A challenge against the Road Schemes and Orders for the Aberdeen Western Peripheral Route

18 August 2011

Walton and others v Scottish Ministers [2011] CSOH 131

On 11th August 2011, Lord Tyre issued his opinion in this major planning appeal.  The appellants challenged various road schemes and orders made by the Scottish Ministers under the Roads (Scotland) Act 1984 following prolonged policy development, and a public local inquiry held in 2008.  At an earlier hearing the court granted a protective expenses order in favour of certain appellants: see Road Sense v Scottish Ministers [2011] Env. LR 22, [2011] CSOH 10.  When Road Sense later withdrew from the appeal, the benefit of that order was effectively transferred to the appellant Mr Walton, the other appellants being in receipt of legal aid.  The appellants raised a variety of interesting challenges:-

• The restricted remit given to the Reporters by the Scottish Ministers was said to constitute a breach of the appellants' directly effective EU law right of public participation in environmental decision making.
• The restricted remit was said to be unreasonable and procedurally unfair.
• The adequacy of reasons was challenged.
• The Ministers were said to have failed to comply with the Habitats Directive in relation to both the River Dee special area of conservation, and certain European Protected Species.
• Certain appellants who owned a farm close to the proposed route for the road, challenged the lack of legal aid at the earlier local inquiry, arguing that this violated their rights under article 6 of the ECHR in circumstances where they asserted that the proposed scheme constituted an interference with their property rights under article 1 of the First Protocol.
• A subsidiary argument was made by reference to the EU Charter of Fundamental Rights.

In a detailed Opinion, Lord Tyre rejected all of the grounds of appeal.  The case is useful for its discussion of human rights, legal aid, environmental law and planning procedures.

James Mure Q.C of Axiom appeared for the Scottish Ministers.

http://www.scotcourts.gov.uk/opinions/2011CSOH131.html