UKSC 44
On appeal from:  CSIH 19
Walton (Appellant) v The Scottish Ministers (Respondent) (Scotland)
Lord Hope, Deputy President
JUDGMENT GIVEN ON
17 October 2012
Heard on 9 and 10 July 2012
Aidan O'Neill QC
(Instructed by Patrick Campbell and Company Solicitors)
James Mure QC
Lorna Drummond QC
(Instructed by Scottish Government Legal Directorate Litigation Division)
The Roads (Scotland) Act 1984
"The Secretary of State shall keep under review the national system of routes for through traffic in Scotland, and if he is 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 either—
(a) that any existing road, or any road proposed to be constructed by him, should become a trunk road, or
(b) that any trunk road should cease to be a trunk road,
he may by order direct that the road shall become, or as the case may be shall cease to be, a trunk road as from such date as may be specified in that regard in the order."
"(3) A roads authority may be authorised by means of a scheme under this section to provide, along a route prescribed by the scheme, a special road for the use of traffic of any class so prescribed."
"2. 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 of 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 that notice is first published,
make an application as regards that validity to the Court of Session.
3. 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.
4. Subject to paragraph 3 above, a scheme or order to which this Schedule applies shall not, either before or after it has been made or confirmed, be questioned in any legal proceedings whatever, and shall become operative on the date on which the notice required by paragraph 1 above is first published or on such later date, if any, as may be specified in the scheme or order."
The SEA Directive
"The specific objective pursued by the assessment of plans and programmes is evident from the legislative background: the SEA Directive complements the EIA Directive, which is more than ten years older and concerns the consideration of effects on the environment when development consent is granted for projects.
The application of the EIA Directive revealed that, at the time of the assessment of projects, major effects on the environment are already established on the basis of earlier planning measures (Proposal for a Council directive on the assessment of the effects of certain plans and programmes on the environment, COM(96) 511 final, p 6). Whilst it is true that those effects can thus be examined during the environmental impact assessment, they cannot be taken fully into account when development consent is given for the project. It is therefore appropriate for such effects on the environment to be examined at the time of preparatory measures and taken into account in that context."
"An abstract routing plan, for example, may stipulate that a road is to be built in a certain corridor. The question whether alternatives outside that corridor would have less impact on the environment is therefore possibly not assessed when development consent is subsequently granted for a specific road-construction project. For this reason, it should be considered, even as the corridor is being specified, what effects the restriction of the route will have on the environment and whether alternatives should be included."
"The two Directives are to a large extent complementary: the SEA is 'up-stream' and identifies the best options at an early planning stage, and the EIA is 'down-stream' and refers to the projects that are coming through at a later stage. In theory, an overlap of the two processes is unlikely to occur. However, different areas of potential overlaps in the application of the two Directives have been identified.
In particular, the boundaries between what constitutes a plan, a programme or a project are not always clear, and there may be some doubts as to whether the 'subject' of the assessment meets the criteria of either or both of the Directives."
In relation to that passage, it should be noted that a project need not necessarily be a "downstream" development of an option identified at an earlier "upstream" planning stage.
"1. An environmental assessment, in accordance with articles 4 to 9, shall be carried out for plans and programmes referred to in paragraphs 2 to 4 which are likely to have significant environmental effects.
2. Subject to paragraph 3, an environmental assessment shall be carried out for all plans and programmes,
(a) which are prepared for agriculture, forestry, fisheries, energy, industry, transport, waste management, water management, telecommunications, tourism, town and country planning or land use and which set the framework for future development consent of projects listed in Annexes I and II to [the EIA Directive] …"
"Plans and programmes may, however, influence the development consent of individual projects in very different ways and, in so doing, prevent appropriate account from being taken of environmental effects. Consequently, the SEA Directive is based on a very broad concept of 'framework'.
This becomes particularly clear in a criterion taken into account by the member states when they appraise the likely significance of the environmental effects of plans or programmes in accordance with article 3(5): they are to take account of the degree to which the plan or programme sets a framework for projects and other activities, either with regard to the location, nature, size and operating conditions or by allocating resources (first indent of point 1 of Annex II). The term 'framework' must therefore be construed flexibly. It does not require any conclusive determinations, but also covers forms of influence that leave room for some discretion."
