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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Walton & ors v The Scottish Ministers [2011] ScotCS CSOH_131 (11 August 2011)
URL: http://www.bailii.org/scot/cases/ScotCS/2011/2011CSOH131.html
Cite as: 2011 GWD 34-703, [2011] CSOH 131, [2011] ScotCS CSOH_131, 2011 SCLR 686

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OUTER HOUSE, COURT OF SESSION

[2011] CSOH 131

XA53/10

XA56/10

OPINION OF LORD TYRE

in appeals under Schedule to the Roads (Scotland) Act 1984

WILLIAM WALTON

and

JOHN WEIR FRASER and MRS MAGGIE FRASER

Appellants;

against

A decision made by the Scottish Ministers and as contained in a letter dated 21 December 2009 from the Director of Transport, Transport Directorate, the Scottish Government to the Chief Executive of Transport Scotland, intimating approval of certain Schemes and Orders in connection with the Aberdeen Western Peripheral Route, and in respect of the Schemes and Orders approved by resolution of the Scottish Parliament of which intimation was given by Notices in the Edinburgh Gazette of 26 March 2010

Respondents:

____________

Appellant (Walton): Gale QC, Munro; Drummond Miller LLP

Appellants (Frasers): O'Neill QC, Pirie; Drummond Miller LLP

Respondents (Scottish Ministers): Mure QC, Drummond; Scottish Government Legal Directorate

11 August 2011
Introduction

[1] These two appeals, which I heard together, were brought to this court under Schedule 2 to the Roads (Scotland) Act 1984. They concern a decision of the Scottish Ministers ("the respondents") to make a number of special road orders, trunk road orders, special road schemes, side road orders, detrunking orders, a redetermination order and a rights of way order all in connection with the construction of an Aberdeen Western Peripheral Route ("AWPR"). The respondents' decision was published on 21 December 2009 and followed upon a public local inquiry held at Aberdeen on various dates in 2008. The report of the inquiry, including the Reporters' conclusions and recommendations, was published on 30 June 2009. For the reasons set out in the opinion which follows, I have decided that both appeals should be refused.

Trunk roads and special roads: the statutory framework


[2] Section 2 of the Roads (
Scotland) Act 1984 imposes a duty upon the respondents to manage and maintain trunk roads and "special roads" (a term originally intended to refer to motorways) in Scotland. Under section 5, the respondents are obliged to keep under review the trunk road system and, if 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, may direct that any existing or proposed road shall become a trunk road. Section 7 of the Act empowers a roads authority to obtain authorisation of a scheme to provide a special road by means either of construction or appropriating an existing road as a special road. Where (as in the present case) the roads authority for the special road are the respondents, they must, before making such a scheme, give due consideration to the requirements of local and national planning and to the requirements of agriculture and industry. Under section 143A of the Act (inserted in 2007), the respondents may direct that a proposed trunk road would constitute a "national development", in which case the statutory instrument which contains an order under section 5 shall be laid before the Scottish Parliament for approval.


[3] Section 20A of the 1984 Act is a key statutory provision in these proceedings. In its original form, this section was inserted into the 1984 Act in 1988 to implement obligations imposed by European Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment ("the EIA Directive"). In its current form it imposes a duty upon the respondents to publish, not later than the date when details of such a project are published, an environmental statement for the project. The 1985 Directive was amended in 1997 (by Council Directive 97/11/EC) and again in 2003 (by Directive 2003/35/EC, the "Public Participation Directive"). The 2003 amendment is of particular importance as its stated objective was to contribute to the implementation of obligations of the European Community arising under the Aarhus Convention dated
25 June 1998 on, inter alia, public participation in decision-making in environmental matters. Amendments were made to section 20A in 1999 (by SSI 1999/1) and again in 2006 (by SSI/2006/614). According to the executive note which accompanied the latter Regulations, their objective was to transpose into national legislation the amendment of the EIA Directive by the Public Participation Directive. There was dispute between the parties as to whether this had in fact been achieved by the 2006 Regulations but it was common ground that if full and effective transposition had not been achieved, the appellants could rely upon the direct effect of the EIA Directive as amended. Section 20A, as thus amended, contains detailed provisions for publication by the respondents of the environmental statement. Their purpose is to ensure that members of the public who are likely to be concerned are given a reasonable opportunity to express an opinion on it before the respondents decide whether or not to proceed with the project.


[4] Parts I and II of Schedule 1 to the 1984 Act contain detailed provisions regarding the publication and service of notices of proposed orders and schemes under the Act regarding trunk roads and special roads respectively. Concurrent proceedings may be taken for trunk road and special road schemes, and also for such schemes and for compulsory acquisition of land (1984 Act, section 111 and Schedule 1, paragraph 17). If an objection is received from a person upon whom a notice required to be served, or from any other person appearing to the respondents to be affected, and the objection is not withdrawn, a public local inquiry must be held (paragraphs 5 and 11). After considering the report of the person who held the inquiry, the respondents may make or confirm the order either without modification or subject to such modifications as they think fit (paragraph 7(1)). Any opinion on the environmental statement which has been expressed timeously must be taken into consideration by the respondents when deciding whether to proceed with the project (1984 Act, Schedule 1, paragraphs 7(1A), 13(1A)).


[5] In addition to the express provisions of paragraphs 5 and 11 of Schedule 1, section 139 of the 1984 Act permits the respondents to hold an inquiry in connection with any matters as to which they are authorised to act or which they are required to determine under the Act.


[6] Following an inquiry, where a scheme or order has been made or confirmed by the respondents or (as the case may be) approved by the Scottish Parliament under section 143A, it must be published in the Edinburgh Gazette. Any person aggrieved by the scheme or order who desires to question its validity, on the grounds that it is not within the powers of the 1984 Act or that any statutory requirement has not been complied with, may appeal within six weeks to the Court of Session. The court, if satisfied that the scheme or any provision contained in it is not within the powers of the Act or that the interests of the applicant have been substantially prejudiced by failure to comply with any statutory requirement, 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.

Aberdeen Western Peripheral Route: a brief factual background


[7] Having summarised the statutory framework for the construction of a road such as the AWPR and the procedure for objections and appeals, I turn now to set out briefly the historical background to the scheme and orders whose validity is under challenge. The concept of a peripheral route to the west of
Aberdeen (a "WPR") has been under consideration for many years, with some possible routes having been explored during the 1970s and 1980s. Serious consideration of the potential for a scheme began in the 1990s when Grampian Regional Council investigated improvements to reduce the high volumes of traffic in the centre of Aberdeen and on the A90 and associated radial roads. The need and support for a WPR was subsequently reflected in the Grampian Structure Plan 2007 and in the local transport strategies of both Aberdeen City Council and Aberdeenshire Council. In 2001, the North East of Scotland Transport Partnership (NESTRANS) was established to promote an integrated transport system for the north east of Scotland based on the results of an appraisal of transport proposals undertaken using the Scottish Transport Appraisal Guidance (STAG appraisal). The WPR was highlighted in the STAG appraisal as a key element in an integrated transportation strategy which became known as the Modern Transport System (MTS), published by NESTRANS in March 2003. The WPR component of the MTS was renamed the AWPR and in April 2003, the respondents announced that the proposed scheme would be promoted by the Scottish Executive as a trunk road within a funding partnership of the Scottish Executive, Aberdeen City Council, and Aberdeenshire Council.


[8] At various times during this protracted gestation period, preferred corridors had been identified for particular sections or legs of the WPR/AWPR. In
1994, a corridor crossing the River Dee near Murtle of Camphill had been identified as the preferred route for the western leg between the A90 at Charleston and the A96. Following public consultation in 2002, a similar corridor was identified in the MTS in 2003 as the preferred corridor for this leg. At the time of the announcement by the respondents in April 2003 that the AWPR would be promoted as a trunk road the preferred corridor did not include a link to Stonehaven, although it may be noted that a link between Peterculter and Stonehaven had figured as one of the options under consideration in 1994.


[9] The Murtle route which was the preferred route according to the MTS had certain sensitivities, notably its impact on the Camphill Special Needs Residential Communities. In December 2004, the then Minister for Transport instructed that work on this route should be reviewed and that a range of alternative options for a southern leg should be examined. Five options were to be considered. Four of these (the
Murtle Route, the Pitfodels Route, the Milltimber Brae Route and the Peterculter/Charleston Route) had their south-eastern terminus at Charleston. The fifth option was a route via Peterculter which had its south-eastern terminus at Stonehaven. This was presented as an alternative rather than as an addition to a southern leg terminating at Charleston. An extensive informal public consultation exercise took place during 2005, including public exhibitions at locations close to the possible route corridors and elsewhere. A consultation pack was made available to persons attending the exhibitions. An estimated 4,000 people attended the exhibitions. Approximately 7,600 representations were received, of which 44% were from outwith the AB postcode area.


[10] During this consultation process, the
Murtle Route remained the preferred option so far as the promoters (Transport Scotland) and the councils were concerned. In October 2005, following the consultation, advice was provided to the Minister of Transport by the respondents' Chief Road Engineer to the effect that the Murtle Route remained the best line. At this point, however, the Scottish Executive decided to commission a report by traffic consultants on the relative performance of three options, namely the Murtle Route, the Milltimber Brae Route, and what was described as a "hybrid" option which combined the Milltimber Brae Route and a link to Stonehaven. On 1 December 2005, the Minister for Transport announced publicly that the third of these options had been selected. The Minister's announcement stated inter alia that

"The chosen route combines the Milltimber Brae option with part of the Peterculter/Stonehaven option.

This addresses the problem of getting traffic round Aberdeen quickly, while including a fast link from Stonehaven, off the A90.

This will also relieve traffic numbers on the A90 between Stonehaven and Aberdeen."

An indicative route plan published along with the announcement showed a route corridor for the "fast link from Stonehaven" which generally followed the line of the existing B979 road.


[11] Work was then undertaken by the respondents to refine the preferred route within the corridor identified in the December 2005 announcement, as part of the Stage 2 (route selection) assessment. A further announcement by the Minister for Transport on
2 May 2006 specified the preferred specific alignment of the road within the corridor previously identified as the selected route. The preferred alignment of that part of the route running between Stonehaven and the junction with the proposed new road running westward from Charleston (which part of the route has been referred to throughout these proceedings as the "Fastlink") ran some distance to the east of the B979. By November 2006 it had been decided that the Fastlink would be a dual carriageway and not, as announced in December 2005, a "wide single carriageway" with alternating overtaking sections.


[12] A Stage 3 assessment (assessment of preferred route prior to publication of orders/environmental statement) was carried out. Because the project made provision for a new four-lane carriageway at least
10 kilometres long, it fell within the scope of section 20A of the 1984 Act and the respondents were obliged to publish an environmental statement. Draft schemes and orders and an environmental statement were initially published in December 2006. This statement was withdrawn and a revised environmental statement was published in September 2007. The draft schemes and orders were republished in September and October 2007. A large number of objections were lodged to the draft schemes and orders. The appellants in these appeals, who had objected to the 2006 drafts, objected again to the 2007 drafts and to the environmental statement. Transport Scotland responded to those objections.

The Public Local Inquiry

[13] In view of the large number of objections made and not withdrawn, and while the period for objecting was still open, the respondents announced on 12 October 2007 that a public local inquiry would be held to consider objections to the draft schemes and orders. The scope of the inquiry was subsequently extended to deal with objections taken to draft compulsory purchase orders made in connection with the schemes. One of the principal issues in the present appeals is the restricted remit of the inquiry. The "relevant notice" dated 17 April 2008 intimating the holding of the inquiry referred to the respondents "...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)". The notice stated:

"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 individual components of the Northern Leg (North Kingswells to Blackdog), Southern Leg (Charleston to North Kingswells) and Fastlink (Stonehaven to Cleanhill)."

The Minutes of Appointment of the three Reporters appointed to conduct the inquiry were in similar terms.


[14] A pre-inquiry meeting was held on
13 May 2008, in the course of which the scope of the inquiry was emphasised. The Reporters stated that they "[did] not intend to permit the presentation of evidence or questioning on the need for the scheme". They noted (Minute of Pre-Inquiry Meeting, paragraph 15) that

"Some objectors intend presenting evidence on alternative routes and alternative designs - concerning, for example, the location of junctions. They should provide sufficient information about their preferred alternative to allow it to be properly considered. However, the inquiry is into the scheme proposed by Transport Scotland, and it cannot turn itself into an inquiry into a series of assumed alternative proposals."

The Reporters specified a date for the lodging by objectors of details of alternative routes or junctions.


[15] The inquiry was held in
Aberdeen on various dates between 9 September and 10 December 2008. Closing submissions by all parties were received by 16 February 2009, and on 30 June 2009 the Reporters issued their report and recommendations ("the report") to the respondents. The report ran to 586 pages. The Reporters concluded (Conclusions, paragraph 11.2) that the proposal was generally acceptable, both technically and environmentally. They stated (paragraph 11.4):

"The scheme would have a wide range of environmental effects. While many of these would be mitigated, significant residual effects would remain. However we do not believe that these would be so severe as to render the proposal unacceptable. Furthermore, given the Ministers' policy decision about the AWPR, we have not been persuaded that any of the alternatives which have been proposed would have a clear overall advantage over the proposed scheme."

The Reporters highlighted (paragraph 11.8) a number of legal matters and obligations for the respondents and their advisers to consider, and noted that their conclusions about the general acceptability of the proposal were, necessarily, based on the assumption that none of these matters presented an obstacle to approving the scheme. The Reporters' recommendation (paragraph 11.11) was that the Orders be confirmed, subject to certain detailed modifications set out in their findings.

The respondents' decision

[16] The respondents issued their decision by way of a letter ("the decision letter") to Transport
Scotland dated 21 December 2009. They stated that they had decided to make the Schemes and Orders in terms of the drafts previously published, subject to a number of detailed modifications. The respondents noted that the Reporters had highlighted a number of legal issues upon which they should satisfy themselves before reaching a final decision. As most of these issues were raised again in the course of the present appeal and are discussed below, it suffices at this stage to note that the respondents considered each of them in turn in the decision letter and expressed the view that they had all been satisfactorily addressed and did not present an impediment to the scheme proceeding. The Schemes and Orders were laid before the Scottish Parliament and approved by way of affirmative resolution procedure on 3 March 2010.

