The decision of Lord Brailsford in Marco McGinty v Scottish Ministers [2011] CSOH163 has caused considering press comment. It will be interesting to see whether or not the case is appealed.
Mr McGinty was the beneficiary of a protective costs order. This was the second case to come before the Scottish Courts recently where the petitioner has the benefit of such an order but had been unsuccessful. Clearly the fact that such as order is made is no guarantee of success. The other case (Challenges & European Law) is under appeal to the Inner House of the Court of Session with a hearing due to take place in December 2011.
In the McGinty case, Lord Brailsford was clearly troubled by the fact that preliminary pleas were not dealt with before a substantive hearing on the merits. Preliminary pleas under Scots Law are essentially legal issues (capable of being dealt with in isolation) which may be determinative of a matter, thereby avoiding the need for a full hearing. In this case the preliminary pleas were to the effect that Mr McGinty had no proper title or interest to bring the action and separately that the right to bring the action had been lost by delay (a plea more properly known under Scots Law as mora, taciturnity and acquiescence). As will be seen below, Lord Brailsford upheld both of these pleas so not only did Mr McGinty lose on the merits, Lord Brailsford was of the view that the delay in bringing the action was a bar to the action succeeding and separately Mr McGinty had insufficient title and interest to bring the action.
Counsel for both parties at the hearing before Lord Brailsford wanted there to be a full hearing on all aspects of the case rather than a hearing limited to these preliminary pleas. The approach of Counsel appears to have been different however. Counsel for Mr McGinty suggested that the arguments in relation to the preliminary pleas could only properly be seen in the context of the wider issues. Counsel for the Scottish Government appeared to have accepted that certain issues in respect of the preliminary pleas could be dealt with in isolation but nonetheless felt it appropriate to go ahead with the full hearing.
Lord Brailsford was clearly troubled by this with reference to unnecessary waste of expense and use of court time. Expense of course is a particularly relevant consideration where the costs of Mr McGinty had been capped with a consequence that what the Scottish Government (as the successful party) can actually recover is limited. It will be interesting to see whether this issue has more prominence going forward when a Scottish court is considering whether or not to make a protective costs order.
The McGinty case was really a challenge to the National Planning Framework 2 (NPF2), a key planning document in Scotland. In effect what Mr McGinty was challenging was the designation of Hunterston for a new power station and transmission hub as a national development. National developments have particular significance in the planning hierarchy. As they are in effect identified in NPF2 this means that the principle of the development is not up for debate in relation to any inquiry process. It is also likely that national developments will be those which are in reality prioritised by the Scottish Government so far as resources and spending is concerned.
Briefly, Hunterston did not feature in the draft NPF2 which was consulted on in the early part of 2008. From a summary of the case Hunterston it appears emerged during the consultation process. Mr McGinty's argument was that given that background there was a failure to properly consult and a failure to assess the project in an environmental context having regard to a European Union Directive which has been implemented in Scotland through the Environmental Assessment (Scotland) Act 2005. It appeared to be common ground that the Act had correctly implemented the Directive.
There was in fact a supplementary assessment for environmental purposes in respect of Hunterston which was apparently advertised in the Edinburgh Gazette – a legal "newspaper".
In effect Mr McGinty argued that due to the failure to properly consult and assess the Hunterston project, the designation of Hunterston in terms of NPF2 should be set aside or alternatively the whole of NPF2 should be set aside. While Mr McGinty was unsuccessful it appears that if he had been successful probably the first of these would have been the correct approach to take – there appears to be little justification for setting aside the whole of such an important document simply because of a failure in relation to one aspect of it.
While in effect the case could have been determined on the preliminary basis given Lord Brailsford's approach to these (see below), he did look at the substantial merits and ruled against Mr McGinty in relation to these. Section 16 of the 2005 Act requires notice to be given of the preparation of an environmental report prepared for the purposes of that Act. That notice is to be given "in at least one newspaper circulating the area to which the plan or programme [which is being assessed] relates". Lord Brailsford took the view that advertisement in the Edinburgh Gazette satisfied that requirement. Part of the case for Mr McGinty was that that publication is not readily available and not widely known. The view that Lord Brailsford came to was that this was a recognised method in Scots Law of publishing formal and legal notices.
