Inner House upholds NPF 2

Scotland
01.10.2013
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The Inner House has dismissed a reclaiming motion in the case of McGinty v. The Scottish Ministers. Mr McGinty had sought to reduce the National Planning Framework 2 (NPF 2) insofar as it designated a proposed new Hunterston coal-fired power station as a National Development.

The Case

Mr McGinty is a resident of Largs and a keen birdwatcher. He objected to the proposed Hunterston coal-fired power station; in particular his objections focused on its potential impact on coastal bird habitat and CO2 emissions. In 2009 Mr McGinty lodged a judicial review of the decision of the Scottish Ministers to designate the power station as a "National Development" in the NPF2.

Mr McGinty claimed that the form of publicity given to the SEA Supplementary Assessment first introducing the power station as a proposed National Development and the length of the consultation period were both inadequate. Mr McGinty also claimed that consideration of the power station, and of alternatives to it, in the Supplementary Assessment was similarly deficient. Mr McGinty sought reduction of the NPF 2 insofar as it designated the power station as a National Development.

In the Outer House, Lord Brailsford dismissed the petition holding that Mr McGinty did not have an interest to sue and was also barred by mora, taciturnity and acquiescence. Essentially, Lord Brailsford considered Mr McGinty's interest as an intermittent user of the designated site for bird-watching as insufficient and that Mr McGinty had waited too long to lodge his legal challenge. Despite dismissing the case on these preliminary pleas, Lord Brailsford also indicated that he would not have upheld the substantive grounds of the challenge.

The Inner House Judgement

The Inner House judgement dismissed Mr McGinty's reclaiming motion. As highlighted in the Scottish Ministers' submissions this case was, at least on one level, of only academic interest. The power station application was withdrawn in June 2012 and Hunterston has not been included in the Main Issues Report (April 2013) for NPF 3 as a candidate National Development. However, the case does highlight several issues of current interest:

Standing: The Court overturned the Lord Ordinary's finding, having reviewed Mr McGinty's standing in light of the Supreme Court judgements in the Axa and Walton cases. These cases replaced the test of title and interest with a test of standing based on "sufficient interest". Despite Mr McGinty's limited and non-essential use of the designated site, the Court found his interest was sufficient to distinguish him from a mere busybody.
Mora, taciturnity and acquiescence: The Court overturned the Lord Ordinary's finding of mora, taciturnity and acquiescence. About 12 weeks had lapsed between publication of the finalised NPF 2 and Mr McGinty's legal challenge – the Court held that this period was insufficient to uphold a plea of mora.
The "need case" for designated National Developments: Designation as a National Development is a mechanism for establishing the national "need" for the designated development. The implications of this have not yet been fully explored; in particular the extent to which objectors may be precluded from attacking the principle of a proposed National Development and confined to objecting to detailed matters such as siting or design. In this case the Court observed that the application was under section 36 of the Electricity Act 1989 and that "need and alternatives" had been one of the topics to be examined at the public inquiry. The Court also noted that the Scottish Ministers had made an undertaking that the need for additional generating capacity would be open for consideration under any future application.
Consultation requirements: The Court held that the advertisement of the Supplementary Assessment in the Edinburgh Gazette complied with legal requirements as did a 6 week consultation period. Their Lordships accepted that there was "some force" in Mr McGinty's submissions on the adequacy of the Supplementary Assessment. However, NPF 2 was a high level programme, with individual National Developments subject to subsequent detailed EIA. In these circumstances the Court was satisfied that the complaint was "at best, technical rather than material.".
Discretionary judicial remedies: Although not required to determine the point the Court also highlighted the discretionary nature of judicial remedies. Mr McGinty had the opportunity to participate in separate EIA and public inquiry processes to examine the proposed power station and this would "severely diminish" the significance of any alleged failure in the SEA consultation process. A failure would not have led to any substantial consequence. It seems likely that the Court would have refused to set aside part of the NPF 2 even if Mr McGinty's substantive grounds had been upheld.
Protective Expenses Orders: The Court refused to reduce the £30,000 cap on liability in Mr McGinty's PEO. Under Rules of Court adopted since the Outer House decision, Mr McGinty's liability for the respondent's expenses would have been capped at a maximum of £5,000. However, the Court noted that the new Rules did not apply at the time of his award and a higher cap was not inherently unreasonable. There was no reason to interfere with the awarding judge's discretion, especially as Mr McGinty had not been prevented from continuing with his legal challenge.

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