Procedural history of these appeals

[17] One of the two appeals with which this opinion is concerned was originally brought by Road Sense, an unincorporated association established in about 2006 with aims which included challenging "the existing Netherley/Milltimber Brae route for an Aberdeen by-pass proposed by Transport Scotland", and by Mr William Walton, the chairman of Road Sense, as its representative and as an individual. It was recognised at an early stage that it would be desirable for these two appeals, and also a third appeal against the Scottish Ministers' decision which has since been abandoned, to be heard together. By interlocutor dated
19 October 2010, the Court remitted the three appeals to be heard by a Lord Ordinary in terms of Rule of Court 41.44. A diet for hearing the appeals was fixed for 22 February 2011 and the seven ensuing days.


[18] On
15 October 2010, Road Sense lodged a minute craving the court to make a protective expenses order in their favour to restrict their liability for expenses in the event of their being found liable to the respondents in the expenses of the appeal. That minute was heard by Lord Stewart on 16 and 17 December 2010. By interlocutor dated 20 January 2011, Lord Stewart allowed Keith Good, Treasurer of Road Sense, to be added to the instance as a further representative and, on the basis of agreement between counsel for Road Sense and for the respondents that the hearing would last no more than four days, made a protective expenses order in favour of Road Sense, and Mr Walton and Mr Good as its representatives, restricting their cumulo liability in the event of their being found liable to the respondents in expenses, to the sum of £40,000 or such lesser sum as may be found due on taxation. Lord Stewart also, on the respondents' motion, ordered that in the event of the respondents being found liable in the expenses of the appeal to these appellants or any of them, the respondents' liability would be restricted to the taxed expenses incurred in respect of the appellants' solicitor and one senior counsel acting without a junior.


[19] In their adjusted answers to the appeal by Road Sense and its representatives and by Mr Walton as an individual, the respondents took issue with Road Sense's title and interest to sue. In the event it became unnecessary for me to address this matter. Shortly before commencement of the hearing, a motion was made by Mr Walton as an individual for a protective expenses order in the same terms as that previously made in favour of Road Sense and its representatives. The motion was not opposed by the respondents and I granted it. The position regarding the liability for expenses of Mr Walton as an individual having been thus protected, the appeal in so far as presented at the instance of Road Sense and its representatives was abandoned, and it proceeded at the instance only of Mr Walton as an individual.


[20] On the eve of the hearing, the appellants Mr and Mrs Fraser were granted legal aid for their appeal.


[21] At the hearing I heard arguments by junior counsel for Mr Walton and for Mr and Mrs Fraser before hearing arguments for the respondents in response to the arguments in both appeals. Submissions by senior counsel followed the same order.

Summary of grounds of appeal

[22] It may be convenient if I summarise at this point the various grounds of appeal which were argued in the two appeals, before proceeding to deal with them in turn.


[23] On behalf of the appellant Mr Walton, the following arguments were presented:

(i) The restricted remit of the inquiry constituted a breach of the appellants' directly effective Community law right of public participation in terms of the EU Public Participation Directive.

(ii)            The restricted remit of the inquiry was in any event both unreasonable, in respect that it frustrated the purpose of the inquiry, and procedurally unfair. Proper and adequate reasons had not been given by the Reporters in their report, or by the respondents in the decision letter, for the conclusion that the adverse impacts of the scheme were not so severe as to render it unacceptable.

(iii)           So far as the economic justification for the scheme was concerned, the respondents acted irrationally, unreasonably and perversely by relying on out of date cost estimates.

(iv)          The respondents' decision failed to comply with EU Council Directive 92/43/EEC ("the Habitats Directive"), as implemented in the United Kingdom by the Conservation (Natural Habitats etc) Regulations 1994, in that they failed properly to assess whether the rigorous requirements for compliance with the Directive were satisfied with regard to the impact of the proposed scheme on the River Dee SAC (special area of conservation).

(v)            The respondents' decision failed to comply with the requirements of the Habitats Directive and its implementing regulations concerning European Protected Species, in that it failed to address the tests set out in the Directive and regulations and failed to give proper and intelligible reasons for concluding that the scheme was compliant in respect of protected species affected by it.

For each of these reasons it was contended that the schemes and orders were unlawful and should be quashed.


[24] On behalf of the appellants Mr and Mrs Fraser, the arguments presented on behalf of Mr Walton with regard to the restricted remit of the inquiry and failures to comply with the Habitats Directive and its implementing regulations were adopted. In addition, the following arguments were presented:

(i) The decision to make the scheme was incompatible with the appellants' rights under Article 6 of the European Convention on Human Rights, as the absence of state-funded legal representation prevented the appellants from participating effectively in the inquiry.

(ii)          In any event, the decision to make the scheme constituted a breach of the appellants' rights under Article 1 of the First Protocol to the Convention, as they were not afforded a reasonable opportunity of putting their case for the purpose of effectively challenging measures which interfered with the right to peaceful enjoyment of their possessions.

(iii)         The respondents acted in a procedurally unfair manner by failing to address in the decision letter a recommendation by the Reporters that certain investigations be carried out.

(iv)        The decision to make the scheme was incompatible with the appellants' rights under the EU Charter of Fundamental Rights.

For each of these reasons it was contended that the scheme and orders were unlawful and should be quashed.

Restricted remit: Community law right

Statutory framework


[25] The stated objective of the Aarhus Convention (article 1), to which the
United Kingdom and the European Union are parties, is that

"In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention."

Article 6 of the Convention is concerned with public participation in decisions on the specific activities listed in Annex 1 to the Convention, which include construction of a new road of four or more lanes of at least 10 km or more in a continuous length. Article 6(2) requires the public affected or likely to be affected by the environmental decision-making to be informed, early in the decision-making procedure, and in an adequate, timely and effective manner, of inter alia the proposal, the nature of possible decisions, and the envisaged procedure. Article 6(4) states that

"Each Party shall provide for early public participation, when all options are open and effective public participation can take place."


[26] At this point it is relevant to note that Article 7 of the Aarhus Convention requires Parties to make provision for public participation "during the preparation of plans and programmes relating to the environment, within a transparent and fair framework, having provided the necessary framework to the public." Within this framework, Article 6(4) is to be applied. There is an important structural issue to be grasped here. The reference in Article 7 to "plans and programmes" is to be contrasted with the references in Article 6 to "activities". As has been pointed out by the Aarhus Convention Compliance Committee (in a Report dated
4 April 2008 into compliance by Lithuania with its obligations under the Convention, at paragraph 71),

"The requirement for "early public participation when all options are open" should be seen first of all within a concept of tiered decision-making, whereby at each stage of decision-making certain options are discussed and selected with the participation of the public and each consecutive stage of decision-making addresses only the issues within the option already selected at the preceding stage."


[27] The European Directives concerning environmental assessment also employ the concept of tiered decision-making. The upper tier is governed by the Strategic Environmental Assessment Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment ("the SEA Directive"). Article 3 of this Directive requires an environmental assessment to be carried out for specified plans and programmes which are likely to have significant environmental effects. The assessment must be carried out during the preparation of the plan or programme and before its adoption or submission to the legislative process. Under Article 6(2), the public must be given an early and effective opportunity within appropriate time frames to express their opinion on the draft plan or programme and the accompanying environmental report. Opinions expressed pursuant to Article 6 must be taken into account during the preparation of the programme or plan and before its adoption or submission to legislative procedure.


[28] Member States were required to transpose the SEA Directive into national legislation by
21 July 2004, with the obligation to carry out an environmental assessment applying to plans and programmes of which the first formal preparatory act is subsequent to that date. So far as Scotland is concerned, the Directive was transposed by the Environmental Assessment (Scotland) Act 2005, which was brought into force with effect from 20 February 2006.


[29] Environmental assessment at project level, i.e. the decision-making tier concerning what are referred to in the Aarhus Convention as "activities", is governed not by the SEA Directive but by the EIA Directive. Following the amendments made to this Directive in
2003 in order to render it compliant with the Convention, Article 6 sets out at some length the measures which Member States must take in order to ensure that the public are engaged in the environmental decision-making process for a project whose effects require to be assessed. In particular, Article 6(4), inserted in 2003, provides as follows:

"The public concerned shall be given early and effective opportunities to participate in the environmental decision-making procedures referred to in Article 2(2) and shall, for that purpose, be entitled to express comments and opinions when all options are open to the competent authority or authorities before the decision on the request for development consent is taken."

In terms of Article 6(5), the detailed arrangements for informing the public are to be determined by the Member States.


[30] As already noted, the national legislation transposing the EIA Directive includes section 20A of the Roads (
Scotland) Act 1984, which in turn includes the amendments made to it by the 2006 Regulations with effect from 1 February 2007.


[31] In combination, the SEA Directive and the EIA Directive (as amended) require Member States to ensure that opportunities for effective public participation in the environmental decision-making process are provided both prior to the adoption of a plan or programme and also prior to approval of a specific project. For the purposes of the present appeals, however, it is important to note, as was accepted by the appellants, that any plan or programme (such as the AWPR) whose preparation began before 21 July 2004 did not require an "upper-tier" assessment in compliance with the SEA Directive, although voluntary strategic environmental assessments which made reference to the AWPR were in fact carried out for the Aberdeenshire Local Transport Strategy in May 2006 and for the respondents' National Transport Strategy in December 2006. It should also be noted that the respondents did not seek to argue that the decision-making procedure for the project (consisting of the proposed schemes and orders) pre-dated, and did not therefore require to comply with, the obligations imposed by section 20A as amended in order to implement the Public Participation Directive.

Argument for appellants

[32] It was contended on behalf of the appellants that the 2006 Regulations failed adequately to transpose the EIA Directive following its amendment by the Public Participation Directive. The respondents disputed this but, since it was conceded by them that Article 6(4) of the EIA Directive had direct effect, this argument became somewhat academic. In this opinion I proceed upon the basis that the appellants had a directly effective Community law right under Article 6(4) to early public participation, when all options were open and effective public participation could take place. The real point at issue was whether this right was breached in relation to the respondents' decision to construct the Fastlink to Stonehaven.


[33] It was acknowledged by the appellants that a plan or programme for the construction of a relief road to the west of
Aberdeen had been under discussion for many years and that there had been much formal and informal public consultation from time to time during that period. In particular, the MTS published in 2003 was clearly a "plan or programme" in the context of the Directives although, as already noted, because it pre-dated the entry into force of the SEA Directive it was not subject to a compulsory environmental assessment procedure. But none of this published strategy contained any reference to a link from the relief road to Stonehaven. Following adoption by the respondents of the WPR as a trunk road, and after the fresh round of public consultation which took place in 2005, the Murtle Route remained the preferred option. When the decision was taken in principle in December 2005 to proceed with an option which included the Fastlink - a decision which included a new policy element, namely the need to relieve congestion on the A90 between Stonehaven and Aberdeen - the public participation rights of the appellants and others required to be respected. They had not previously been given an opportunity to express a view on whether there should be a Fastlink or not. That failure could have been cured if the scope of the inquiry had included the need for the Fastlink. Having decided to hold a public inquiry, the respondents were bound to ensure that it was conducted in a manner compliant with the Aarhus Convention and the EIA Directive as amended. Given the requirement for public participation at a time when "all options are open", the inquiry ought, in order to be Aarhus-compliant, to have allowed for challenge to the need for the Fastlink. The respondents' decision, prior to the holding of the inquiry, to accept the need in principle for the route, reflected in their direction to the Reporters that they only wished 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", was incompatible with the appellants' rights under Article 6(4) of the EIA Directive. It was therefore contrary to section 57(2) of the Scotland Act 1998 and as such ultra vires.

Argument for respondents


[34] Counsel for the respondents emphasised in their submissions the distinction which fell to be drawn between the two tiers of decision-making. By the time of publication of the MTS, at the very latest, the objectives of the relief road had been identified: reference was made especially to pages 8-9 of the MTS. These objectives included, for example, reducing the impact of "peripherality" by improving external links, and ensuring integration of the north east into international transport systems. This was the point at which the objectives were settled and the question thereafter was how to deliver them by a project. The objectives set out in the MTS were influential upon a number of subsequent documents at plan/programme level, such as the structure plan, local plans and the National Transport Strategy, but from 2005 onwards the environmental decision-making process had moved to project level, i.e. selection of the appropriate route. This began with the 2005 consultation on five possible corridors, at which time the public were afforded an opportunity to express opinions on options which included a route terminating at Stonehaven, while all options were open. The appellants had taken advantage of that opportunity. When the respondents made their decision to proceed with a scheme which included the Fastlink, they were selecting an option which they considered best gave effect to the MTS objectives upon which there had been ample consultation. The Fastlink did not require to be mentioned expressly in the MTS in order to derive policy support from it.


[35] At the procedural level, it was submitted that it was clear from Article 6(5) of the EIA Directive that a public inquiry was not the only way in which public opinion might be taken into account. In the present case there had been further opportunities after publication of the draft scheme and orders to participate both by way of written submissions and by presenting evidence and/or representations at an inquiry. The appellants, among others, had made written submissions and had taken part in the inquiry. It was wrong to consider the remit of the inquiry in isolation: when all participation opportunities at various stages were taken into account, the procedure had been compliant with Community law rights. In any event, the scope of the inquiry was not as restricted as the appellants contended. The Reporters did consider alternative routes proposed by objectors, along with the response by Transport
Scotland to the proposed alternatives. It was open to the Reporters not to recommend the making of the Scheme, or to recommend to the respondents that they consider an alternative which the Reporters regarded as having a clear advantage.


