Planning & Environment

The Inner House verdict on the latest (and last?) round of the AWPR saga was issued last week. Despite a lengthy judgement, it would be fair to say that the challenger was, once again, given short shrift. Lord Clarke’s description of one of the arguments as “…another edifice which was built on non-existent foundations…” gives a flavour of the court’s view. Ouch!

On the key issues, the Inner House upheld the approach taken last time round vindicating Transport Scotland’s approach – see our previous blogs in August last year for a recap.

Perhaps of more interest this time were the court’s comments on the status of the challenger, Mr Walton. The AWPR case was brought as a statutory challenge under the Roads (Scotland) Act 1984. Following the making of the orders for a scheme like this, the 1984 Act allows a challenge to be brought in the Court of Session within 6 weeks on limited legal grounds. The challenger must be “a person aggrieved” by the decision to make the scheme orders (similar to wording used in the Planning legislation). Although the Ministers didn’t run this argument (potentially with good reason), the court was clearly of the view that Mr Walton was not “aggrieved” in the sense meant by the 1984 Act. He was not affected by the CPO for the scheme and lived some distance from the southern leg of the route. On that view he would be no more affected by the AWPR than an occasional visitor to Aberdeen. Accordingly even if the court had been convinced by the challenge, it would not have exercised its discretion to grant Mr Walton any remedy.

Given the court’s conclusion, it’s interesting to think back to the protective expenses order (PEO) granted to Mr Walton and Road Sense at the start of the process. A PEO will not be granted if the applicant has a private interest in the matter under challenge. But that same lack of interest would apparently have prevented Mr Walton from succeeding with his challenge, even if his grounds of challenge were thought to be good! Is it just me, or is something not quite right here…

Aarhus fans and anyone else with strong views should participate in the Scottish Government’s current consultation on PEOs.

Karen Hamilton

Partner at Brodies LLP
Karen is a partner at Brodies in the Transport and Real Estate sectors. She delivers results for clients by considering planning issues from all angles. Karen has significant experience of compulsory purchase in relation to both procedural and compensation issues.
Karen Hamilton

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