Scotland's national transport infrastructure has been given a major boost following the Inner House of the Court of Session's decision to refuse an appeal against the construction of the Aberdeen Western Peripheral Route.
The route, which was originally given the green light by Scottish Ministers in 2009, was objected to by William Walton, a campaigner from the protest group Road Sense, on the grounds that the original public inquiry into the project had been flawed. The Inner House rejected Mr Walton's appeal against the decision of Lord Tyre last year, which refused the challenges against the Aberdeen bypass.
The lengthy and complicated decision of the Inner House raises a number of interesting points. The ruling had the effect of vindicating the Scottish Ministers actions by dismissing Mr Walton's attacks to the various orders and upholding the Ministers' approach.
Of some interest however is the court's consideration of Mr Walton's status to bring the challenge in the first place.
The appeal was brought as a statutory challenge under the Roads (Scotland) Act 1984, which allows for a challenge to be made in respect of the making of a scheme or order under that Act within 6 weeks of the decision by "any person aggrieved". The court came to the view that Mr Walton was not an aggrieved person under the Act because his interests would not be substantially prejudiced, nor would his property be affected, by the route thereby making him no different from visitors to Aberdeen. On this basis, the court took the view that even if it had found in Mr Walton's favour, it would not have exercised its discretion to grant relief.
It is interesting to note that in this decision the court referred to the recent Supreme Court ruling in Axa General Insurance Ltd and Others v The Lord Advocate and Other. There the court sought to broaden the basis upon which a person can claim the right to bring an action concerning "public issues". The consequence of that decision appeared to make it easier for individuals and groups representing particular interests to pursue judicial challenge. Having referred to that case however the Inner House appears to have taken a more restrictive approach. While the case brought by Mr Walton was not a judicial review it had a similar intent. It will be interesting to see how this apparant "tension" plays out.
A further consideration arising from the Inner House's decision relates to the Protective Expenses Order (PEO) granted to Mr Walton and Road Sense at the outset. In light of the court's comments on Mr Walton's status to bring a challenge, the availability of a PEO may be subject to further consideration in similar challenges. It will be interesting to see how the issue of PEOs develops particularly in the context of the Scottish Government's ongoing consultation on proposals to specifically legislate in this area.
Next Steps
Subject to any further appeal to the Supreme Court, this latest decision means that the development will now go ahead.
This key infrastructure project is significant to a number of development proposals in Aberdeen and Aberdeenshire and aimed at improving travel in and around the City by helping to improve road safety and accessibility, reduce congestion and more significantly grow the local economy.
Local business groups and politicians alike have welcomed the decision and it is hoped by then that the minority of objectors will accept the decision and bring an end to the protracted legal battle over the project to allow construction to commence in the near future.
The project, which is being promoted by Transport Scotland alongside Aberdeen City and Shire Councils, will be procured using the NPD model.
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