McGinty v The Scottish Ministers

Factual and Procedural Background

The petitioner resides in a town near a coastal site presently occupied by industrial facilities, including a bulk handling terminal and marine construction yard ("the site"). The petitioner, an avid birdwatcher and member of a bird protection society, frequents the nearby mudflats which form part of a designated site of special scientific interest and wishes to preserve the habitat. He also expresses concerns about carbon dioxide emissions associated with industrial processes and questions the need for a further thermal power station in the region.

The respondents are the Scottish Ministers, responsible under the Town and Country Planning (Scotland) Act 1997 for preparing and publishing a spatial plan known as the National Planning Framework (NPF). The NPF sets out broad strategies and priorities for Scotland’s spatial development and may designate certain developments as "national developments" with accompanying statements of need.

The second iteration of the Framework ("NPF2") was published in June 2009, designating a project at the site ("the project") involving a clean coal-fired power station and other industrial developments as a national development.

Consultation on NPF2 included a discussion draft in January 2008 without the project designated, followed by a Supplementary Assessment published in September 2008 which introduced the project as a candidate national development. The Supplementary Assessment was subject to a six-week consultation period advertised primarily via the Edinburgh Gazette and an e-newsletter.

The petitioner brought a judicial review petition challenging the lawfulness of the designation of the project as a national development, primarily on the basis that the statutory requirements for public consultation under the Environmental Assessment (Scotland) Act 2005 (transposing the SEA Directive) were not complied with, focusing on the consultation process following publication of the Supplementary Assessment.

Procedurally, the petition was heard by the Outer House, where the Lord Ordinary dismissed the petition on preliminary pleas of no title and estoppel, and on the merits found no breach of consultation requirements. The petitioner now reclaims those interlocutors and challenges the cap on his liability for expenses.

Legal Issues Presented

1. Whether the petitioner has sufficient title and interest (standing) to bring the petition for judicial review.
2. Whether the consultation process conducted by the respondents, particularly the publication and consultation on the Supplementary Assessment, complied with the requirements of the Environmental Assessment (Scotland) Act 2005 and the SEA Directive.
3. Whether the publication of notices in the Edinburgh Gazette satisfies the statutory requirement to ensure that the consultation notice is likely to come to the attention of the relevant public.
4. Whether the six-week consultation period for the Supplementary Assessment was adequate.
5. Whether the consultation documents, including the Supplementary Assessment, adequately evaluated reasonable alternatives and provided necessary information as required by the SEA Directive and domestic law.
6. Whether the protective expenses order limiting the petitioner's liability for respondents' expenses to £30,000 should be reviewed and reduced.

Arguments of the Parties

Petitioner’s Arguments

• The petitioner contends he has standing as a resident near the site who uses the area for birdwatching and has a reasonable concern in the matter, representing a disenfranchised section of the public deprived of proper consultation opportunities.
• The designation of the project as a national development is material to planning decisions and requires proper public consultation under the SEA Directive and the 2005 Act.
• The Supplementary Assessment introduced the project late in the consultation process and the consultation was inadequate: only six weeks were allowed and publicity was limited to the Edinburgh Gazette and an e-newsletter, with no local newspaper notice, resulting in the local community, including the petitioner, being unaware of the consultation.
• The Supplementary Assessment failed to properly evaluate reasonable alternatives, lacked a statement of need specific to the project, and did not provide a non-technical summary, thereby undermining the ability to make informed representations.
• The protective expenses order capping liability at £30,000 is unreasonably high given the petitioner’s modest means and pro bono legal assistance; a lower cap of £5,000 is appropriate.

Respondents’ Arguments

• The petitioner lacks sufficient interest to sue as his connection to the site is remote and his use intermittent; he is not a representative of any group with title or interest.
• The consultation complied with statutory requirements; publication in the Edinburgh Gazette, supplemented by website publication and other publicity, sufficed to bring the consultation to the public’s attention.
• The six-week consultation period was reasonable and consistent with precedent; the petitioner’s lack of awareness cannot invalidate the process.
• The Supplementary Assessment and related documents complied with the SEA Directive requirements, especially given the high-level, strategic nature of the Framework and the subsequent opportunity for detailed environmental impact assessment at the project stage.
• The petitioner retains the opportunity to make representations in any future consent application under the Electricity Act 1989, where all relevant issues, including need and environmental concerns, will be fully considered.
• The protective expenses order was properly exercised in the circumstances, and the petitioner has not been precluded from pursuing his challenge.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the petitioner’s standing in light of recent Supreme Court authority, concluding that while the petitioner’s connection to the site was not immediate or private in nature, his status as a resident with a specific interest in the environment and as a member of a conservation society afforded him sufficient interest to bring the challenge. The court emphasized the public interest in ensuring compliance with statutory consultation obligations and the preservation of environmental protections.

On the consultation process, the court found that the statutory requirement for publication of notice by means likely to bring it to the attention of the relevant public was satisfied by publication in the Edinburgh Gazette, a national newspaper of record, combined with website publication and other publicity measures. The court rejected the argument that the Edinburgh Gazette was not a newspaper circulating in the relevant area.

The court considered the six-week consultation period to be reasonable and consistent with precedent, noting that the consultation was followed by a parliamentary consideration period which provided additional opportunities for public input.

Regarding the adequacy of the consultation documents, including evaluation of alternatives, the court accepted that while some technical deficiencies might exist, the high-level nature of the Framework and the subsequent requirement for detailed environmental impact assessments at the project stage mitigated the need for exhaustive detail at this stage. The court viewed any shortcomings as technical rather than materially prejudicial.

The court gave significant weight to the respondents’ undertaking that all relevant issues, including need and environmental concerns, would be fully open to consideration in any future application for consent under the Electricity Act 1989, ensuring that the petitioner’s interests would not be foreclosed.

On the issue of protective expenses orders, the court recognized the wide discretion exercised by the Lord Ordinary in setting the cap at £30,000. Given the petitioner’s continued participation and ability to fund the proceedings, the court saw no reason to interfere with that exercise of discretion.

Overall, the court found no material failure in the statutory consultation process that would warrant reduction of the Framework or other remedies.

Holding and Implications

The court REFUSED the reclaiming motion, thereby upholding the dismissal of the petition for judicial review and maintaining the protective expenses order as originally set.

The direct effect of this decision is that the designation of the project as a national development within the National Planning Framework remains valid and enforceable. The petitioner retains the opportunity to participate fully in any future consent process under the Electricity Act 1989, where his environmental concerns may be addressed in detail.

No new precedent was established by this decision; it confirms the applicability of existing principles regarding standing, consultation requirements under the SEA Directive and domestic legislation, and the exercise of discretion in protective expenses orders.