Planning & Environment

As the saga of the AWPR draws to a close (subject to any further appeal), developers and promoting authorities learn from the experience, which has application beyond the field of transport and public projects. This blog focuses on the consultation issues arising in the case – watch out for Part 2 on the Habitats Regulations next week.

Ultimately the detour to the Court of Session caused a project delay of some 17 months. Cynics might suggest that financial constraints would have prevented the Government from implementing the scheme during that period in any event, but that’s another question…

Public Participation

One of the main complaints raised by the anti-AWPR campaigners (the appellants) related to the perceived lack of consultation on the Scottish Government’s preferred route. More specifically, the appellants argued that they had been denied the opportunity to comment on the need for the “Fastlink” element of the scheme (an additional leg connecting Stonehaven to the main peripheral route at the Charleston junction). Fastlink had emerged at a late stage in the process, after the principal route consultation exercise which considered 5 options. While the preferred route, including Fastlink, had been the subject of objections and examined at public inquiry, the inquiry had not examined the strategic case for the scheme or the Fastlink element.

The appellants argued that the approach taken breached their right to public participation under the Aarhus Convention, and rendered the inquiry meaningless. Recognising that the European framework envisages a “tiered” approach to assessment and decision making, the court took the view that the Aarhus requirements were met. The public had participated in the strategic decision making process which identified the need for the AWPR and set the scheme objectives. The public had similarly participated in the next level of decision making which evaluated particular route options for the scheme within the confines of the adopted strategy. The decision to incorporate Fastlink did not require the strategic consultation exercise to be revisited so long as the strategy and objectives remained unchanged. At the route selection level, the Fastlink version of the AWPR was sufficiently similar to the 5 options which had been exposed to public comment (it was viewed as a hybrid of 2 of those options). In any event, examination of the preferred option at public inquiry following the opportunity to object to the scheme orders satisfied any residual need for public participation without requiring to reopen the earlier strategic issues.

So what can we take from the AWPR experience? The Government’s approach was vindicated at the end of the day but at significant cost.

  • The Government had good reason for restricting the inquiry remit in this case, but would a broader remit with a longer inquiry have saved significant time and expense in the long run? Possibly. This sort of question requires a cost/benefit analysis. However the truly determined objector will always find a way, regardless…
  • Challenges arising from the process of scheme development and design are well known. Alterations to a scheme may require a developer to repeat earlier steps in the process such as EIA, or PAC, and satisfying the consenting authority is not in itself a silver bullet. Recognising the need for remedial steps is key.
  • Private sector projects may have their origin in a plan or programme devised by a public body which is subject to additional legal requirements, such as “public participation”. Developers beware. Focussing exclusively on the later “consents” stage of the process may be short sighted. Potential problems which have taken root at the strategic planning stage may become your headache further down the line – no change there! The answer is to engage early, and take a due diligence approach to the work of third parties where you are to inherit the benefit. And on that note – see more in Part 2!

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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