Walton v Scottish Ministers [2012] UKSC 44

Key point

  • In the area of environmental law, a single individual can have sufficient interest to apply for judicial review without proving that his private interests are affected by government action
  • This does not mean that a busybody can apply, the individual must be legitimately concerned about environmental protection to be deemed to have sufficient interest

Facts

  • Walton commenced proceedings to challenge schemes and orders made by Scottish Ministers under the Roads (Scotland) Act 1984 for the construction of a new road network near Aberdeen (the Aberdeen Western Peripheral Route)
  • It was contended that EU law had been breached as no public consultation was carried out as required by the Strategic Environmental Assessment Directive
  • The Scottish Ministers argued that Walton did not have sufficient interest to bring the claim as he cannot show that his own interests would be substantially prejudiced
  • Here we are only concerned with the issue of standing

Issue (Supreme Court)

  • Did Walton have sufficient interest to bring the claim?

Held (Supreme Court)

  • Yes, Walton did have sufficient interest

Lord Reed

  • In AXA General Insurance the court put an end to the unduly restrictive approach which “presupposed that the only function of the court’s supervisory jurisdiction was to redress individual grievances, and ignored its constitutional function of maintaining the rule of law”: [90]
  • A distinction must be drawn between a mere busybody and the person affected by or has reasonable concern in the matter to which the application relates: [92]
  • “In many contexts it will be necessary for a person to demonstrate some particular interest in order to demonstrate that he is not a mere busybody. Not every member of the public can complain of every potential breach of duty by a public body. But there may also be cases in which any individual, simply as a citizen, will have sufficient interest to bring a public authority’s violation of the law to the attention of the court, without having to demonstrate any greater impact upon himself than upon other members of the public.”: [94]
  • “The rule of law would not be maintained if, because everyone was equally affected by an unlawful act, no one was able to bring proceedings to challenge it”
  • “At the same time, the interest of the particular applicant is not merely a threshold issue, which ceases to be material once the requirement of standing has been satisfied: it may also bear upon the court’s exercise of its discretion as to the remedy, if any, which it should grant in the event that the challenge is well founded”: [95]

Lord Carnwath

  • ‘The courts may properly accept as “aggrieved”, or as having a “sufficient interest” those who, though not themselves directly affected, are legitimately concerned about damage to wider public interests, such as the protection of the environment. However, if it does so, it is important that those interests should be seen not in isolation, but rather in the context of the many other interests, public and private, which are in play in relation to a major scheme such as the AWPR.’: [103]

Lord Hope

  • Environmental law “proceeds on the basis that the quality of the natural environment is of legitimate concern to everyone”: [152]
  • “The osprey has no means of taking that step on its own behalf, any more than any other wild creature. If its interests are to be protected someone has to be allowed to speak up on its behalf.”: [152]
  • This does not mean that a mere “busybody” can apply, an applicant must have “genuine interest in the aspects of the environment that they seek to protect, and that they have sufficient knowledge of the subject to qualify them to act in the public interest in what is, in essence, a representative capacity”: [153]
  • Environmental groups such as the Scottish Wildlife Trust and Scottish Natural Heritage challenge every development with adverse effects on the environment “[so] there has to be some room for individuals who are sufficiently concerned, and sufficiently well informed, to do this too”: [153]

Commentary

  • In earlier cases World Development Movement, Child Poverty Action Group and Greenpeace, the applicants were a sophisticated lobbying group or civil society groups and the judges in those cases cited the resources, expertise and reputation of those applicants as reasons for granting them standing
  • In contrast, standing was grant to a lay individual here merely on account of his legitimate concern for the environment, thus widening the rules of standing in public law and the meaning of sufficient interest even further
  • While widening the rules of standing will ensure greater rule of law through more judicial review of governmental acts and decisions, it can also impede the progress of vital projects and saddle the government with too much financial costs from litigation