WALTON & FRASER v DECISION of SCOTTISH MINISTERS

Aberdeen Western Peripheral Route.

For the reasons set out in the full Opinion, Lord Tyre has refused these appeals.

These two appeals, which were heard together, were brought under Schedule 2 to the Roads (Scotland) Act 1984.  They concern a decision of the Scottish Ministers to make a number of road orders and schemes in connection with the construction of an Aberdeen Western Peripheral Route (AWPR). The respondents’ decision was published on 21 December 2009 following a public local inquiry held in 2008.  The report of the inquiry was published on 30 June 2009.

The appellants in both appeals argued that the procedure had been unfair because the inquiry held in 2008 was given an unreasonably restricted remit.  They argued that in order to comply with the Aarhus Convention on public participation in decision-making with consequences for the environment, objectors had to be given an opportunity at the inquiry to challenge the inclusion in the proposed AWPR scheme of a link - known as the Fastlink - running from a junction near Peterculter south to Stonehaven.  They also argued that, regardless of the Aarhus Convention and EU law, it was procedurally unfair that no opportunity was given to objectors to challenge the need for the Fastlink at the inquiry. 

Lord Tyre rejected these arguments and held that sufficient opportunities had been given prior to the commencement of the inquiry for public representations to be made regarding the need for the AWPR, and that the decision of Scottish Ministers to proceed with a "hybrid" of two previous potential routes did not require them to open up the need for the Fastlink to scrutiny at the inquiry.  The Scottish Ministers were therefore entitled to restrict the scope of the inquiry to technical and environmental issues connected with the particular line which was proposed for the road to follow.
 
There were also two separate challenges based upon obligations incumbent on Scottish Ministers under the Habitats Directive.  One related to the impact of the scheme on the River Dee Special Area of Conservation (SAC), the other to the disturbance of European protected species (otters and five species of bat).  The appellants argued that in neither case had the Scottish Ministers properly addressed the rigorous requirements which must be met before a project which has an adverse effect on a SAC or which results in the disturbance of protected species, can proceed.  Again the court rejected these arguments and found that the Scottish Ministers did sufficiently address all of the relevant requirements.
 
In the appeal by Mr and Mrs Fraser it was argued that their rights under Article 6 of the European Convention on Human Rights (ECHR) were breached because there was no statutory provision which would have enabled them to receive state-funded legal representation at the inquiry, and that this prevented their case from being effectively presented.   While the court decided that the inquiry did amount to a determination of their rights under Article 8 ECHR (right to respect of private and family life), though not of their rights under Article 1 of the First Protocol to the ECHR (right to peaceful enjoyment of possessions), it did not consider that legal representation was crucial in order for their case regarding loss of amenity at their organic/biodynamic farm, due to the construction and operation of the road, to be effectively presented at the inquiry.   The court therefore rejected this argument.

The full Opinion of Lord Tyre can be viewed here.

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