That may be correct but it is certainly not a means by which members of the public will normally become aware of programmes and plans of the sort that we are concerned with here. It is fair to suggest the Edinburgh Gazette has a limited readership. It is interesting to note that Section 16(4) requires publication in at least one newspaper (it appears there was only one newspaper advertisement here). Sub-section 4 also suggests that the purpose of that is to "ensure that the contents of the notice are likely to come to the attention of the public – (a) affected or likely to be affected by; or (b) having an interest in the plan or programme". It must be debatable as whether publication in the Edinburgh Gazette is likely to ensure that the contents of the notice come to the attention of the public as required. While it is fair to say that Lord Brailsford's opinion was buttressed by reference to the fact that the supplementary assessment in relation to Hunterston appeared on relevant websites and equally Lord Brailsford dealt with the issue of more general publication in the local newspaper (he did not see this as necessary), there may yet be further discussion on this issue. Certainly if a purposeful approach is taken (following the approach in the European Courts particularly in respect of environmental matters) advertisement in the Edinburgh Gazette is unlikely to achieve the purpose behind the legislation.
As noted above Lord Brailsford also dealt with the issues of the preliminary matters already referred to.
The first of these related to an issue which has caused considerable debate in Scots Law over the last 2 or 3 years, namely the issue of title and interest. It has been considered, for example, in relation to the Trump development (see Forbes v Aberdeenshire Council [2010] COSH10 – Trump Golf Proposal) and equally in relation to the litigation concerning the legislation in relation to damages for asbestos related conditions (AXA General Insurance Limited v The Lord Advocate [2011] SLT439). The AXA case has been appealed to the Supreme Court and the decision is awaited.
Lord Brailsford appears to have acknowledged that the Scottish judges have taken different approaches to title and interest recently albeit approaches that are possibly reconcilable. He appears to have adopted the approach of Lord Emslie in the AXA case. Lord Emslie suggested that any interest must be genuine and if the interest was remote, tenuous, academic or theoretical then that would not justify court action. He accepted (as did Lord Brailsford) however that if the action related to a public law issue then title and interest should be approached on a different (more related) basis.
It will be interesting to see whether the Supreme Court in the AXA case take a different and more generous view in relation to matters. It may yet be the case that issues of title and interest in Scots Law will have to be revisited by the European Courts were there are issues of European Law (particularly for example in relation to environmental matters). The European Courts (particularly in the context of matters within the ambit of the Aarhus Convention) are likely to take a very broad and purposeful approach to matters.
In the McGinty case Lord Brailsford held that Mr McGinty did not have title and interest having regard to the relevant facts including the extent to which he actively made use of the land which is likely to be developed if the Hunterston proposal goes forward. He lives 5 miles away and accordingly to Lord Brailsford his use of the site was limited. Again this approach is likely to be controversial.
The second preliminary issue is whether there had been a delay in bringing the action. It appears that there was a period of 7 weeks between Mr McGinty actually becoming aware of the Hunterston proposal and his action being brought before the court. The real issue here was whether that was the relevant period or whether the relevant period was the period between the Hunterston proposal being published (to the extent it was) and the action being brought by Mr McGinty before the Scottish Courts. Lord Brailsford took the view that where there has been compliance with the relevant legislation (as he held there was here), then the test was an objective one – in other words the test based upon the true factual position not when Mr McGinty became aware of the proposal. The consequence of this was that there had been, in his view, undue delay in bringing matters forward (such as to preclude the action).
It will be interesting to see whether this case is appealed though that raises further issues in respect of costs.
This case does illustrate the difficulties that any petitioner has in bringing challenges in planning matters before the Scottish Courts. The approach of the courts in relation to issues such as title and interest does appear to be a fairly restrictive one. Should any case involving such issues in the Scottish Courts end up before the European Courts it will be very interesting to see whether the approach taken by the Scottish Courts is upheld.
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