Petition for Judicial Review in which Mr McGinty sought reduction of National Planning Framework for Scotland 2 (NPF2) to the extent that it designates a new power station and transportation hub at Hunterston.

Mr McGinty’s argument was that the Scottish Ministers had not complied with their obligations relating to notice and consultation with regard to the proposed development.

Facts and background

The Ministers conducted a consultation process on the scope and content of NPF2 between February and October 2007. A discussion draft was issued in January 2008 with a consultation period from 8 January until 15 April 2008. The revised NPF2 was published in December 2008 and considered by the Scottish Parliament between 12 December 2008 and 6 March 2009. The finalised NPF2 was laid before the Scottish Parliament on 25 June 2009 and published on the Scottish Government’s website on 2 July 2009.

The Hunterston development was included as item 9 in a list of 14 national developments in the finalised NPF2 approved by the Ministers. However, it was not included in the discussion draft of NPF2 which had been issued in January 2008 (and contained only 9 proposed national developments). Hunterston had been proposed as a candidate for national development during the consultation process, the responses to which were posted on the NPF website on 8 August 2008.

On 19 September 2008 a supplementary consultation paper was published on the NPF website and included 52 potential national developments including Hunterston.  At or about the same time the “NPF2, SEA Guide” and a newsletter were also published on the NPF website. Both of these publicised the supplementary paper and requested responses to it by 31 October 2008. Intimation of the supplementary paper was also made in the Edinburgh Gazette on 23 September 2008.

Arguments and decision

The Ministers contended that the publicity given to the supplementary paper was sufficient to comply with their requirements in terms of the legislation (The Town and Country Planning (Scotland) Act 1997 and Directive 2001/42/EC). They also argued that, in any event, the petition was barred by mora, taciturnity and acquiescence and further that Mr McGinty had no title and interest to present the petition.

Mora

With regard to mora, taciturnity and acquiescence, Mr McGinty said that he first became aware of the Hunterston development’s inclusion in NPF2 at a public meeting in Largs on 28 July 2009, had contacted solicitors on 11 August and raised the petition on 23 September 2011.

Lord Brailsford found that, had the period of delay been confined to the 7 week period, there would probably have been no merit in the plea of mora. However, having formed the view that the procedure followed by the Ministers did not breach their obligations with regard to publicity, Mr McGinty ought to have been aware of NPF2 in September 2008.  Against that background Lord Brailsford was of the view that the plea of mora should be upheld.

Title and interest

With regard to Mr McGinty’s title and interest to raise the petition, the relevant facts were that Mr McGinty resided in Largs (about 5 miles from the Hunterston site). His only connection with the site, beyond the geographical proximity, was that he occasionally used it on an informal basis for recreational purposes.  Lord Brailsford said:

“Without in any sense wishing to denigrate such usage, from which I have no doubt the petitioner obtains both pleasure and benefit on the occasions that he exercises it, it cannot I think in fairness be regarded as other than somewhat vague and remote”.

At best, Lord Brailsford considered Mr McGinty may have been regarded as having title to sue in order to “prevent a breach by a public body of a duty owed by that public body to the public”. However, it was also found that Mr McGinty did not have “a real and legitimate interest to protect” or “real and practical” interest to bring the proceedings. Lord Brailsford noted:

“He does not reside adjacent to the site and is not therefore a neighbour. His use of the site is limited, intermittent and non-essential. The type of usage he exercises over the site could in fact be exercised over any area of land to which the public has access at any location in Scotland. He does not sue as a member or representative of a group or organisation with title or interest. If an interest of this sort were to constitute sufficient interest to sue in a public law question then any member of the public who, on occasion, used a piece of ground for recreational purposes would have a title and interest to challenge a public law decision which affected that ground…. I do not consider that it is either desirable or, perhaps more pertinently, necessary for the discharge of public bodies to be subject to challenges by persons, no matter how well intentioned they may be, whose link with a site or subject are as remote as this.”

Publicity

There was also discussion as to whether advertising the Edinburgh Gazette was sufficient to comply with the requirements for publicity given that it is not of wide publication and is not ready available to, or even known by, members of the public.  However, Lord Brailsford took the view that the Edinburgh Gazette is the recognised method in Scots law of publishing formal and legal notices and, as long as that status remains, advertisement in it should be regarded as a proper means of bringing matters such as the supplementary paper to the public attention.

Also, although many members of the public would rarely visit the Scottish Government’s website, it too was an entirely proper means of making information available to the public.

Whilst publication in a local newspaper would be an effective means of bringing such matters to the public attention, Lord Brailsford did not consider it was the only means of doing so and, more importantly, did not consider it was a necessary requirement. Such a requirement would add considerably to the burden and cost of the administration of strategic planning and would constitute an unnecessary and onerous obligation on the Scottish Ministers.

The full judgement is available from Scottish courts here: