the limited scope of the inquiry denied them an opportunity of challenging the scheme and therefore was incompatible with their right to peaceful enjoyment of their possessions (in effect this was a reference to Article 1 of the First Protocol to the Convention).

Lord Tyre rejected both arguments under reference to European case law.  Specifically (and possibly most significantly) he questioned whether Article 6 was actually engaged (the right to a proper hearing).  The issue was whether or not the civil rights of Mr and Mrs Fraser were adversely affected by the decision they complained of.  Based upon a finding of the Reporters for the purpose of the appeal he accepted that they were so engaged but then went on to hold that the absence of legal aid for the inquiry did not result in a breach of the Article.  In relation to the Article 1, Protocol 1 challenge, Lord Tyre held that adverse impact was not in itself sufficient to justify a challenge if there has been no diminution in the value of the property.  From the evidence before him (particularly in the Reporter's findings) that referred to such diminution and therefore this challenge was unsuccessful.

While this decision may be appealed, as long as it stands it is a decision of some interest and significance.  It shows the difficulty of challenging decisions of Scottish Ministers in relation to "planning type" issues.  Reliance upon European rights has not made good the difficulties in this area of law which have existed for some considerable time.  It is interesting that some 10 or 11 years after European Convention Rights become directly enforceable under UK law they are yet to have any real significant effect in the "planning" sphere in general terms.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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