In a recent decision the Supreme Court has reiterated the position regarding the ability of challengers to bring environmental public law claims where their own interests are not directly affected, and the availability of remedies in such cases.

Key Points

  • In both England and Scotland, a challenger in an environmental public law case will ordinarily be regarded as having standing if they participated in the planning procedures which led to the decision complained of.
  • An individual's private interests need not necessarily be affected in order to have standing.  However, there must be a genuine interest in the aspects of the environment affected and where an individual acts in a representative capacity, he must have sufficient knowledge of the subject to qualify him to do so.
  • The nature of the challenger's interests will have a direct bearing on the exercise of the court's discretion in granting a remedy.

The challenge

The appeal concerned a challenge by Mr Walton, chairman of Road Sense, a local organisation opposing the western peripheral route ("WPR"), a new road network bypassing Aberdeen and part of the wider regional transport strategy for the area (the "MTS"). Following a campaign against part of the proposed route the scheme was revised to include a further link road (the "Fastlink").

Following an unsuccessful challenge of the WPR by way of the statutory appeal process in the Roads (Scotland) Act 1984 (the "Act") Mr Walton appealed from the Scottish courts to the Supreme Court, arguing that the Fastlink had been adopted without the public consultation required by the Strategic Environmental Assessment Directive ("SEA Directive") and that under the common law principle of fairness the public inquiry that was held should have addressed the economic, policy or strategic justification for the Fastlink. 

Judgment of the Supreme Court

Mr Walton's appeal was unsuccessful on all grounds.

SEA Directive

The Supreme Court made a distinction between the SEA Directive as applying to the effects of "plans" and "programmes" (as defined in article 2(a) of the SEA Directive), and the Environmental Impact Assessment Directive ("EIA Directive") as applying to the impact of "specific projects." On the facts, the court held that the MTS was a "plan or programme" for the purposes of the SEA Directive. However, the decision to extend that project by incorporating the Fastlink was not a modification of a plan or programme within the meaning of the SEA Directive. This was on the basis that the decision to construct the Fastlink did not alter the framework for future development consent of projects, but altered a specific project which continued to require development consent. The Court concluded that the effects of the Fastlink on the environment were capable of being fully assessed in accordance with other applicable EU legislation, including the EIA Directive.

Procedural Fairness

The Court noted that the Act laid down detailed provisions governing the consideration of representations and the holding of inquiries. It had not been suggested that Mr Walton had any legitimate expectation that the scope of the public inquiry would include the economic, policy or strategic justification for the Fastlink. Therefore, the Court concluded, there was nothing to suggest that the remit of the inquiry was unfair. 

Standing

Under the Act an individual must be a "person aggrieved" in order to bring a challenge. This is analogous to the test in English law for statutory appeals of planning decisions under the Town and Country Planning Acts.

The court held (on an obiter basis) that in deciding whether an individual is a "person aggrieved" it will be important to consider both the legislative and factual context.  In both Scottish and English law persons will ordinarily be regarded as aggrieved if they made representations as part of the procedure which preceded the decision challenged and their complaint is that the decision was not properly made, which was the case in this instance. However, any representations would need to have been made at the appropriate stage of the procedure.

The Court added that where a challenger has not participated in the process he may still be a "person aggrieved", for example, where an inadequate description of the development in the application or advertisement could have misled him so that he did not object.

The court found that Mr Walton would also have had sufficient standing to bring proceedings for judicial review (albeit such proceedings would have failed on the merits). As in the context of a statutory challenge it considered that a personal interest need not necessarily be shown by the individual. However, it would be necessary for the individual to demonstrate some particular interest in order to show that he was not a "mere busy body". As long as he acted in the public interest and could genuinely say that the issue directly affected the section of the public that he sought to represent, he would have sufficient standing.

Remedies

It was held (again on an obiter basis) that the nature of the challenger's interests would have a direct bearing on the exercise of the court's discretion in granting a remedy in environmental public law cases. The court noted that in both statutory and common law challenges based on a procedural defect (e.g. a failure to properly consult) a challenger will be refused a remedy unless he has been personally substantially prejudiced by the procedural failure. However, where a substantive rather than procedural defect is found (e.g. a failure to comply with the requirements of an EU Directive), the court's discretion to refuse a remedy will be much more limited. 

Mr Walton had not shown that his interests had been substantially prejudiced and therefore, even if the case had succeeded on the merits he would not have been entitled to a remedy. The court noted that in exercising its discretion it must balance the interests of the challenger with countervailing public and private interests. 

Comment

The Supreme Court's decision in Walton emphasises that, in both England and Scotland, the courts will take a flexible approach to standing in judicial reviews and statutory appeals in environmental cases. However, the starting point for the courts in deciding whether a challenger has standing will be the degree to which they were involved in the process preceding the decision being challenged.

This flexible approach will also be applied to the courts' discretion to grant remedies in such cases. However, whether a challenger has standing will have a direct impact on the court's willingness to exercise its discretion to grant any remedy at all.