"For the purposes of this Directive:
(a) 'plans and programmes' shall mean plans and programmes, including those co-financed by the European Community, as well as any modifications to them:
- which are subject to preparation and/or adoption by an authority at national, regional or local level or which are prepared by an authority for adoption, through a legislative procedure by Parliament or Government, and
- which are required by legislative, regulatory or administrative provisions."
"According to Article 1, the objective of the SEA Directive is to provide for a high level of protection of the environment and to contribute to the integration of environmental considerations into the preparation and adoption of plans and programmes by ensuring that an environmental assessment is carried out of certain plans and programmes which are likely to have significant effects on the environment.
The interpretation of the pair of terms 'plans' and 'projects' should consequently ensure that measures likely to have significant effects on the environment undergo an environmental assessment."
It is also necessary to bear in mind that the directive is intended to be applied in member states with widely differing arrangements for the organisation of developments affecting the environment. Its provisions, including terms such as "plan" and "programme", have therefore to be interpreted and applied in a manner which will secure the objective of the directive throughout the EU.
"It is important to distinguish between modifications to plans and programmes, and modifications to individual projects, envisaged under the plan or programme. In the second case, (where individual projects are modified after the adoption of the plan or programme), it is not [the SEA Directive] but other appropriate legislation which would apply. An example could be a plan for road and rail development, including a long list of projects, adopted after SEA. If, in implementing the plan or programme, a modification were proposed to one of its constituent projects and the modification was likely to have significant environmental effects, an environmental assessment should be made in accordance with the appropriate legal provisions (for example, the Habitats Directive, and/or EIA Directive)."
"Where plans and programmes form part of a hierarchy, member states shall, with a view to avoiding duplication of the assessment, take into account the fact that the assessment will be carried out, in accordance with this directive, at different levels of the hierarchy. For the purpose of, inter alia, avoiding duplication of assessment, member states shall apply article 5(2) and (3)."
"1. An environmental assessment carried out under this directive shall be without prejudice to any requirements under [the EIA Directive] and to any other Community law requirements.
2. For plans and programmes for which the obligation to carry out assessments of the effects on the environment arises simultaneously from this directive and other Community legislation, member states may provide for coordinated or joint procedures fulfilling the requirements of the relevant Community legislation in order, inter alia, to avoid duplication of assessment."
"3. The obligation referred to in Article 4(1) shall apply to the plans and programmes of which the first formal preparatory act is subsequent to the date referred to in paragraph 1. Plans and programmes of which the first formal preparatory act is before that date and which are adopted or submitted to the legislative procedure more than 24 months thereafter, shall be made subject to the obligation referred to in Article 4(1) unless Member States decide on a case by case basis that this is not feasible and inform the public of their decision."
The implication is that article 4(1) does not apply to plans and programmes which were adopted or submitted to legislative procedure prior to 21 July 2004.
The factual background
"The key roles of the WPR are to enable through-traffic to by-pass Aberdeen, which in turn allows for prioritisation for buses, cycles and pedestrians within the urban area. It also improves peripheral movements around the City, improving access to Park & Ride sites and relieving heavily-used, unsuitable rural routes. It will improve accessibility to existing and planned employment locations and open up possibilities for future land release. Finally, it will transform accessibility of freight and business service movements to and from the north and west of Aberdeen."
The report proceeded on the basis that the design and construction of the WPR would be undertaken by the local roads authorities, subject to the continued provision by the Ministers of the necessary funding.
"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 [the reporters] to hold a public local inquiry and to report with respect to objections to the associated schemes and orders…
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 referring to the special road scheme are only relevant to the inquiry insofar as these set the context for the Aberdeen Western Peripheral Route.
Scottish Ministers have directed that they only wish to be advised on the technical aspects of the route choice including the environmental statement published in connection with the special road scheme and any opinions expressed thereon. Given the assessment approach taken in the environmental statement, Scottish Ministers wish to be advised on the technical and environmental issues associated with the special road scheme together with its individual components."
Issues arising in relation to the SEA Directive
Common law fairness
A person aggrieved?
"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."
