Road Sense, an unincorporated association, and William Walton, Chairman of Road Sense, as its representative and as an individual against a decision of the Scottish Ministers [2011] CSOH 10

In this statutory appeal, a pressure group known as Road Sense appealed against a decision of the Scottish Ministers as the trunk and special roads authority in terms of the Roads (Scotland) Act 1984. The appellants sought a Protective Expenses Order in their favour in the present motion. Road Sense were appealing against the Scottish Ministers' proposal for the Aberdeen Western Peripheral Route [AWPR] consisting of a new four lane highway on a designated route that would loop around the west and north of the city of Aberdeen connecting with the existing A90 highway, south of Aberdeen, at Stonehaven, and north of Aberdeen, at Potterton.

The Lord Ordinary noted that the fact that the AWPR had four lanes was legally significant, as 'construction of a new road of four or more lanes' was one of the kinds of project for which environmental impact assessments was mandatory in terms of the EIA Directive 85/337/EEC, as amended, Article 4 and Annex 1, paragraph 7(c), given domestic effect by the Environmental Impact Assessment (Scotland) Regulations 1999 (No 1), regulations 2, 3 and Schedule 1 paragraph 7(3). The Lord Ordinary also noted that the requirement of an environmental impact assessment brought the decision-making process on this development within the public participation and access to justice provisions of the EIA Directive 85/337/EEC, as amended, by virtue of Articles 2, 6 and 10a. The Lord Ordinary observed that Article 10a provides that procedures such as the present appeal should be 'not prohibitively expensive.'

Having heard submissions, the Lord Ordinary agreed to grant the appellants a Protective Expenses Order. Noting that the Scottish courts already had a discretionary power to modify expenses payable by an unsuccessful party to nil in any event, the Lord Ordinary expanded that such after-the-event modification was not Article 10a compliant because it did not have the specificity, precision and clarity required to satisfy the need for legal certainty. This was unsatisfactory because, as the Lord Ordinary observed, a directive intended to confer rights on individuals must be implemented in such a way that the persons concerned are enabled to ascertain the full extent of their rights. The Lord Ordinary noted that such uncertainty in itself could be a powerful disincentive to participation, which would be inconsistent with the purpose of the legislation as a whole. The Lord Ordinary was therefore minded to grant a Protective Expenses Order and considered that a reasonable sum for such an order would be £40,000 maximum.