[36] The respondents drew my attention to a communication submitted by Road Sense on
7 May 2009 to the Aarhus Convention Compliance Committee complaining of non-compliance by the United Kingdom in various ways with its Convention obligations in respect of the proposed construction of the AWPR. Some of those complaints are repeated in grounds of the present appeal. They include the following, as summarised in the introduction to draft Findings of the Compliance Committee issued on 12 January 2011:

- breach of Article 6 of the Convention by failing to seek public comment on the proposed route for the AWPR in an open way, failing to provide information on new objectives for the proposal and failing to invite the public to submit any comments, information, analyses or opinions on the proposed route;

- breach of Article 7 of the Convention by the introduction of a new objective for the regional strategic transport plan [i.e. relief of congestion on the A90] without any public participation;

- breach of articles 7 and 9 of the Convention by restricting the scope and circumstances of the public inquiry in a manner contrary to the principles of natural justice.


[37] In their draft Findings, the Committee rejected these complaints. The Committee considered that the public had had a number of opportunities over the years to make submissions that the AWPR not be built and to have those submissions taken into account. There was therefore no non-compliance with Article 6(4). The Committee expressed concern that the route finally selected for the Fastlink (including the incorporation of both a southern leg and the Fastlink), and its dual carriageway character, were not subject to the informal consultation process in 2005, and found that the decision to increase the Fastlink from a single to a dual carriageway was not a purely technical matter. However, it found that these aspects were ultimately subject to public participation through the statutory authorisation process following publication of the draft schemes and orders, and that in the light of this provision for public participation it could not conclude that the
United Kingdom was in non-compliance with Article 6. The Committee further concluded that there was no breach of Article 7 because the reference to the new objective was not in a document which was a plan subject to the requirements of that article. Although the Committee's findings and conclusions are not binding on this court, it was submitted that I should find them to be at least persuasive as they had been reached after thorough investigation.

Discussion

[38] It is appropriate to begin by being clear about what the Reporters could or could not have done within the remit that they were given by the respondents in their letter of appointment. I referred earlier to paragraph 15 of the Note of the Pre-Inquiry Meeting, in which the Reporters appeared to indicate that they would hear evidence from objectors regarding alternative routes, albeit with the caveat that the inquiry could not turn itself into an inquiry into a series of assumed alternative proposals (phraseology which appears to have been derived from Circular 17/1998: Planning and Compulsory Purchase Order Inquiries and Hearings: Procedures and Good Practice, paragraph 24). The environmental statement includes a chapter detailing alternative routes considered but proceeds upon the basis that the project will include a link to Stonehaven. The need for the Fastlink was challenged by objectors (including Road Sense and the present appellants) in oral evidence and written submissions to the inquiry. Prior to commencement of the inquiry, Transport
Scotland produced a draft report by their consultants on assessment of alternative proposals. However, the Reporters observed in the preamble to their Report that

"A large number of objectors questioned the need for the scheme in general, or for parts of it, notably the Fastlink. Given our remit, we have not included these in the report. We have however dealt, briefly, with objections which questioned aspects of the Fastlink proposal, notably its starting at Stonehaven, as opposed to somewhere further north, near Portlethen."

The Reporters' treatment of proposals for a Fastlink starting further north is indeed brief. At paragraphs 10.57 - 10.65 of their Report they make findings of fact in relation to alternatives, but state at paragraph 10.60 that

"A number of the alternative routes involve a 'fastlink' starting around Portlethen, rather than Stonehaven. This would not meet the Scottish Ministers' policy decision to include a new dual carriageway link to Stonehaven."

In so finding, they appear to have accepted an invitation by Transport Scotland (recorded at paragraph 2.147) to reject any alternative which did not connect with the A90 at Stonehaven.


[39] It was accepted by counsel for the respondents that the remit of the inquiry precluded consideration of any alternative which did not include a link to Stonehaven. It was submitted, however, that the exact route remained open for discussion: one possibility might have been to "move the Fastlink" by upgrading the A90 itself. I have no difficulty in rejecting this latter submission. It appears to me to be clear from what was said by the Reporters both before and after the inquiry that they did not regard it as within their remit to consider whether the case had been made for the construction of a road linking Stonehaven with a road running in a semi-circle to the west of Aberdeen and having its south-eastern terminus at a junction with the A90 at or around Charleston. I accept, however, that there was a range of recommendations which the Reporters might have made within the scope of their remit. They could have recommended that for environmental and/or technical reasons the whole scheme, or a particular part of it, should not be approved. They could have recommended that although the proposed scheme could be approved, the respondents should give consideration to an alternative which they regarded as demonstrating a clear advantage, bearing in mind that scrutiny of such alternative would probably have required a further inquiry. They could have recommended (as they did) approval of the scheme subject to detailed modifications. But they could not, in my opinion, consistently with their remit, have made a recommendation that for economic or other policy or strategic reasons, the scheme should not include a link to Stonehaven.


[40] That being so, the issue is whether, as the appellants submit, there has been a failure of due process in that the need for the Fastlink was never exposed to public comment and scrutiny in the manner required by the Public Participation Directive. I have concluded that the submissions of the respondents are to be preferred on this point. The difference between the positions of the parties, as it seems to me, is that the appellants regard a scheme which includes a link to Stonehaven as well as a semi-circular route around Aberdeen as something essentially different from the AWPR which was proposed and subsequently approved as an element of the MTS, whereas the respondents regard such a scheme as no more than the taking forward of the plan set out in the MTS to the next tier of decision-making, i.e. to project level. In the context of the SEA and EIA Directives, the latter appears to me to be the correct approach. It was, in my opinion, sufficient at the upper-tier decision-making level to secure public participation in the decision whether or not to construct a western peripheral route around Aberdeen, without also, at this decision-making level, securing public participation in a decision whether to have (a) a road terminating at or around Charleston, or (b) a road terminating at or around Stonehaven, or (c) a road with a junction somewhere along its length and termini at both Charleston and Stonehaven. In the European framework, those were matters to be addressed at project level in the course of public participation regarding the precise route of the road.


[41] Having made the strategic decision to construct the AWPR as a trunk road, the respondents conducted a public consultation on five possible route corridors in 2005. One of those routes was the Milltimber Brae option. Another included a terminus at Stonehaven. The public, including the appellants, had the opportunity to express their opinion on all of the alternatives at a time when all options were open. I am not persuaded that the appellants' description of this public consultation as "informal" somehow disqualifies it from consideration as a part of the opportunity for public participation in the tiered decision-making process. It seems clear that views expressed by the public during the 2005 consultation were indeed influential upon the Minister of Transport's eventual decision, although not perhaps in the way that the present appellants might have wished. That decision was of course to take forward a hybrid of two previous options. It was submitted on behalf of the appellants that this decision rendered irrelevant all of the public consultation and participation which had preceded it. I do not accept that submission. Public participation in the decision-making process had taken place with regard to the construction of a link to Stonehaven and I do not consider that that process was rendered irrelevant by the fact that the option selected in December 2005 also included a link to
Charleston.


[42] Nor did the process of public consultation end with the announcement of the preferred route corridor in December 2005 or, indeed, with the announcement in May 2006 of the preferred specific alignment of the road. A further process of public consultation took place when the draft scheme and orders and an environmental statement were published in December 2006 and when the drafts were re-published with a revised environmental statement in September 2007. Representations were made by Road Sense and by the present appellants challenging the need for the AWPR and, in particular, the need for a link to Stonehaven. These were considered and responded to by Transport
Scotland. All of this took place before the announcement in 2008 of the scope of the public inquiry. By the time the public inquiry was held, the respondents were entitled, in my opinion, consistently with the concept of tiered decision-making underlying the European Directives, to take the view that attention should focus on environmental and technical issues affecting the proposed project: that is, the option already selected at the preceding stage of the process. There is, in my opinion, nothing in the EIA Directive, as amended by the Public Participation Directive, which required the respondents at this stage to seek or to take account of any further public opinion on the question whether there was a need, in economic or strategic terms, for a link to Stonehaven. More particularly, there was, in my opinion, no obligation in terms of the Directive incumbent upon the respondents to hold a public inquiry into the need for such a link. At the inquiry which was held, the possibility remained open for the Reporters to make a recommendation that for environmental or technical reasons the scheme should not be approved. Having regard to the opportunities for public participation which had been provided prior to the holding of the inquiry, I reject the contention that the direction by the respondents to the Reporters that they wished only to be advised on those aspects constituted a breach of the appellants' Community law rights.


[43] I have formulated my opinion, as I must do, independently of the draft Findings of the Aarhus Convention Compliance Committee to which I have made reference, but it will be readily apparent that my reasoning is similar and I derive support from that. If there is any difference in emphasis it is that I am less inclined than the Committee appears to have been to place any weight on the decision to increase the Fastlink to dual carriageway. Given that the December 2005 decision envisaged a "wide single carriageway" with overtaking sections, I do not for my part regard this amendment as a matter of particular significance in the context of public participation, and I did not in any event understand it to be founded upon by the appellants in these proceedings. Otherwise I respectfully agree with the conclusion in the Committee's draft Findings.

Restricted remit: unreasonableness and procedural unfairness

Arguments for appellants


[44] It was next submitted on behalf of the appellants that, even if the restricted remit of the inquiry involved no breach of directly effective Community law rights to public participation in the decision-making process, the restriction frustrated the purpose of having a public inquiry and thereby rendered the procedure unfair. Particular emphasis was placed upon the following dictum of Lord Diplock in Bushell v Secretary of State for the Environment [1981] AC 75 at
94, a case which concerned the construction of two new stretches of motorway:

"The subject matter of [a local inquiry] is the objections to the proposed scheme that have been received by the minister from local authorities and from private persons in the vicinity of the proposed stretch of motorway whose interests may be adversely affected, and in consequence of which he is required... to hold the inquiry. The purpose of the inquiry is to provide the minister with as much information about those objections as will ensure that in reaching his decision he will have weighed the harm to local interests and private persons who may be adversely affected by the scheme against the public benefit which the scheme is likely to achieve and will not have failed to take into consideration any matters which he ought to have taken into consideration."

It was submitted that the restricted remit of the present inquiry disabled the Reporters from reaching informed conclusions and recommendations on the benefits and disbenefits of the scheme with the consequence that they could not conduct Lord Diplock's balancing exercise. The terms of the Reporters' conclusion indicate that they did in fact, within the confines of their remit, attempt to undertake a balancing exercise, both as between the benefits and disbenefits of the scheme proposed and as between the adverse effects of the scheme proposed and possible alternatives. These issues had not, however, been properly explored at the inquiry because they could not be, consistently with the remit.


[45] The decision to include the Fastlink was only characterised as a "policy" decision for the first time when the remit of the inquiry was announced in April 2008. It was wrongly so characterised and fell to be contrasted with the policy decision - in the proper sense - to construct an integrated trunk road network in
Scotland. It was a local decision which was essentially of a factual nature and which should not therefore have been treated as immune from scrutiny at an inquiry. The overriding consideration was fairness to objectors. Senior counsel for the appellant Mr Walton identified four areas which he submitted were legitimate areas for investigation at the inquiry but whose scrutiny had been treated as off-limits or had been so restricted as to render the procedure unfair: the economic justification for the road, including the benefit to cost ratio; the adverse impacts of the road; planning policy in relation to the green belt; and the impact of the EU Habitats Directive on selection of the route. It had been unreasonable and unfair to exclude those matters from investigation and from challenge by objectors. The Minister had not therefore been provided with a proper factual basis upon which to make a decision having regard to all relevant considerations. Senior counsel for the appellants Mr and Mrs Fraser emphasised the differences between an Aberdeen By-Pass on the one hand and the Fastlink on the other. The latter is a substantial project in its own right, which does not by-pass Aberdeen but has a different purpose, namely to relieve congestion on the A90. The decision by the respondents in December 2005 to include a wholly new element in the previously-consulted upon scheme in effect derailed the project from the point of view of its lawfulness. This new element could not lawfully be excluded from consultation on the basis that it was a policy decision.


[46] Within the context of restricted remit, the appellants had two specific "reasons" challenges. It was submitted, firstly, that the Reporters failed to give adequate reasons in the report for concluding (at paragraph 11.4) that the adverse impacts were not so severe as to render the scheme unacceptable and, secondly, that the respondents failed in their decision letter to address the balancing exercise or to give any or adequate reasons why they concluded that the adverse impacts identified by the Reporters were outweighed by the benefits of the scheme.

Arguments for respondents

[47] For the respondents it was submitted that the decision to construct the AWPR was a decision taken as a matter of strategic and national policy for which the respondents are accountable to the Scottish Parliament. No procedural irregularity or unfairness arises if such a policy is not subject to detailed scrutiny at a local inquiry. The respondents also founded on dicta of Lord Diplock in Bushell, especially a passage at page 98 to which I refer below. It was accepted that the propriety of the decision to exclude evidence will depend upon whether or not it results in unfairness to those taking part in the inquiry: R v Secretary of State for Transport, ex parte
Gwent County Council
[1987] QB 429, Woolf LJ at 435. But in considering questions of fairness it is necessary to examine the proceedings as a whole, and it is only if the procedure as a whole is unfair that the courts can intervene. The question of fairness must be addressed with regard to the respective appellants' case before the inquiry.


[48] As regards Road Sense and the appellant Mr Walton, their case before the inquiry had been that the selection of the "hybrid" option had not been justified by Transport
Scotland. They had contended that there were more appropriate alternative routes and referred to the 2005 corridor options. These alternatives had been assessed by Transport Scotland's consultants (Jacobs) in the report issued before commencement of the inquiry, and the Reporters broadly accepted its conclusions. As regards the appellants Mr and Mrs Fraser, their case before the inquiry had been concerned with the impact of the proximity of the road on their organic/biodynamic farming business. They did not propose an alternative route. Their objections were fully considered by the Reporters, who made findings in fact and recommendations that certain further investigations be carried out. The Reporters found that the character of the farm would be adversely affected but could not conclude that the organic status would be threatened. They concluded that the scheme would have a wide range of environmental effects but believed that none of the residual effects would be so severe as to render the scheme unacceptable. Given the Minister's policy about the need for the AWPR, the Reporters were not persuaded that any alternative which had been proposed would have a clear advantage. In any event, a wide range of evidence was submitted by parties to the inquiry in respect of what might be regarded as the need for the scheme, and the Reporters made findings in relation to these matters.