"But in my opinion the fact that all three appellants were present at, and made representations at the public inquiry is sufficient for them to be persons 'aggrieved' … they were entitled to expect that the Secretary of State, in considering their representations, would act within the powers conferred upon him by the statute and … they are entitled to appeal against his decision on the ground that he has not done so."
The same approach has been adopted in England and Wales: see for example Turner v Secretary of State for the Environment (1973) 28 P&CR 123, endorsed by the Court of Appeal in Times Investment Ltd v Secretary of State for the Environment (1990) 61 P&CR 98. Many other decisions to the same effect are noted in Woolf, Jowell and Le Sueur, De Smith's Judicial Review (6th edition, 2007), para 2-060, and in Wade and Forsyth, Administrative Law (10th edition, 2009), p 630.
Standing to invoke the supervisory jurisdiction
"I would not like to risk a definition of what constitutes standing in the public law context. But I would hold that the words 'directly affected' which appear in rule 58.8(2) capture the essence of what is 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 Comrs, Ex p National Federation of Self-Employed and Small Businesses Ltd  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. A personal interest need not be shown if the individual is acting in the public interest and can genuinely say that the issue directly affects the section of the public that he seeks to represent."
"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 upon the particular context. In other situations, such as where the excess or misuse of power affects the public generally, insistence upon a particular interest could prevent the matter being brought before the court, and that in turn might disable the court from performing its function to protect the rule of law … What is to be regarded as sufficient interest to justify a particular applicant's bringing a particular application before the court, and thus as conferring standing, depends therefore upon the context, and in particular upon what will best serve the purposes of judicial review in that context."
Statutory challenge – domestic law
i) The statutory procedure may be brought only by "a person aggrieved" by the scheme or order.
ii) It must be brought within six weeks from the publication of the statutory notice of the making of scheme or order; there is no power to extend that time-limit.
iii) It is an exclusive procedure. The validity of a scheme or order may not be challenged by any other procedural route before or after it is made.
iv) There are two possible grounds for challenge: (a) not within the powers of the Act (b) failure to comply with any requirement of the Act or regulations made under it. Under (b), the applicant must also show substantial prejudice to his interests caused by the failure.
v) If the grounds are established the court "may" make an order; it is on its face a discretionary jurisdiction.
vi) The only remedies available to the court in terms of the Act are (a) an interim order suspending operation of the scheme or order pending final determination by the court, (b) a final order quashing the scheme or order either generally or "in so far as it affects the property of the applicant".
"Normally in applications to quash, for the claimant to succeed in quashing the decision he must have been 'substantially prejudiced' by the failure to comply with the statute's procedural conditions. Under both substantive and procedural grounds of review the courts possess a residual discretion not to quash a decision where there has been no prejudice or detriment to the claimant and to refuse relief in exceptional circumstances."
Statutory Challenge - Environmental Assessment
EIA and SEA in Scottish law
"Even in a purely domestic context, the discretion of the court to do other than quash the relevant order or action where such excessive exercise of power is shown is very narrow. In the Community context, unless a violation is so negligible as to be truly de minimis and the prescribed procedure has in all essentials been followed, the discretion (if any exists) is narrower still: the duty laid on member states by article 10 of the EC Treaty, the obligation of national courts to ensure that Community rights are fully and effectively enforced, the strict conditions attached by article 2(3) of the Directive to exercise of the power to exempt and the absence of any power in the Secretary of State to waive compliance (otherwise than by way of exemption) with the requirements of the Regulations in the case of any urban development project which in his opinion would be likely to have significant effects on the environment by virtue of the factors mentioned, all point towards an order to quash as the proper response to a contravention such as admittedly occurred in this case."
"A court is therefore not entitled retrospectively to dispense with the requirement of an EIA on the ground that the outcome would have been the same or that the local planning authority or Secretary of State had all the information necessary to enable them to reach a proper decision on the environmental issues. Although section 288(5)(b) [of the Town and Country Planning Act 1990], in providing that the court 'may' quash an ultra vires planning decision, clearly confers a discretion upon the court, I doubt whether, consistently with its obligations under European law, the court may exercise that discretion to uphold a planning permission which has been granted contrary to the provisions of the Directive. To do so would seem to conflict with the duty of the court under article 10 (ex article 5) of the EC Treaty to ensure fulfilment of the United Kingdom's obligations under the Treaty. In classifying a failure to conduct a requisite EIA for the purposes of section 288 as not merely non-compliance with a relevant requirement but as rendering the grant of permission ultra vires, the legislature was intending to confine any discretion within the narrowest possible bounds. It is exceptional even in domestic law for a court to exercise its discretion not to quash a decision which has been found to be ultra vires: see Glidewell LJ in Bolton Metropolitan Borough Council v Secretary of State for the Environment (1990) 61 P & CR 343, 353. [Counsel for the Respondent] was in my opinion right to concede that nothing less than substantial compliance with the Directive could enable the planning permission in this case to be upheld."
