Challenges and European Law

Lord Tyre issued his judgement in relation to the challenge to the Aberdeen Western Peripheral Route (the AWPR) on 11 August 2011 (2011CSOH131). The decision is a lengthy one and is of interest because of the varying different grounds relied upon, a number of which had not properly been before the Scottish Courts before. It is also the first case of significance in Scotland where one of the parties has proceeded protected by a protective expenses order. In fact in his judgement Lord Tyre did not deal with the issue of costs or expenses but decided to fix a hearing to hear submissions on that topic having regard to the outcome of the case.

The AWPR has long been planned, the process of exploring routes having started back in the 1970's. Over the intervening years various routes were identified with a public consultation in 2002. In 2003 Scottish Ministers confirmed that while the route would be promoted as a trunk road the preferred corridor did not include any link to Stonehaven.

In 2004 the Minister of Transport confirmed that a number of options for the southern leg should be examined to take account of certain sensitivities including the impact upon a special needs community. Accordingly 5 options were considered. As a consequence of this consultation process together with a report from traffic consultants instructed by the Scottish Government, it was announced that in effect a hybrid route was to be the preferred route involving a link from Stonehaven. This approach was controversial.

While a public inquiry was held to consider objections to the relevant scheme and objections to compulsory purchase orders which were required, the scope of the inquiry was constrained by Scottish Ministers on the basis that the principle for the road had been accepted and therefore no consideration was to be given to that principle under reference to economic policy or strategic consideration. The inquiry therefore was limited to looking at technical aspects of the route choice including environmental impact.

Two appeals came forward, one at the instance of a Mr Walton (supported by a pressure group called "Road Sense" – the protective costs order in effect protected Mr Walton and Road Sense) while the other was at the instance of a Mr and Mrs Fraser who owned a property which they contended would be affected to an adverse extent as a result of the construction of the road (albeit the road would not actually be constructed directly on their land). The...