[49] As regards the economic justification for the road, it was not the purpose of the inquiry to consider whether the policy to construct the AWPR was justified in principle in economic or strategic terms. In any event, there was evidence before the inquiry as to costs and the Reporters considered the costs of alternative routes. The statement to the Scottish Parliament made clear that figures would be reviewed prior to commencement of the procurement process. The final costs will not be known until tenders have been returned and the contract completed. The question of whether a particular level of cost should be incurred is a matter for the Scottish Ministers.


[50] Senior counsel for the respondents submitted that the question for the inquiry was not whether as a matter of policy the road should be built but rather whether the route had been justified, having regard to the balance between harm to local interests and the benefit of taking that route. The policy for the Fastlink was not a separate policy but part of the overall trunk road strategy. It was not to be characterised simply as a relief road; its genesis lay in decisions taken at an earlier stage. However, it remained for the Reporters to assess the proposed scheme against the policy and in particular to measure harm caused by the line of the road against the benefits of that line. By the time of the inquiry the development plan included policy support for the AWPR. The objectors were not entitled to expect the policy issue of whether there should be a road to be canvassed at a public local inquiry, although it remained open to the Reporters to recommend that for environmental reasons the scheme should not be approved. More generally, Lord Diplock's dicta in Bushell should not be construed as a requirement that the factual background to every objection must be investigated. In the present case the Reporters took the correct approach of assessing the balance between local objections to and overall benefit from the proposed route.


[51] In response to the "reasons" challenges, it was submitted that the duty of the Reporters was not to provide reasons per se but rather to make findings in fact, reach conclusions and make recommendations to Ministers. Neither the Reporters nor the respondents were required to respond to every point raised by parties at the inquiry. Reference was made to the observations on adequacy of reasoning of Lord Bridge in Save Britain's Heritage v Number 1 Poultry Ltd [1991] 1 WLR 153 at pages 167-8, and of Lord Brown of Eaton-under-Heywood in South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953 at paragraph 36, where the test was said to be whether the interests of the applicant have been substantially prejudiced by a failure to provide an adequately reasoned decision. The Reporters were able to, and did, carry out a balancing exercise and make findings in relation to it in their report. Their conclusion that the significant residual environmental effects which would not be mitigated were not so severe as to render the proposal unacceptable was based upon findings of fact which they made in Chapters 5, 7, 9 and 10. So far as the decision letter is concerned, the respondents had already accepted the need for the scheme in principle. They accepted the Reporters' conclusions and recommendations, including the conclusion in paragraph 11.2 that the proposal was generally acceptable both technically and environmentally. They satisfied themselves that none of the issues identified by the Reporters in paragraph 11.8 presented an impediment to the scheme proceeding. Having regard to the reference in the decision letter to the Reporters' findings in fact, conclusions and recommendations, it was implicit that they accepted the conclusion in paragraph 11.4 and the findings in fact on which it was based.

Discussion

[52] In the course of the hearing there was much debate about the scope of the expression "policy". Senior counsel for the appellant Mr Walton referred to a definition of policy in Dworkin, Taking Rights Seriously (1979), page 22, as "that kind of standard that sets out a goal to be reached, generally an improvement in some economic, political, or social feature of the community", such as the standard that "automobile accidents are to be decreased". The point which senior counsel sought to make was that the expression "policy" should be reserved for high level, strategic decisions. That, it was argued, is the level of decision-making which might properly be excluded from scrutiny at a public local inquiry. However, as Wade & Forsyth observe (Administrative Law, 10th ed., page 813:

"...The line between general policy and its local application may not be easy to draw, and it is often the underlying policy which objectors wish to attack. In practice inspectors tend to be indulgent, allowing objectors to criticise policy and reporting such objections to the minister. Where this is done the inquiry is likely to be fairer to all concerned, since it is unrealistic to suppose that objectors have any effective voice to criticise policy in Parliament..."

The point is made at greater length in Bushell by Lord Diplock at page 98. Having contrasted a decision to construct a nationwide motorway network, which is clearly one of government policy in the widest sense of the term and not appropriate for scrutiny at individual inquiries, with the selection of the exact line to be followed by a motorway through a particular locality, which is an appropriate subject for full investigation at a local inquiry, Lord Diplock observed that between these two extremes there is a grey area. Similarly, Viscount Dilhorne at page 107 described the line between what should be open to scrutiny at an inquiry and what a minister could properly exclude from scrutiny as "indefinite". Lord Lane, however, at page 123, considered that the question of need in that case was a matter of policy or so akin to a matter of policy that it was not for the inspector to make any recommendation. In National Anti-Vivisection Society v First Secretary of State [2004] EWHC 2074 (Admin), Collins J cited Bushell at length before observing (para 28):

"As Lord Diplock in the passages I have cited says, it is not always possible to draw a clear distinction between policy and application. The policy is meaningless unless it is to be applied and the general form in which it can be implemented is, in my view, to be itself properly regarded as policy."


[53] More recently, however, it has been emphasised that the categorisation of a decision as a matter of government policy does not ipso facto preclude debate of it at a public local inquiry: see R (London Borough of Hillingdon) v Secretary of State for Transport [2010] EWHC 626 (Admin), Carnwath LJ at para 57-61, rejecting the supposition that "policy in the traditional planning sense" is a clear no-go area at any public inquiry.


[54] Applying that approach in the present case, it seems to me that if the respondents had wished to hold a public local inquiry with a remit to report on the desirability, in economic, policy and strategy terms, of the construction of an AWPR, including a Fastlink, along the route specified in May 2006, there was no legal impediment which would have prevented them from so doing. But that, as it appears to me, is not the question which I have to address. The question is rather whether it was unlawful, in terms of unfairness or irrationality, not to hold an inquiry whose remit included consideration of the policy justification for the construction of a road (including the Fastlink) along such a route. It further appears to me that the question has to be addressed under reference to the circumstances of this particular case, rather than under reference to what, in general terms, is or is not properly to be characterised as "policy".


[55] A recurrent complaint by the appellants in both appeals was that whereas there had been many years of public consultation and opportunity for public comment on the justification for a western peripheral road, there had been no such public consultation or comment on the justification for the Fastlink. It was accordingly incumbent upon the respondents, according to the appellants' argument, to include such an opportunity within the inquiry remit. I am not persuaded that this argument is well founded. I accept the respondents' submission that the lengthy background of consultation on the need for a western by-pass as an element of national trunk road strategy and of the MTS was not limited to a semicircular route with its southern terminus in the
Charleston area. In this regard the analysis under domestic law of the lawfulness of the respondents' decision does not appear to me to differ significantly from that under EU law discussed above. Having made the strategic decision to construct a western peripheral road, the respondents were entitled to proceed to the stage of route selection without carrying out further consultation, at a public inquiry, on the economic, policy or strategic justification for such a road. As Lord Diplock observed in Bushell at page 98, the exact line to be followed by the road is an appropriate subject for full investigation at a local inquiry and is one on which the Reporters' recommendation deserves to carry weight with the minister in reaching a final decision as to the line. That, however, seems to me to be a very different subject from the question whether the policy set out in the MTS should, as a matter of principle, be implemented by a road which has its terminus at Charleston or at Stonehaven or which has termini at both. In my opinion the respondents are not obliged, as a matter of procedural fairness, to expose that decision to scrutiny at a public local inquiry.


[56] In any event it is clear that the option of a route corridor terminating at Stonehaven was offered for public consultation and comment during the 2005 consultation process. The fact that, at that time, the
Murtle Route seemed likely to be the preferred option did not in any way prevent the public, including the present appellants, from providing their views on the alternatives, including the option which included a link to Stonehaven. If, therefore, contrary to the views which I have already expressed, there was a need for an "intermediate" step in the consultation process between the high-level policy decision to construct a western peripheral road and the selection of the exact line of the road, then that need was met by the public consultation on the various alternatives which ended with the minister's decision to select the hybrid option of the Milltimber Brae route with a link to Stonehaven. As with the EU law argument, there was in my opinion no issue regarding the construction of a link to Stonehaven which was altered so radically by the fact that the option selected in December 2005 also included a link to Charleston as to require the respondents, as a matter of law, to expose the policy justification to scrutiny at a public local inquiry.


[57] As I have already noted, senior counsel for the appellant Mr Walton referred to four particular matters which he contended were legitimate areas for investigation at the inquiry and whose consideration was excluded or so restricted as to render the procedure unfair. The first of these was the economic case for selecting the option chosen. Although the respondents had stated that they did not wish to be advised on the economic justification for the road, there was reference in the evidence of Transport
Scotland to the benefit to cost ratio ("BCR") of the preferred option. The Reporters made a finding in fact (paragraph 10.55) that the scheme had been calculated to have a certain BCR. It was accepted that the respondents' decision letter made no reference to economic justification, but in a statement to the Scottish Parliament on 13 January 2010, following the issuing of the decision letter, the Cabinet Secretary said

"The preferred route demonstrates a very high level of economic justification. It has a high benefit to cost ratio - the benefit being more than four times the cost of building the route."

This demonstrated that the BCR was regarded by Ministers as material and was relied upon them in reaching their decision. Yet the remit of the inquiry did not allow an opportunity for objectors to challenge the projected cost of the selected option.


[58] It does not appear to me, having regard to the terms of the report and to the material placed before the Reporters by Transport
Scotland, that BCR was relied upon at the inquiry as a reason to prefer the selected option to any alternative road line. I agree with the respondents' submission that the question whether the proposed scheme gives value for money is one for which they are accountable to the Scottish Parliament and which need not, as a matter of procedural fairness, be exposed to scrutiny at a public local inquiry. The Reporters' finding was merely that the scheme "had been calculated" to have a particular BCR: I do not read this as an indication that it influenced their recommendations in any way. The fact that BCR is not mentioned in the decision letter is an indication that it was not critical to the respondents' decision to proceed with this option as opposed to any alternative. Similarly, the statement by the Cabinet Secretary does not appear to me to carry any implication that BCR was a significant factor in preferring this route to any other: it merely asserts that the respondents considered that a route selected for other reasons was justified in economic terms.


[59] The second of the four particular matters referred to by senior counsel for the appellant Mr Walton was the absence of opportunity to test the adverse landscape and visual impacts of the scheme (acknowledged by the Reporters in their findings in fact at paragraphs 10.92 to 10.100) against a recognised criterion such as "the need for the scheme", because the inquiry remit excluded consideration of the need for the scheme. In my opinion this specific criticism adds nothing to the more general criticisms which I have already addressed. The Reporters concluded (paragraph 11.4) that the residual effects of the scheme which would remain despite mitigating measures being taken were not so severe as to render the proposal unacceptable, and that none of the alternatives proposed by objectors had a clear overall advantage over the proposed scheme. In my opinion a remit which permitted the Reporters to reach such a conclusion or, alternatively, a conclusion that the residual effects of the scheme did render the proposal unacceptable or that there was an alternative with a clear overall advantage, was sufficient to render the procedure fair. There was in my view no obligation on the respondents to allow further scrutiny of the question of "need for the scheme".


[60] The third of the four particular matters referred to was the absence of opportunity for challenge of the scheme on the ground that it failed to meet the test set out in national policy for development which was incompatible with a green belt. Again I take the view that it was sufficient as a matter of law for the inquiry remit to permit, as it did, scrutiny of the impact on the green belt of the proposed road line, without the scope extending to a more general issue of the need for construction of a road running within the green belt.


[61] The fourth of the matters referred to concerned the remit of the inquiry as regards the provisions of the Habitats Directive concerning European protected species, and is addressed in that context at paragraph 83 below.


[62] As regards the appellants' challenge to the adequacy of the reasoning of the Reporters, and also the respondents, regarding the significant residual environmental effects of the scheme, I again prefer the submissions advanced on behalf of the respondents. The findings in fact made by the Reporters in chapters 5, 7, 9 and 10 of the report are detailed and specific and leave the informed reader in no doubt as to their assessment of the severity or otherwise of any residual environmental effects which they have identified. Within the inquiry remit, the Reporters were in my opinion correct to formulate the question upon which they required to express a concluded view as being whether those effects were so severe as to render the proposal unacceptable. In answering that question in the negative, they exercised their judgment on the basis of the detailed findings in the preceding chapters. Any attempt by them to elaborate upon the conclusion in paragraph 11.4 would have been likely to amount to unnecessary repetition. Equally, the decision letter (especially at paragraphs 9, 25 and 28) appears to me to make clear that the respondents have accepted and proceeded upon the basis of the Reporters' conclusions, including that at paragraph 11.4 regarding adverse impacts. In my opinion, there is no prejudice caused by inadequacy of reasons.


[63] For all of the foregoing reasons, I reject the appellants' argument that the respondents' decision was rendered unlawful by virtue of the restricted remit of the inquiry.

Economic justification: unreasonableness

[64] Within the context of benefit to cost ratio, senior counsel for the appellant Mr Walton had a second and separate criticism. The figures for the cost of the scheme had been estimated in about 2005 as outturn costs for a project to be completed in 2012. By the time of the inquiry they were obviously out of date. It was accordingly irrational, unreasonable and perverse for the respondents to continue to rely upon them. I have already said that I do not consider that BCR was regarded by the Reporters or by the respondents as critical to the selection of the line of the road, which was the subject-matter of the inquiry. It follows that the cost estimate underlying the calculated BCR was similarly not a critical factor. In any event it should be noted that the statement by the Cabinet Secretary to which reference has been made also contained the following passage:

"Approximately £91 million has been spent so far, and the current estimated cost of the preferred route is between £295 and £395 million at outturn cost in 2012. That is based on the risks that are currently identified, but we will continue to monitor the position in light of prevailing tender prices for road contracts. The cost estimate will be reviewed and updated prior to the commencement of the procurement process. It would not be prudent to re-estimate project costs until the statutory procedures are complete, as the configuration of the road cannot be presumed until then. The final costs will not be known until tenders have been returned and the contract has been completed."

The Cabinet Secretary's statement about a high level of economic justification is to be read in that context. It seems to me that these are matters appropriate for parliamentary scrutiny and that it cannot be said that by adopting this approach to cost estimation the respondents rendered the decision to proceed with the scheme irrational, unreasonable or perverse.