"The speeches [in Berkeley] need to be read in context. Lord Bingham emphasised the very narrow basis on which the case was argued in the House (p 607F-608A). The developer was not represented in the House, and there was no reference to any evidence of actual prejudice to his or any other interests. Care is needed in applying the principles there decided to other circumstances, such as cases where as here there is clear evidence of a pressing public need for the scheme which is under attack." (para 47)
"But I agree with the observation of Carnwath LJ in Bown v Secretary of State for Transport, Local Government and the Regions  Env LR 26, 526, that the speeches in Berkeley need to be read in context. Both the nature of the flaw in the decision and the ground for exercise of the discretion have to be considered. In Berkeley, the flaw was the complete absence of an EIA and the sole ground for the exercise of the discretion was that the result was bound to have been the same."
"To this pointlessness must be added the waste of time and resources, both for the company and the Agency, of going through another process of application, consultation and decision."
The courts below had accordingly been right to exercise their discretion against quashing the permit.
"As to that submission, it is clear from settled case-law that under the principle of cooperation in good faith laid down in Article 10 EC the Member States are required to nullify the unlawful consequences of a breach of Community law... Such an obligation is owed, within the sphere of its competence, by every organ of the Member State concerned...
Thus, it is for the competent authorities of a Member State to take, within the sphere of their competence, all the general or particular measures necessary to ensure that projects are examined in order to determine whether they are likely to have significant effects on the environment and, if so, to ensure that they are subject to an impact assessment... Such particular measures include, subject to the limits laid down by the principle of procedural autonomy of the Member States, the revocation or suspension of a consent already granted, in order to carry out an assessment of the environmental effects of the project in question as provided for by Directive 85/337.
The Member State is likewise required to make good any harm caused by the failure to carry out an environmental impact assessment.
The detailed procedural rules applicable are a matter for the domestic legal order of each Member State, under the principle of procedural autonomy of the Member States, provided that they are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the Community legal order (principle of effectiveness)....
So far as the main proceedings are concerned, if the working of Conygar Quarry should have been subject to an assessment of its environmental effects in accordance with the requirements of Directive 85/337, the competent authorities are obliged to take all general or particular measures for remedying the failure to carry out such an assessment.
In that regard, it is for the national court to determine whether it is possible under domestic law for a consent already granted to be revoked or suspended in order to subject the project in question to an assessment of its environmental effects, in accordance with the requirements of Directive 85/337, or alternatively, if the individual so agrees, whether it is possible for the latter to claim compensation for the harm suffered..." (emphasis added)
The passage which I have emphasised, which was repeated in the court's answer to the specific question, contains as I read it an authoritative statement of the two applicable principles of "equivalence" and "effectiveness". On the facts of that case there can have been little doubt as to the practical effect of the project on Mrs Wells' environment, her home being on the road separating the two halves of the quarry (para 21-22). However, it is of interest that the court envisaged the payment of compensation, if possible under national law, as a possible alternative to revoking the consents. It is not entirely clear why that should have depended on her agreement, rather than being a matter for the court's discretion. However, that possibility indicates that the public interest in nullifying an action taken in breach of European law is not absolute, and that the remedy may in some circumstances be tailored to the extent of the practical damage, if any, suffered by a particular applicant.
"47 The fundamental objective of Directive 2001/42 would be disregarded if national courts did not adopt in such actions brought before them, and subject to the limits of procedural autonomy, the measures, provided for by their national law, that are appropriate for preventing such a plan or programme, including projects to be realised under that programme, from being implemented in the absence of an environmental assessment."
Form of order
LORD KERR AND LORD DYSON