Supreme Court judgment in Walton v The Scottish…

On 17 October 2012, the Supreme Court gave judgment in Walton v The Scottish Ministers [2012] UKSC 44 –a case which has important implications for the field of strategic environmental assessment (“SEA”).

The appeal concerned a challenge to the validity of schemes and orders made by the Scottish Ministers under the Roads (Scotland) Act 1984 (‘the 1984 Act’) to allow the construction of a road network bypassing Aberdeen to the west of the city. A partnership of local public and private bodies had produced a regional transport strategy (“the TS”) setting out and costing various proposals, including a ‘western peripheral route’ (“the WPR”) which was intended to reduce congestion in Aberdeen.

The Scottish Ministers agreed to proceed with the WPR, but in the light of opposition they decided to revise the scheme so as to include a road connecting Stonehaven to the WPR (‘the Fastlink’). It was intended that the Fastlink would reduce congestion on the A90 between Stonehaven and Aberdeen. The Ministers subsequently published Environmental Impact Assessments under s.20A of the 1984 Act, on the basis that the scheme fell within the scope of the Environmental Assessment Directive (‘the EIA Directive’).

The Appellant was the chairman of Road Sense, a local organisation opposing the WPR whose members resided along or close to the proposed route. A public inquiry was held to consider environmental and technical issues associated with the WPR, but not the issue of principle i.e. whether to proceed with the WPR at all. Following the Inquiry, the Scottish Parliament approved the relevant orders and schemes.

The Appellant challenged the validity of WPR. Before the Supreme Court, the Appellant argued that the Fastlink had been adopted without the consultation required by the Strategic Environmental Assessment Directive (‘the SEA Directive’), and that that the scope of the public inquiry should have included the question whether the Fastlink was required, under common law principles of procedural fairness.

The Supreme Court unanimously dismissed his appeal. The Court began by noting 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’ (see [11-14, 24]).

The Supreme Court assumed that the TS qualified as a ‘plan or programme’ under the SEA Directive (see [62, 100, 150]), but held that the Fastlink was not a modification to that plan or programme, and therefore did not trigger the consultation requirements of the SEA Directive. The WPR was a specific ‘project’ undertaken following the TS, and the Fastlink was a modification of that project, rendering it subject to the EIA Directive’s requirements instead (see [64-69, 99, 102, 150]).

The Supreme Court also held that the scope of the Inquiry had been fair. There was no statutory obligation to assess the economic, policy or strategic justification for the Fastlink and the Appellant did not have a legitimate expectation that the Inquiry would assess those matters (see [72-3, 101-102]).

This decision, along with other important SEA developments will be discussed at the Landmark Chambers SEA seminar on 24 October 2012.