Habitats Directive: River Dee SAC
Introduction - statutory background

[65] The purpose of the Habitats Directive, according to its preamble, is to require member states to take measures in order to preserve, protect and improve the quality of the environment. One of the means of achieving this purpose is the designation of special areas of conservation ("SACs") for which special measures are necessary in order to pursue the conservation objectives of the Directive. Article 6.2 and 6.3 of the Directive provide as follows:

"2. Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.

3. Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public."

Paragraph 4 is concerned with a situation where, despite a negative assessment of the implications for the site, a plan or project must nevertheless be carried out for "imperative reasons of overriding public interest".


[66] In the
United Kingdom, the Habitats Directive was transposed by the making of the Conservation (Natural Habitats etc) Regulations 1994 (SI 1994 No 2716). The Regulations are not a copy-out of the Directive, but regulation 48 requires an "appropriate assessment" to be made of the implications for a SAC before planning consent can be given for a plan or project which, whether alone or in combination with other plans or projects, is likely to have a significant effect on it. Nothing turns in the present appeals on any difference between the terms of the Directive and of the implementing Regulations and I shall refer, as did counsel at the hearing, mainly to the terms of the Directive.


[67] Some guidance as to the meaning of the expression "the integrity of the site" in Article 6.3 is available in European Commission guidelines on "Managing Natura 2000 Sites". This document states at paragraph 4.6.3 that

"It is clear from the context and from the purpose of the directive that the 'integrity of the site' relates to the site's conservation objectives...

As regards the connotation or meaning of 'integrity', this can be considered as a quality or condition of being whole or complete. In a dynamic ecological context, it can also be considered as having the sense of resilience and ability to evolve in ways that are favourable to conservation."

The document also quotes with approval the following definition of the expression used in UK planning policy guidance:

"the coherence of the site's ecological structure and function, across its whole area, or the habitats, complex of habitats and/or populations of species for which the site is or will be classified".


[68] Central to the practical implementation of the obligations of member states under Article 6 of the Directive is the carrying out, where necessary, of an appropriate assessment of the potential impact of a plan or project. In the case of Landelijke Vereniging tot Behoud van de Waddenzee & anor v Staatsecretarus van Landbouw, Natuurbeheer en Visserij [2004] ECR I-7405, the Court emphasised (paragraphs 44 and 45) that, having regard to the precautionary principle, any plan or project not directly connected with or necessary to the management of the site is to be subject to an appropriate assessment if it cannot be excluded that it will have a significant effect on that site, individually or in combination with other plans and projects. At paragraph 59, the Court stated that the test in Article 6.3 will be satisfied only if the competent authority, having carried out an appropriate assessment, is certain that a plan or project will not affect the integrity of the site, i.e. where "no reasonable scientific doubt remains" as to the absence of such effects. The appropriate assessment does not require to be carried out in any particular form (
Waddenzee at paragraph 52).

Factual circumstances

[69] The River Dee SAC contains three species which are of Community interest and whose presence required the designation of the area: Atlantic salmon, freshwater pearl mussels, and otters. Its conservation objectives include avoiding deterioration of the habitats of these species or significant disturbance to them. Construction of the southern leg of the AWPR would require a bridge to be built over the River Dee. In the respondents' preferred route this crossing would be located near the existing
Maryculter Bridge on the B979 road. A screening assessment identified potential for the construction of the road to have significant and adverse effects on the site and an appropriate assessment was therefore required. In advance of the public local inquiry, Transport Scotland's consultants (Jacobs) prepared a detailed "Report to Inform Appropriate Assessment", in which comments previously received from Scottish Natural Heritage ("SNH") were taken into account. This report concluded, with regard to each of the three species of interest, that with proposed mitigation measures in place, the construction and operation of the AWPR would not adversely affect the conservation objectives of the SAC for that species. A consultation response to the Jacobs report by SNH dated 8 August 2008 commended its thoroughness and expressed the view that if the proposals were undertaken strictly in accordance with certain specified conditions, they would not adversely affect the integrity of the River Dee SAC.


[70] At the time when the inquiry was held, the respondents had not yet carried out their appropriate assessment. The Reporters did however hear some evidence and submissions on the Report to Inform Appropriate Assessment to which I have referred. In the course of their findings in fact, they expressed the view (paragraph 10.189) that it was reasonable that the Report to Inform Appropriate Assessment did not formally include an assessment of the in-combination effect of the AWPR with two other possible developments, namely
Aberdeen Harbour and Blairs Estate. The Reporters found (paragraph 10.191) as follows:

"It appears to us to be beyond reasonable scientific doubt that, subject to appropriate mitigation measures being in place, there would be no significant adverse residual impacts on the conservation objectives for the qualifying species, or on the integrity of the site. On the basis of the evidence provided to us, we have found no reason to doubt that appropriate mitigation measures would be realistically capable of being put in place. It therefore seems likely that a positive assessment would be able to be made in respect of the effects on the SAC under Article 6(3)/Regulation 48."

In their conclusions (paragraph 11.8), the Reporters identified the requirements of the Habitats Directive with respect to the River Dee SAC as one of the legal matters and obligations which the Ministers and their advisers would wish to consider.


[71] The appropriate assessment by the respondents was published in December 2009 on the same day as the decision letter. It is a fairly brief document containing material that is familiar from the Jacobs Report. With regard to each of the species of interest, the assessment states that the construction phase of the bridge is likely to have significant effects but that the operation phase is not. In answer to the question "Can it be ascertained that the proposal/plan will not adversely affect the integrity of the River Dee SAC?" the assessment states:

"...The Consultants' Report to Inform the Appropriate Assessment details a range of key mitigation measures that will be implemented. The mitigation proposed ensures that the conservation objectives for each of the qualifying species can be maintained in the longer term, therefore an adverse effect on the integrity of the River Dee SAC can be avoided."

On that basis, the respondents' conclusion is expressed that the constructional and operational phases of the AWPR can be undertaken without any adverse impact upon the integrity of the River Dee SAC. It is noted that this conclusion is supported by SNH in their capacity as the respondents' statutory nature conservation advisers.


[72] In the decision letter itself, the matter is dealt with even more briefly at paragraphs 17 and 18 under a heading "The requirements of the EU Habitats Directive and the Conservation (Natural Habitats etc) Regulations 1994, with respect to the River Dee SAC and European protected species". The letter states:

"17. These requirements relate to species that are protected by the EU Habitats Directive (transposed through the Conservation (Natural Habitats etc Regulations 1994). The PLI heard a number of environmental concerns expressed by objectors, in particular the effect upon the River Dee (a European Special Area of Conservation given the protected species supported by the river.

18. An Appropriate Assessment has now been completed and endorsed by Scottish Natural Heritage (SNH) as the statutory nature conservation adviser to the Scottish Ministers. This demonstrates that the AWPR is fully compliant with the relevant European Directives as transposed into domestic legislation."

Arguments for appellants

[73] For the appellants it was submitted that the decision was flawed in two respects. Firstly, it was not apparent from the terms of the decision letter that the respondents had applied the rigorous standard required by the Directive before they could be satisfied that the proposal would not affect the integrity of the River Dee SAC. Neither in the decision letter itself nor in the appropriate assessment was there any analysis of evidence or any conclusion reached by reference to the exacting and specific standard of it being beyond reasonable scientific doubt that the proposal would have no such effect. Secondly, the decision letter was flawed because the Report to Inform the Appropriate Assessment had failed to assess the effect of the proposal in combination with the two proposals for
Aberdeen Harbour and Blairs Estate. A third argument concerning failure by the respondents to consider alternatives as part of the appropriate assessment was abandoned during the appeal hearing.

Arguments for respondents

[74] For the respondents it was submitted on the first point that there was no real and substantial doubt that the respondents had applied the correct European standard. The decision letter referred to the appropriate assessment which to a large extent reiterated the conclusions of the Report to Inform Appropriate Assessment, these conclusions having been endorsed by SNH. No specialty attached to the words "beyond reasonable scientific doubt", which were derived from the
Waddenzee case and not from the Directive itself. It was clear from the use in the appropriate assessment of words such as "ensures" and "can be avoided" that the necessary exacting standard had been applied. The appropriate assessment correctly focused on effect on the integrity of the site as opposed to the fact that there would be adverse effects during the construction phase. As regards the second point, the respondents were entitled to exercise judgment as to the projects with whose effect the AWPR proposal had to be considered in-combination. Reference was made to an answer given by the European Commission to a Member of the European Parliament (P-0917/05; 22 April 2005) in which it was said that the in-combination provision must be applied in a manner that is proportionate to the timing, planning stage and legality of the proposed plans and projects. In the present case a very large number of planning applications were likely to be submitted which were in geographic and chronological proximity to the AWPR proposal. Criteria were therefore established by Jacobs to attempt to identify proposals with the potential to cause significant adverse environmental effects. 109 were identified. Of these, it appeared that nine involved a risk of effects in-combination with the AWPR. Those nine were individually assessed in the Report (and found not to have in-combination effects). The two projects referred to by the appellants had been among the 109 but were not among the nine, having been assessed as presenting a medium/low risk of adverse effects. It had been reasonable not to consider them further. Moreover, any adverse impact of the AWPR was limited to the construction period and it was unlikely that the other two projects would yet be in progress by then.

Discussion

[75] I am clearly of the view that the respondents' arguments on these issues are to be preferred. As already noted, there is no particular form in which an appropriate assessment must be presented. The appropriate assessment in the present case is explicit in founding upon the Jacobs Report and upon the endorsement of this Report by SNH, the respondents' statutory nature conservation advisers. It expresses the view that the mitigation proposed "ensures" that an adverse effect on the River Dee SAC can be avoided. In my opinion it is apparent from the terms of the appropriate assessment that the respondents were aware of and had regard to the standard of protection required by the Directive. So far as the decision letter itself is concerned, the two paragraphs to which I have already referred contain somewhat confused references to the two separate issues (i.e. River Dee SAC and European protected species) which arise under the Habitats Directive, but it is clear, in my view, that the respondents' conclusion at paragraph 18 is based upon the appropriate assessment. It follows that I do not consider that there is any real or substantial doubt that the correct test has been applied. As regards the in-combination point, I again accept the submission on behalf of the respondents. In particular, I agree that there must be a degree of flexibility in assessing the projects with which a particular proposal should be regarded as having an in-combination effect. I can detect no unreasonableness in the approach taken by the respondents and their consultants in the present case.

Habitats Directive: European protected species

Introduction - statutory background


[76] A second and separate aspect of the Habitats Directive was an issue in these appeals. The preamble to the Directive states that provision should be made for management measures of certain species, if their conservation status so warrants, including the prohibition of certain means of capture or killing, whilst providing for the possibility of derogations on certain conditions. Article 12 obliges member states to take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting inter alia the deliberate disturbance of these species and the deterioration or destruction of breeding sites or resting places. However, Article 16 permits member states to derogate from Article 12, provided that there is no satisfactory alternative, and the derogation is not detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range. Even then, derogation is permitted only in five specified circumstances. For present purposes, the relevant permitted derogation, in Article 16.1(c), is "in the interests of public health and public safety, or for other imperative reasons of overriding public interest, including those of a social or economic nature and beneficial consequences of primary importance for the environment".


[77] The obligations imposed on member states were implemented in the
United Kingdom by the making of the 1994 Regulations to which I have already referred. Regulation 3(4) requires every "competent authority" in the exercise of any of their functions to have regard to the requirements of the Habitats Directive so far as they may be affected by the exercise of those functions. The respondents are a competent authority for the purposes of this provision. As regards Article 12, the method of implementation adopted was to create, in regulation 39, certain criminal offences, including the deliberate killing of an animal of a European protected species, the deliberate disturbance of such an animal, and the damaging or destruction of a breeding site or resting place of such an animal. Regulation 39 does not, however, apply to anything done under and in accordance with a licence granted by the "appropriate authority" for any of the purposes set out in regulation 44(2), one of which (sub-paragraph (e)) mirrors the terms of Article 16.1(c) above. The appropriate authority for the purposes of regulation 44(2)(e) is the agriculture Minister: i.e. the respondents. Before the respondents may grant a licence under regulation 44, they must be satisfied as to two further matters (regulation 44(3)):

(a) that there is no satisfactory alternative; and

(b) that the action authorised will not be detrimental to the maintenance of the population of the species concerned at a favourable conservation status in their natural range.


[78] It is necessary, as the respondents submitted, to bear in mind the distinction between the obligations of the "competent authority" under regulation 3(4) and those of the "appropriate authority" in regulation 44, even where, as here, the respondents are responsible for fulfilling both roles. The relationship between the obligations of the two "authorities" was considered by the Supreme Court in R (Morge) v Hampshire County Council [2011] 1 WLR 268. As Lord Brown of Eaton-under-Heywood makes clear at paragraphs 26-29, the "competent authority" has no obligation, when carrying out its duty under regulation 3(4) to have regard to the requirements of the Directive in so far as they may be affected by the exercise of its functions, to satisfy itself beyond any doubt that the development in question would not offend Article 12 or, alternatively, that a derogation from that article would be permitted and a licence granted. Where the competent authority concludes both that a development would be likely to offend Article 12 and that it was unlikely to be granted a licence, then it should not be permitted to proceed. Otherwise, however, the policing of the project should be carried out at and after the time when a licence is granted by the "appropriate authority". The Court in Morge also emphasised that the protection afforded in terms of the Directive is for the species at the location in question rather than for individuals of the species.

Factual circumstances


[79] The respondents identified that the AWPR proposal had the potential to impact upon certain species protected by the Directive, namely otters and five species of bat. In a written statement dated 12 August 2008 and provided to the inquiry, SNH referred to the terms of regulation 44(3)(b) and noted that the AWPR would necessitate the destruction of some otter couches [i.e. resting places] and the demolition of houses/buildings and trees some of which were known to support bat roosts. However, SNH advised that the effect of the proposal would not be detrimental to the maintenance of otter and bat species at favourable conservation status within their natural range, and that there would be no impact on favourable conservation status to either otter or bat species as a result of the development.


