United Kingdom
Remedies, Standing, Environmental Impact Assessments, Land Use, Access to Justice, Property, Cooperation, Jurisdiction, Air pollution, Wildlife
The present Supreme Court decision is considering an appeal from the Inner House in respect of a challenge to the schemes and orders made by the Scottish Ministers to allow construction of an Aberdeen bypass. Mr Walton is the Chaiman of Roadsense (which campaigns against the Aberdeen bypass). His primary argument was that part of the scheme linking the bypass with Stonehaven (known as the Fastlink) was adopted without the public consultation required under the Strategic Environmental Assessment Directive. The Supreme Court rejected this argument noting that Strategic Environmental Assessments are required for “plans and programmes”. Although the regional transport strategy which gave rise to the Aberdeen bypass was a “plan or a programme”, the Fastlink (which had been a adopted following a campaign against an alternative route) was a modification to a “project” and, as such, was subject to the Environmental Assessment Directive rather than the SEA Directive. The Court notes that the SEA and EIA Directives require environmental assessments to be carried out in different but mutually complementary circumstances. The SEA Directive is concerned with the environmental effects of ‘plans and programmes’ which set the framework for future development consent of ‘projects’. The EIA Directive is concerned with the environmental impact of specific ‘projects’. With regard to the fairness of the public inquiry, it was not argued that the Ministers were obliged by statute to assess the economic, policy or strategic justifications for the Fastlink. Nor was it argued that the Appellant had a legitimate expectation that the scope of the inquiry would include that assessment. In those circumstances, there was nothing to suggest that its remit was unfair to the Appellant. The Court notes that, when considering whether an individual is a ‘person aggrieved’, as he must be in order to raise a challenge under paragraph 2 of schedule 2 to the 1984 Act, the legislative and factual context will be important. Given the extent of the Appellant’s participation in the consultative procedures under the 1984 Act, he was indubitably a ‘person aggrieved’ under that Act. It would be inconsistent with the purpose of environmental law to require that a person’s private interests must necessarily be affected for him to be a such a person, as environmental law proceeds on the basis that the environment is of legitimate concern to everyone. If an individual or organisation has a genuine interest in and sufficient knowledge of an environmental issue to qualify them to raise issues in the public interest, they should be regarded as a ‘person aggrieved'. The Court considers that the nature of a person’s interest will have a bearing on the court’s exercise of discretion as to the remedy, if any, which should be granted where a challenge such as the Appellant’s is successful. The Appellant would not have been entitled to a remedy in any event. The exercise of discretion to grant a remedy depends on the factual and statutory context, and there would be such prejudice to countervailing public and private interests that it would be extraordinary if it could not be taken into account in deciding whether the orders creating the Fastlink were to be quashed. Nothing argued before the court suggested that this position is not in line with European legal principles on environmental assessment.