[80] The Reporters noted at paragraph 10.17 of the report the tests in Article 16 / Regulation 44 which required to be met with regard to European protected species. They observed that the question whether the first two tests of overriding public interest and of absence of a satisfactory alternative were satisfied was for Ministers to decide. They noted that in the light of SNH's advice it appeared that the third test would be met and found that

"On the face of it, and subject to Ministers' views on the first 2 tests in particular, it seems likely that licences would be able to be granted in respect of impacts on bats and otter under Article 16 / Regulation 44".

At paragraph 10.85, the Reporters made the following finding regarding bats:

"Jacobs carried out a detailed post-ES survey of bats, and concluded that most residual impacts would be of minor significance, at worst, in the short term, and generally of negligible significance in the long term. SNH advised that the proposal would not be detrimental to the maintenance of bat species at favourable conservation status within their natural range... The balance of the evidence on bats favours the views expressed by TS [i.e. Transport Scotland, who commissioned the Jacobs survey] and SNH."

At paragraph 10.86, the Reporters stated that they had no sound basis for disputing the view expressed in SNH's advice.


[81] On the day when the decision letter was published, the respondents also published a document described as "a formal review and assessment on the implications of the proposed AWPR upon European protected species (EPS) - otter and bat species". This eight-page document purports to address in turn the three tests: namely, the relevant test in regulation 44(2) (overriding public interest) and the two tests in regulation 44(3) (absence of satisfactory alternative and maintenance at a favourable conservation status). As regards the first test, the document states reasons why the respondents consider that the test is satisfied by the AWPR project, taken as a whole. It is said that

"No feasible alternatives to the construction and operation of the road exist. The project is of strategic importance for the further development of the economy of the north-east area of Scotland, and beyond."

In respect of the second test, the document states as follows:

"Alternatives to the chosen route have been assessed and consulted upon for a number of years prior to the chosen route being determined by Scottish Ministers at the end of 2005. There is no one, clear, viable alternative that has the support of those objecting to the route and certainly none that offers less impact upon environmental issues. Alternatives considered also pose similar and in some cases greater environmental impact upon EPS. Since none of the alternatives offer proven, improved benefits to the environment, it is appropriate for Scottish Ministers to determine that the preferred route is the only viable option, taking into account issues such as relocation, measures to avoid death or injury of EPS, principally bats and otters.

It is therefore believed that the full range of possible alternatives has been properly examined and that such alternatives demonstrate that the preferred route is the only satisfactory means of proceeding with the construction and operation of the road, under licence as required."

With regard to the third test (which, as set out in the document, begins somewhat curiously with the word "consequently"), the document notes the species present and sets out the measures proposed in order to mitigate disturbance and destruction of resting and breeding areas. Reference is made to the SNH advice which I have already mentioned. The document, which bears the name of one of the respondents' officials, concludes as follows:

"I am satisfied that the construction and operational with mitigation phases [sic] of the AWPR can be undertaken without any adverse impact upon the favourable conservation status of otters and bats as European Protected Species. This conclusion is supported by Scottish Natural Heritage, in their capacity as Scottish Ministers statutory nature conservation advisers."


[82] I have already set out the relevant paragraphs (17 and 18) of the decision letter at paragraph 72 above. It may be noted that the heading above these paragraphs refers to the requirements of the Directive and the 1994 Regulations with respect to, inter alia, European protected species. No explicit reference is made in either paragraph to the statutory regime specific to protected species, although paragraph 18 refers, without further explanation, to an "Appropriate Assessment" having been completed and endorsed by SNH.

Arguments for appellants


[83] I noted at paragraph 61 above that the fourth of the matters referred to by senior counsel for the appellant Mr Walton in connection with the remit of the inquiry concerned European protected species. It was submitted that it was apparent that, in accordance with the line which they had been invited to take by Transport
Scotland, the Reporters had not regarded the first two tests in regulation 44 as falling within the remit of the inquiry. (It was not disputed that the Reporters were entitled to make a finding that it appeared that the third test would be met.) Exclusion of scrutiny of the first two tests from the scope of the inquiry was unfair. It prevented the Reporters, for example, from expressing a view as to whether an option for the route which did not require demolition of a particular building containing bat roosts (the former International School near Milltimber) provided a satisfactory alternative for the purposes of regulation 44(3)(a) to an option which did require its demolition. By failing to afford an opportunity at the inquiry for the issue of existence of a satisfactory alternative route option to be considered at a detailed level, the respondents erred in law.


[84] It was further submitted that the respondents had failed properly and adequately to address the first two tests at all. The decision letter dealt only with appropriate assessment of impact on the River Dee SAC and (despite the heading) entirely failed to identify or discuss the regulation 44 tests for European protected species. The review and assessment document published on the same day as the decision letter was itself fundamentally flawed. A Guidance Document issued by the European Commission in 2007 on the strict protection of animal species of Community interest under the Habitats Directive indicated (III.1.2, para 24) that assessment of the "overriding" character of the public interest required a careful balancing of interests. No such balancing exercise had been carried out and there was accordingly no basis upon which the respondents were entitled to be satisfied that the first test had been met. With regard to absence of a satisfactory alternative, it was impossible to understand how the respondents could have concluded, on the basis of what was contained in this document, that the test was satisfied. The Commission Guidance emphasised that this was a rigorous test and that recourse to derogation must be a last resort (reference being made to the Opinion of the Advocate General in Ligue Royale Belge pour la Protection des Oiseaux ASBL & anor v Région Wallonne [1996] ECR I-6775 at paragraph 33). The respondents' document fell into the error of dealing with the matter at a macro- rather than a micro-level. It contained no analysis of alternatives, let alone any justification for the selected route being the last resort. Alternative routes considered in the past had not been considered with regulation
44 in mind. The references to the attitude of objectors and to alternatives offering proven benefits were wholly irrelevant. No consideration was given to an alternative route option which did not require demolition of the International School. For all of these reasons the document provided no basis for the conclusion in the decision letter that the AWPR was fully compliant with the Directive as transposed into domestic legislation.

Arguments for respondents


[85] On behalf of the respondents it was submitted in relation to the inquiry remit that it did permit consideration of alternatives at a level of detail which allowed comparison of impact on bats. However, the evidence for Transport
Scotland which was before the inquiry and which was accepted by the Reporters was that bats were present throughout the area affected by the proposed AWPR. In the Milltimber area, roosts were found at many locations and not merely at the International School, and the presence or otherwise of bat roosts was not in fact an issue in the choice between alternative route options at this location. This was the appropriate level for a balance of impacts and benefits to be considered by the inquiry. Overriding public interest in the construction of the AWPR, and absence of any satisfactory alternative to it, were not matters appropriate for the inquiry.


[86] It was further submitted that the three regulation 44 tests were set out and addressed in the assessment and review document published along with the decision letter. It had to be recalled that the only duty incumbent upon the respondents - in their capacity as the "competent authority" as regards the making of the scheme and orders - was to have regard to the requirements of the Directive. This was not an application for a licence, and the decision in Morge made clear that a high hurdle should not be set at this stage of the proceedings. A preliminary view that the tests were likely to be satisfied when a licence was applied for would be sufficient. So far as the first two tests were concerned, the document properly and adequately explained why the respondents were entitled to conclude at this stage that they would be found to be met when a licence was sought. As regards the third test, the respondents had taken advice from SNH and were entitled to proceed on the basis of that advice. The heading above paragraphs 17 and 18 of the decision letter made clear that both Habitats Directive issues were being addressed, and when the decision letter was read together with the review and assessment document which was published on the same day, there could be no real or substantial doubt as to the reasons for the respondents' conclusion regarding European protected species.

Discussion

[87] Addressing firstly the question of the inquiry remit, it seems to me that the scope of remit regarding European protected species which is appropriate for a public local inquiry will vary from case to case. Where, for example, a sharp choice arises between, on the one hand, a proposal which requires disturbance of a protected species and/or destruction of breeding sites and, on the other, an alternative which involves no such disturbance and destruction, then it may well be appropriate for an inquiry to hear evidence regarding both options with a view to making a recommendation as to whether or not a satisfactory alternative exists which would, in terms of regulation 44, preclude the granting of a licence. Some of the purposes set out in the various sub-paragraphs of regulation 44(2) may similarly lend themselves to such scrutiny (although I find it more difficult to envisage circumstances in which "imperative reasons of overriding public interest" could appropriately be scrutinised at a local inquiry). It does not, in my opinion, follow from the statement in the Commission Guidance that careful balancing of interests is needed that the appropriate authority must necessarily hear evidence and representations at an inquiry before carrying out such a balancing exercise. In the present case, however, there was no question of selection between a route for the AWPR which necessitated the disturbance of protected species and destruction of breeding sites and a route which did not. In particular, according to the evidence accepted by the Reporters, the choice between route options in the Milltimber area was not going to make a difference between carrying out activities (such as construction work) which required a licence and carrying out activities which required no licence. That being so, I am of the opinion that the respondents were correct to address the first two tests at the level of policy requirement for the AWPR. For the reasons given earlier in this opinion, I do not consider that the respondents were under an obligation to subject to scrutiny at a public local inquiry their conclusions that construction of the AWPR was a matter of overriding public interest and that there was no satisfactory alternative to it.


[88] I turn then to consider the appellants' submission that, in any event, the respondents had failed properly to address the first two regulation 44 tests. In this context, I accept the respondents' analysis of the 1994 Regulations which draws a distinction between the duty of a "competent authority" to have regard to the requirements of the Directive and the task which must be performed by an "appropriate authority" when deciding whether or not to grant a licence. It is clear from the judgment of Lord Brown of Eaton-under-Heywood in Morge, to which I have referred, that there is no need for certainty on the part of the competent authority that a licence will in due course be granted by the appropriate authority. Nevertheless where, as in this case, the respondents are both competent authority and appropriate authority, it seems to me that there is a risk that placing emphasis on the distinction could introduce an element of unreality into the argument. Senior counsel for the respondents submitted that the respondents' task at the earlier stage is to look into the future and take a view as to the likely outcome of an application for a licence. That may be so, but with regard to satisfaction of the first two tests in the present case, i.e. the overriding public interest in and absence of satisfactory alternative to the AWPR proposal, it does not seem to me that much guesswork ought to be needed on the part of the respondents in their role as competent authority with regard to their own likely position in due course as appropriate authority. As regards the third test, the respondents had, at the material time, received favourable advice from SNH. I do not therefore regard the argument based upon scope of duty under regulation 3(4) as carrying much weight in the circumstances of this case.


[89] I have considerable sympathy with the appellants' criticisms of the review and assessment document and of the relevant paragraphs of the decision letter itself. For the reasons which I have already given, I do not consider that the respondents erred in law in addressing the first two tests by reference to the need for, and absence of alternatives to, the AWPR at policy level. The review and assessment document bears to have been prepared on the basis of the Commission Guidance, but so far as the first test is concerned there is little evidence of the "careful balancing of interests" which the Guidance advocates. One might have expected to see an explicit comparison of the perceived economic, social, environmental or other benefits of an AWPR with any detrimental effects upon the protected species. It would, however, be wrong for me to conclude that no such comparison was carried out. At the time when this document was prepared and published, the respondents had received favourable advice from SNH regarding the effect of the proposals on otters and bats. They may also be assumed to have been aware of the Reporters' acceptance of evidence that the impact on bats would be of minor significance in the short term and of negligible significance in the long term. In these circumstances, and even in the absence of an explicit balancing exercise, a reader of the review and assessment document cannot be left in any real or substantial doubt as to why construction of the AWPR was regarded by the respondents as being carried out for imperative reasons of overriding public interest.


[90] Neither is the respondents' treatment of the second test exempt from criticism. The references to the opinions of objectors and to the absence of alternatives offering "proven, improved benefits" to the environment seem to have little to do with the statutory test which is specific to the granting of a licence to do things otherwise prohibited by regulation 39. It is, however, stated explicitly that alternatives considered pose similar and in some cases greater environmental impact upon protected species. In the circumstances of this case, and in particular the evidence before the inquiry as to the presence of bats across a wide area as opposed to a particular avoidable location, I am of the view that the respondents reasons for concluding that the second test is satisfied have been adequately stated in the document.


[91] It is of some concern that what purports to be the conclusion of the review and assessment document does no more than reiterate the third of the regulation 44 tests. Again, one might have expected to find a form of conclusion along the lines of stating expressly that the respondents have had regard to the Habitats Directive and have reached the view that it is likely that all three tests in regulation 44 will be met when a licence is sought. Be that as it may, it is in my opinion sufficiently clear from perusal of the document as a whole that this was indeed the view reached by the respondents.


[92] Turning to the decision letter itself, it is surprising, to say the least, that the only express mention of European protected species is in the heading preceding paragraphs 17 and 18. On one reading, paragraph 17 might be thought to betray a confusion between the two separate regimes for species which cause an area to be designated as a SAC on the one hand and species which are themselves designated as protected species on the other. What seems to me to be clear, however, is that these paragraphs are intended to refer to the Habitats Directive not only with regard to its application to the SAC but also with regard to its application to European protected species. When regard is had to the review and assessment document published contemporaneously with the decision letter, I consider that there is an adequately-reasoned basis for the respondents' conclusion that so far as European protected species are concerned the AWPR is fully compliant with the requirements of the Directive and its national transposing legislation.

Fraser appeal: breach of Convention rights
Introduction


[93] The issues addressed in the remaining chapters of this opinion arose only in the appeal by Mr and Mrs Fraser. So far as Convention rights are concerned, it was contended on their behalf that the respondents' decision to make the scheme and orders was unlawful on two grounds:

The respondents contended that there had been no breach of any Convention rights of these appellants.


[94] Before setting out the arguments for the parties on these issues, it is necessary to explain the factual background to these appellants' objection, which is primarily to the Fastlink element of the proposed AWPR. The appellants live, and carry on the business of organic/biodynamic farming, at Burnorrachie Farm,
Bridge of Muchalls, a few miles north of Stonehaven. The farm extends to 45 acres and is located some distance from any existing major road. The proposed route for the Fastlink does not pass through any part of the appellants' property, but at its closest point it would pass 51.4 metres to the west of a corner of one of the appellants' fields. The road would run partly in a cutting and partly on an embankment as it passes the appellants' farm.


[95] The appellants submitted a letter in about February 2007 objecting to the draft order. Some of their objections were of a general nature to the construction of a road which would encourage greater use of cars and cause damage to the environment. In addition, the letter contained objections specific to the appellants' property:

"We have an organic/biodynamic farm here and produce field vegetables and organic beef to the highest international standard which is Demeter. We only have 45 acres and the proposed road will only be 55 yds from our nearest field. As we have always set and maintained very high standards regarding our produce we will not be prepared to use this field due to car pollution which will build up over the years. (It took us three years of searching to find this unpolluted, beautiful area.) I'd like to draw your attention to a recent report in the Lancet linking the proximity of major roads to lung problems and this was up to 500m away! This road will have a major effect on the future viability of our farm. We have future plans for our farm, as we are both interested in natural healing through the landscape. We had plans to turn the farm into a healing retreat but if this road goes ahead that will not be possible."

Letters responding to the appellants' objections were sent by Transport Scotland in August 2007 and December 2007. In the 2007 Environmental Statement, the appellants' farm was assessed as being of high agricultural sensitivity. The potential impact of the Scheme on the farm was assessed as "slight/moderate". The statement concluded (paragraph 37.4.9):

"The scheme would have a Moderate adverse impact on air quality at Burnorrachie, however it should be noted that traffic-related pollutant levels would remain very low with, or without, the proposed scheme in place. The presence of the road would not jeopardise the organic or biodynamic certification status of the unit.


[96] At the inquiry, the first appellant lodged a precognition on his own behalf and a precognition on behalf of an association called "Sink the Link". As with the objections previously submitted, the precognitions contained both arguments at a policy level and objections addressing the perceived impact on the appellants' farm. These included the following:

"I have been an organic/biodynamic producer for 25 years, 20 of those at Burnorrachie so I have gained some considerable expertise in organic production.

My wife and I have put in a great deal of effort (to say the least) in enhancing the environment of the area. We have planted one and a half miles of hedges, many trees and have along with our neighbours, Elrick, made a big difference to the local ecology and climate, increasing the local bird life dramatically.

We have 90 local customers and sell wholesale vegetables, beef and oats. This is all under threat due to the proposed Fastlink, which will have a considerable impact on our farm, despite what the environmental study says. It is true that we would not lose our Biodynamic Status as proximity of roads is not part of the standards. However, we bought Burnorrachie precisely because of its isolation from major roads as I've set a very high standard of biodynamic production. It's not easy to contemplate lowering this standard as anyone who sets high standards will know, to have to lower them is a major compromise.

The environmental report suggests that pollution from the road will not be a problem for us but this is definitely not the case as there would be an accumulative effect of road pollution from tyres and exhausts. Our largest field is less than 100m from the proposed Link and there is also recent scientific evidence that roadside pollution affects plants up to 100m from major roads. (Abstract No.1 encl.)"

A rebuttal precognition was lodged by the individual who had been responsible for the material contained in the relevant chapter of the environmental statement. He stated:

"It is accepted that the character of the farm would be affected by the proposed Scheme and that this is an important component of the individuality of the farm and its biodynamic principles. However, in my professional opinion, the continued operation of the unit in accordance with biodynamic/organic standards could be maintained and the sale of vegetables, beef and oats would not be under threat from the proposed Scheme."

The first appellant also gave oral evidence to the inquiry. In this he mentioned for the first time concerns regarding the build up in soil at the appellants' farm of heavy metals produced by vehicles using the road. This point was repeated in a closing submission by the appellants, and other points previously made were reiterated.


[97] In their report (paragraph 9.106), the Reporters stated:

"There is no doubt that the character of the farm would be adversely affected, and that this would be likely to affect public perceptions of the farm."

The Reporters also made findings and a recommendation regarding build up of heavy metals in soil, to which I return below. It may be presumed that the Reporters did not consider any residual impact on the appellants' farm to be so severe as to render the proposal unacceptable.

Arguments for appellants

[98] For the appellants it was argued that the determination of a planning application was a "determination" for the purposes of Article 6. In the present case there was a determination of the appellants' civil rights. The cases of Ortenberg v Austria (1994) 19 EHRR 524, Richter v Austria 18 December 2008 (ECtHR) and R (Friends Provident Life Office) v Secretary of State for the Environment, Transport and the Regions [2002] 1 WLR 1450 (Administrative Court) demonstrated that property rights are civil rights. By analogy, the appellants' A1P1 and Article 8 rights, both of which were engaged with regard to the matters before the inquiry, were civil rights. In Principal Reporter v K [2011] SLT 271, the Supreme Court confirmed that all the Convention rights are "civil rights" in
UK law. It was a breach of the appellants' Article 6 rights that state-funded legal representation was not available to them in connection with the determination of these civil rights. The absence of a statutory scheme in Scotland under which state-funded legal representation could be made available in appropriate circumstances to participants in a planning inquiry was a systemic failure, and the court need not and should not restrict itself to addressing the circumstances of the present case (cf R (Wright) v Secretary of State for Health [2009] 1 AC 739, Baroness Hale at paragraphs 22 and 28). The relevant principles were as stated by the European Court of Human Rights in P, C and S v United Kingdom (2002) 35 EHRR 1075 at paragraphs 88-91 (which I set out below). This decision was applied in Scotland in SK v Paterson 2010 SC 186. In that case the court made a finding in general terms (at paragraph 60) that the absence of any statutory provision entitling state-funded legal representation to be made available to relevant persons whose civil rights would be determined at a children's hearing, but who would be unable, without such representation, to participate effectively during it, amounted to an inbuilt systematic flaw in the legal aid scheme as it applied to the children's hearing system. It could not be said as a matter of general principle that state-funded legal representation would either always or never be required within the context of planning inquiries; the need or otherwise for such representation would be fact specific. But the current legislation, contained in the Legal Aid (Scotland) Act excluded it in all cases. (The position may be different in England and Wales.) It was not necessary for the appellants to show that the availability of state-funded legal representation would have resulted in a different outcome, or even that it would necessarily have been granted if it had been available (Steel and Morris v United Kingdom (2005) 41 EHRR 22).


[99] The circumstances of the present case which rendered state-funded legal representation necessary in order to secure the appellants' effective participation in the inquiry included the complex nature of the inquiry and the volume of work required (by way of illustration, the closing submission for Transport Scotland was 419 pages long); the appellants' lack of experience or qualifications which would enable them to present their own case; the technical nature of some of their objections; the restricted time available to them to attend the inquiry; the importance of the consequences to them; and their belief that their business was at risk. In contrast to R (Challenger) v Secretary of State for the Environment, Transport and the Regions [2001] Env LR 209, there was no other party upon whom the appellants could rely to adduce evidence which supported their case. The right of appeal to this court did not cure their exclusion from effective participation at the inquiry because the court does not examine the merits of the scheme (cf S v Miller 2001 SC 977).


[100] It was further argued that the restricted remit of the inquiry constituted a breach of the appellants' substantive Convention rights under A1P1. The first sentence of A1P1 provides that

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions."

The Scheme interfered with the appellants' peaceful enjoyment of their farm in respect that its character was adversely affected (as the Reporters found). A combination of loss of amenity and diminution in value constitutes an interference with peaceful possession. Reference was made to Rayner v United Kingdom (1986) 47 DR 5; S v France (1990) 65 DR 205 and Antonetto v Italy (2003) 36 EHRR 120. The respondents were bound to afford the appellants a reasonable opportunity of putting their case to the inquiry for the purpose of effectively challenging the measures interfering with their A1P1 rights: Jokela v Finland (2003) 37 EHRR 581 at paragraph 45. That had not happened here. The appellants had had no opportunity to argue that the Fastlink, which would interfere with their right to peaceful enjoyment of their possessions, should not be built at all.

Arguments for respondents


[101] For the respondents it was accepted that Convention rights might be civil rights and that civil rights might in principle be determined at a public local inquiry, but it was submitted that there had been no such determination in this case. It followed that Article 6 was not engaged. The Ortenberg, Richter and Friends Provident cases all concerned planning decisions which had an adverse effect on the value of the respective applicants' property. In the present case it had not been within the scope of the inquiry to assess whether construction of the road would adversely affect the value of the appellants' farm, and there was therefore no factual basis for any assertion that it would. Nor was the issue of availability of compensation for loss of value before the inquiry. The Convention does not guarantee legal aid in civil cases. Only in cases where legal aid was for whatever reason indispensable for effective access to court would its non-availability constitute a breach of Article 6 (Airey v Ireland (1979) 2 EHRR 305, paragraph 26; P, C and S v United Kingdom, above). Legal aid is one way, but not the only way, in which a state might secure effective participation in proceedings in which rights are determined. It has never been suggested by the European Court of Human Rights that Article 6 requires legal aid to be made available to participants in a planning inquiry, and in the present case there was no such need. The proceedings were of an inquisitorial nature without technical rules of evidence in order to facilitate public participation; objectors had the opportunity to (and did) band together to present their case; and in any event these appellants did not require to address the whole of the case for Transport Scotland: they were concerned only with whatever effect the proposed scheme might have on them and their farm.


[102] In response to the appellants' contention that there was a systemic failure, senior counsel for the respondents invited me not to address this as a matter of generality. The inquiry being at an end, the court was in a position similar to that of the court in
Strasbourg in being able to decide whether a breach of Convention rights further submissions. Firstly, in fact occurred in the present case. Alternatively, the court could make a declaration of incompatibility but nevertheless find that the test of "indispensability" had not been met in the circumstances of the case.


[103] On the specific issue of availability of legal aid, the respondents made two it was the respondents' understanding that the appellants could have applied for advice and assistance under the Legal Aid (
Scotland) Act 1986, which might have enabled them to obtain counsel's opinion before the inquiry, though not representation at the inquiry or any expert opinion of a technical nature. Secondly, reference was made to section 4(2)(c) of the 1986 Act which provides for payment out of the Scottish Legal Aid Fund of "such other payments as the [respondents] may determine". It was suggested that one "cannot rule out" the use of this provision to fund legal representation at a public local inquiry. It was conceded that any systemic failure at inquiry level was not cured by the statutory right of appeal to this court.


[104] As regards the alleged breach of the appellants' substantive A1P1 rights, there had been no such breach. In each of the cases relied upon by the appellants, there had been evidence of a fall in value of land; there was, however, no evidence of diminution in value of the appellants' farm. Moreover, the availability or otherwise of compensation for diminution in value was a significant factor for A1P1 (see e.g. Sporrong and Lonroth v
Sweden (1982) 5 EHRR 35); availability of compensation did not fall within the scope of the inquiry proceedings but compensation could in principle be claimed under the Land Compensation (Scotland) Act 1973. S v France illustrates that A1P1 does not guarantee the peaceful enjoyment of possessions in a pleasant environment. In the end, the appellants were driven to found their case on loss of amenity and that was not enough of itself to constitute breach of A1P1. Article 8 added nothing to the A1P1 argument because the appellants' freedom to carry on business as organic farmers was not determined by confirmation of the scheme or orders.

Discussion

[105] I begin by addressing the question whether I should approach this issue by considering (a) whether there is a systemic flaw in the scheme set up by the respondents for the determination of civil rights within the context of a public local inquiry, or (b) whether the Convention rights of the appellants have been breached in the circumstances of the present case. I am of the opinion that it is not necessary for me to make any finding in these appeals that there has been a breach of the appellants' Article 6 rights because of a systemic flaw in Scottish public local inquiry procedure due to non-availability of state-funded legal representation. In SK v Paterson, the Court noted (paragraph 56) that there had been little dispute that the absence of a statutory provision allowing state-funded legal representation to be made available to a "relevant person" appearing before a children's hearing on the date in question amounted to an inbuilt systematic flaw in the legal aid scheme as it applied to the children's hearing system on that date. It appears to me that the passage at paragraph 60 which was founded upon by the appellants simply acknowledges the court's agreement with that proposition. That, however, was not the end of the matter. The court held (paragraph 62) that

"...the appellant's rights under Articles 6, 8 and 14 will only have been infringed during the hearing on 6 February 2008 if the appellant was, during that hearing, unable to participate effectively during the proceedings".

That was treated as a matter of fact. I note also that the court declined to answer a second question, namely whether the absence of any provision for state-funded legal representation before "any children's hearing" constituted a breach of the appellant's Convention rights.


[106] On this authority, I do not consider, notwithstanding the dicta from R (Wright) v Secretary of State for Health) that a sharp distinction should be drawn between the role of the European Court of Human Rights as being to look back at the circumstances of the case before it and the role of a national court as being to consider whether a legislative scheme is systemically flawed. Lady Hale's remarks in Wright fall to be read in the context of an order made by the Court of Appeal reading down a legislative provision under section 3 of the Human Rights Act
1998 in order to render it Convention-compliant. For my part I do not read them as expressing a view that in any case in which Article 6 is engaged a national court must examine the whole legislative scheme for possible breaches of Convention rights rather than examining its application to the facts of the case before it. In my opinion, I am entitled in the present case to seek guidance from the Strasbourg case law, as indeed did the court in SK v Paterson at paragraph 65, where the following dictum is quoted from Marangos v Cyprus, 4 December 2008 (ECtHR), paragraph 35:

"The question whether the provision of legal aid is necessary for a fair hearing must be determined on the basis of the particular facts and circumstances of each case and will depend, inter alia, upon the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant's capacity to represent him or herself effectively."


[107] I also derive guidance from the following passage from P, C and S v United Kingdom (above) at paragraphs 89-90, to which both parties referred during the appeal hearing:

"89. ...Failure to provide an applicant with the assistance of a lawyer may breach [Article 6(1)], where such assistance is indispensable for effective access to court, either because legal representation is rendered compulsory as is the case in certain Contracting States for various types of litigation, or by reason of the complexity of the procedure or the type of case. Factors identified as relevant in [Airey v Ireland] in determining whether the applicant would be able to present her case properly and satisfactorily without the assistance of a lawyer included the complexity of the procedure, the necessity to address complicated points of law or to establish facts, involving expert evidence and the examination of witnesses, and the fact that the subject-matter of the marital dispute entailed an emotional involvement that was scarcely compatible with the degree of objectivity required by advocacy in court. In such circumstances, the Court found it unrealistic to suppose that the applicant could effectively conduct her own case, despite the assistance afforded by the judge to parties acting in person.

90.  It may be noted that the right of access to a court is not absolute and may be subject to legitimate restrictions. Where an individual's access is limited either by operation of law or in fact, the restriction will not be incompatible with Article 6 where the limitation did not impair the very essence of the right and where it pursued a legitimate aim, and there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. Thus, though the pursuit of proceedings as a litigant in person may on occasion not be an easy matter, the limited public funds available for civil actions renders a procedure of selection a necessary feature of the system of administration of justice, and the manner in which it functions in particular cases may be shown not to have been arbitrary or disproportionate, or to have impinged on the essence of the right of access to a court. It may be the case that other factors concerning the administration of justice (such as the necessity for expedition or the rights of others) also play a limiting role as regards the provision of assistance in a particular case, although such restriction would also have to satisfy the tests set out above."

On the strength of this guidance, I propose to consider the question of breach of the appellants' Article 6 rights against the background of the circumstances of the present case. I do not find it necessary to address the respondents' suggestion that section 4(2)(c) of the Legal Aid (Scotland) Act 1986 might afford a basis for provision of state-funded legal representation at a public local inquiry in an appropriate case beyond noting that the suggestion was made.


[108] In order for Article 6 to be engaged, it is necessary that civil rights of the appellants were being determined at the public local inquiry. This, therefore is the next question to be addressed. Most of the argument before me focused on the appellants' A1P1 right to peaceful enjoyment of their possessions. In my opinion the appellants have not demonstrated that there was any determination at the inquiry of their A1P1 rights. In Rayner v
United Kingdom (above), which concerned aircraft noise around Heathrow Airport, the Commission observed (page 14) that A1P1 is "mainly concerned with the arbitrary confiscation of property and does not, in principle, guarantee a right to the peaceful enjoyment of possessions in a pleasant environment". The Commission noted that the applicant had not submitted any evidence showing that the value of his property was substantially diminished on the ground of aircraft noise and rejected the claim for violation of A1P1. In S v France, the Commission reiterated (page 261-2) that A1P1 did not guarantee the right to enjoy one's possessions in a pleasant environment and referred to the decision of the Court in James v United Kingdom (1986) 8 EHRR 123 that the taking of property without payment of an amount reasonably related to its value would normally constitute a disproportionate interference which could not be considered justifiable under A1P1. Antonetto v Italy was similarly concerned with diminution in value of the applicant's property due to the failure of the administrative authorities to secure the demolition of an unauthorised neighbouring building.


[109] I bear in mind that I am concerned here with the question whether there has been a determination of A1P1 rights rather than with the question whether there has been a violation of such rights. Nevertheless it seems to me to be clear from the cases which were relied upon by the appellants that adverse effect on the amenity of property is not sufficient of itself to be capable of constituting a violation of A1P1 if there has not been a consequent diminution in value of the property. I am not satisfied that there is any material before me which would entitle me to conclude that implementation of the scheme which was examined at the inquiry would result in the diminution in value of the appellants' property. It was rightly pointed out on behalf of the appellants that it was not within the Reporters' remit to make findings regarding diminution in value and it was, I think, ultimately accepted on behalf of the respondents that even if the appellants had sought to raise such an issue at the inquiry it would have received little attention from the Reporters. In that regard there was nothing unusual about the scope of this inquiry. Nor could evidence of diminution of value have been placed before this court in an appeal restricted to points of law. But these, as it seems to me, are difficulties for the appellants rather than for the respondents: it is for the appellants to satisfy the court that the respondents' decision to make the scheme was unlawful because it violated the appellants' Convention rights. Counsel for the appellants initially sought to argue that it was "an irresistible inference" from the Reporters' finding (paragraph 9.106) that the character of the farm would be adversely affected and that this would be likely to affect public perceptions of the farm that the value of the farm would be affected, but I do not agree that I would be entitled to draw such an inference without material to support it. I therefore hold that I am not satisfied that the lack of an opportunity to argue at the inquiry that the Fastlink should not be built constituted an interference with the appellants' right to peaceful enjoyment of their possessions.


[110] Ultimately, as I understood his position, senior counsel for the appellants was content to argue that the Reporters' finding regarding adverse affect on the farm's character could be regarded as a determination of civil rights under Article 8 rather than under A1P1. The appellants' complaint of violation of Article 8 was initially based upon the "adverse and disproportionate" impact which construction of a Fastlink in terms of the scheme would have upon their ability to continue to follow their chosen profession of organic bio-dynamic farmers on the land which they own. Once again, I find no basis in the material before me which would entitle me to conclude that the scheme would have such an impact. No finding was made by the Reporters which would support this submission, it having been accepted by the first appellant in his precognition to the inquiry that the farm's biodynamic status would not be lost as a consequence of the scheme. I therefore reject the contention that there has been a determination of the appellants' article 8 rights so far as any impact upon their ability to carry on the profession of organic bio-dynamic farmers is concerned. One is left, therefore, with the Reporters' finding regarding adverse effect on the character of the farm. The respondents initially sought to draw a distinction between loss of amenity on the one hand and adverse effect on character on the other, but senior counsel conceded that it was difficult to distinguish "character" from "amenity" in this context. I agree. I emphasise once again that the issue which I am addressing is whether there was a determination rather than a violation of the appellants' Article 8 rights. The appellants made clear that they were not arguing the latter point, and it is not therefore necessary for me to consider the application to the present case of the reference by the European Court of Human Rights in Hatton v United Kingdom (2003) 37 EHRR 611 (at paragraph 96) to being "directly and seriously affected by noise or other pollution". It is sufficient for me to conclude that the Reporters' finding at paragraph 9.106 does amount to a finding that the appellants will suffer a loss of amenity as a consequence of the scheme and accordingly that, to this extent, there has been a determination of their Article 8 rights. It follows that their Article 6 right is engaged.


[111] I turn then to consider whether, on the particular facts and circumstances of this case, the appellants' Article 6 rights were violated by the non-availability of state-funded legal representation at the inquiry. I accept the respondents' submission that the test which I should apply is that enunciated by the European Court of Human Rights inter alia in Airey v Ireland and P, C and S v United Kingdom, namely whether the assistance of a lawyer was indispensable for effective access to the inquiry by reason of the complexity of the procedure or the type of case. That test does not fall to be applied to the whole range of issues with regard to which the appellants may have wished to - and did - make representations to the inquiry, including the balance between economic, environmental, social, cultural and local benefit or the use of productive agricultural land for the construction of a road. It falls rather to be applied to the issue in respect of which I have held that the appellants' civil rights were determined at the inquiry, i.e. the question whether the adverse effect of the scheme on the character of their farm may have constituted an interference with their Article 8 rights. In my opinion it cannot be maintained that legal representation at the inquiry was indispensable for the effective presentation of this issue to the Reporters. The point that construction of the Fastlink in proximity to the appellants' farm would cause a loss of amenity is a short one which was, in my opinion, capable of being placed before the inquiry by the appellants without the need for legal knowledge or experience. As I have already noted, it was in fact addressed in submissions made by the appellants before, during and at the close of the inquiry. It is also worth emphasising, as Circular 17/1998 (mentioned earlier) makes clear, that planning inquiries are not intended to operate as formally as a court of law. Loss of amenity is the type of issue that inquiry Reporters are well capable of assessing without the need for legal input. The circumstances of this case are, in my opinion, very far removed from those of cases such as SK v
Paterson and Steel and Morris v United Kingdom in which legal representation has been held to be necessary for effective access to a court. I therefore hold that there has been no breach of the appellants' Article 6 rights by virtue of the non-availability to them at the inquiry of state-funded legal representation. I should add for the sake of completeness that had I found that if the Reporters' finding regarding adverse effect on the farm's character constituted a determination of the appellants' rights under A1P1, I would have reached the same conclusion regarding their Article 6 rights as I have reached under reference to Article 8.


[112] The final point to be addressed in this chapter of the appeal is the appellants' contention that the restricted scope of the inquiry constituted a breach of their A1P1 right to peaceful enjoyment of their possessions. As I have held that the appellants have not established that the inquiry constituted a determination of their A1P1 right , it follows in my opinion that they have not established that the respondents' decision to make the scheme, without affording an opportunity for the appellants to challenge the existence of the Fastlink at all at the inquiry, amounts to an interference with that right. I therefore reject the appellants' challenge founded upon A1P1.

Fraser appeal: failure to address Reporters' recommendation

[113] I mentioned briefly above that the Reporters had made a recommendation that investigations be made of the potential for build up of concentrations of heavy metals in the appellants' field closest to the proposed Fastlink route. This arose out of a concern first mentioned by the first appellant in his oral evidence to the enquiry and reiterated in his closing submission, in which the concern was focused thus:

"Potential to lose [biodynamic] organic certification due to pollution from road, major danger being heavy metals from tyres, brakes and exhaust which would build up over a period of years..."

Transport Scotland made submissions to the Reporters (recorded at paragraphs 9.98 - 9.101) in response to the expression of this concern. The matter was addressed by the Reporters in their findings of fact as follows:

"9.104 "...We do not consider that [Transport Scotland] has fully addressed the objectors' concern that concentrations of heavy metals might build up over time in the soils of their farm, particularly the main field, which would be closest to the route. This issue is important to the objectors as their organic/biodynamic certification would necessitate regular soil sampling should the scheme proceed.

...

9.107 "We recommend that the potential for the build up, over time, of concentrations of heavy metals in the objectors' field closest to the proposed route be further investigated, and that consideration be given to implementing further mitigation measures, if appropriate."


[114] There is no express mention of this recommendation in the Reporters' conclusions and recommendations in Chapter 11 of the report. Nor is it mentioned or addressed in the respondents' decision letter. That being so, the appellants contend that the respondents have erred in law in reaching a decision without carrying out the investigations recommended or imposing such conditions as may be necessary in the scheme and orders to secure appropriate mitigation. This could be seen either as a failure to take a material consideration into account in reaching the decision or as a failure to give adequate reasons, resulting in prejudice to the appellants.


[115] In my opinion there is no merit in this ground of appeal. The issue came before the inquiry simply as a concern expressed by the appellants, unsupported by evidence. Although the Reporters recommended that the potential for build-up of concentrations of heavy metals be further investigated, they did not consider it appropriate to include it among the matters upon which Ministers would wish to be satisfied before reaching their decision on whether or not to make the scheme. Nor did the Reporters recommend the imposition of a condition requiring the taking of mitigation measures or even the carrying out of monitoring. This is unsurprising given that there was no material before them to assess whether there was any substance to the expression of concern. The Reporters' overall conclusion (paragraph 11.4) was that the environmental effects of the scheme would not be so severe as to render the proposal unacceptable. In the light of that conclusion, I do not consider that there was any obligation on the respondents to address this concern specifically in the decision letter, whether by imposition of conditions or otherwise. As Lord Brown of Eaton-under-Heywood observed in South Bucks District Council v Porter (No 2) (above) at paragraph
36, a decision-maker's reasons need only refer to the main issues in dispute, not to every material consideration. I was advised at the hearing that since publication of the decision letter, investigations have been carried out by Transport Scotland in accordance with the Reporters' recommendation. In my opinion this was a proper and adequate means of addressing the Reporters' recommendation, and the respondents did not err in law in failing to address the concern specifically in the decision letter.

Fraser appeal: breach of rights under European Charter of Fundamental Rights

[116] It was finally submitted on behalf of the appellants that the non-availability of state-funded legal representation constituted a breach of their rights under the EU Charter of Fundamental Rights ("the Charter"). This was not, it was said, an "unnecessary flourish". The Charter now has the same legal value as the EU Treaties (see Article 6 TEU) and this court is bound to give effect to it. Its significance in relation to the present appeal was as follows. In contrast to Convention rights, EU law has primacy over national law, so that national legislation which is incompatible with Charter rights must be disapplied by the court rather than merely being declared to be incompatible as would be the case under the Human Rights Act. Reference was made in this context to DEB v
Germany
[2011] 2 CMLR 21. There was no possibility of public authorities being able lawfully to act in a Charter-incompatible manner as they could if required to act in a Convention-incompatible manner by primary legislation. A Charter right can be claimed to ensure vindication of EU law rights - in this case, of consultation as public concerned - whether or not they would be classified as civil rights for the purposes of Article 6 of the Convention. The right to legal aid was made express in the third paragraph of Article 47 of the Charter, which provides that

"Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice."

The first two paragraphs of Article 47 confer rights similar to those set out in the first sentence of Article 6 of the Convention. It may be observed that use of the word "necessary" in the third paragraph of Article 47 would appear to echo the "indispensable" test which has emerged from the Strasbourg case law and which I have sought to apply in this appeal.


[117] In assessing the significance of the appellants' Charter rights in the present case, I bear in mind that, in terms of Article 51(1) of the Charter, it is addressed to the Member States only when they are implementing EU law. Article 52(3) states that

"In so far as this Charter contains rights which correspond to rights guaranteed by [the Convention], the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection."

As the preamble to Protocol No 30 on the application of the Charter to Poland and to the United Kingdom notes, the Charter "reaffirms the rights, freedoms and principles recognised in the Union and makes those rights more visible, but does not create new rights or principles". Article 1 of the Protocol confirms that the Charter does not extend the ability of any court of the United Kingdom to find that the laws of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.


[118] I have held in this opinion that there has been no breach of the appellants' Community law rights under Article 6(4) of the EIA Directive. I have further held that there has been no breach of their rights under Article 6 of the Convention or under A1P1. It may be that if I had held that there had been any such breach, the existence of rights under the Charter would have made a difference to the range of remedies available to this court, though it is unnecessary for me to express a view on that. In the absence of such breach, I consider that the appellants' argument based upon rights under the Charter adds nothing to what has gone before. The Charter creates no new rights or principles and accordingly, in the circumstances of this case, takes the appellants no further.

Disposal

[119] The consequence of my opinion on the various issues argued is that both appeals fail. I shall put both appeals out By Order to hear submissions on any questions of expenses.


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