Scottish Court of Session Decisions

At advising, on 15 August 2003 -

LADY PATON -

[1] The petitioners own property situated near the United Kingdom Atomic Energy Authority (UKAEA) power station at Dounreay in the north of Scotland. The first petitioners are a limited company, owned by the Minter family. The company owns Sandside Estate, including Sandside Beach lying adjacent to the power station, together with fishing rights extending 22.2 kilometres out to sea. The second and third petitioners are a married couple, Geoffrey and Michelle Minter. They own and occupy Sandside House, situated near the beach. The fourth petitioner is the mother of the second petitioner. She owns and occupies Fresgoe House, situated at one end of the beach.

[2] In this petition for judicial review, the petitioners aver that particles of nuclear matter have been found on Sandside beach, the source of the particles being the atomic energy power station at Dounreay. The particles are thought to come from a sea-based cache, with the result that they are moved and deposited by wind and tide.

[3] The petitioners complain that their land has been materially damaged by the deposit of the particles. In para 16 of the petition they aver that (p 39C-E):

'The heritable property of the first petitioners has been materially damaged by the deposit of the particles thereon … The [second, third and fourth] petitioners' respective properties have been damaged by the release of radioactive particles from the site, and their deposit on parts of Sandside estate. The sand on the beach and on other parts of Sandside estate has become intermingled and admixed with radioactive particles from the site. The contamination of the petitioners' land by the said radioactive substances has rendered their property less useful and less valuable. The [Food Protection (Emergency Prohibitions) (Dounreay Nuclear Establishment) Order 1997 (SI 1997/2622)] has reduced the commercial return on the estate.'

[4] The second, third, and fourth petitioners further complain that they have suffered injury. In para 16 of the petition, they aver (p 39D-E):

'The second, third and fourth petitioners have suffered stress and anxiety caused by the deposit of the particles on Sandside estate, by the continuing uncertainty surrounding the origin, nature and extent of nuclear contamination on Sandside estate, and by the lack of information about the contamination and risks posed thereby.'

In para 17 of the petition, they aver:

'(d) The respondents' failures have caused the petitioners to suffer anxiety and stress. The presence of nuclear matter on the beach, and the likelihood of similar nuclear matter being present on other parts of Sandside estate, has caused the petitioners to alter their pattern of land use, and to avoid parts of the estate which they previously used to enjoy. For example, the petitioners no longer walk on the beach with their dogs, as they used to do.'

[5] As a result of the damage and injury complained of, the petitioners seek, inter alia, a declarator that the UKAEA are in breach of sec 7 of the Nuclear Installations Act 1965, in terms of which the UKAEA have a duty to secure that no occurrence involving nuclear matter causes injury to any person or damage to any property arising out of the radioactive properties of that nuclear matter.

[6] The petitioners also criticise the current monitoring and particle-removal programme conducted by contractors employed by the UKAEA acting in compliance with conditions imposed by the Scottish Environment Protection Agency (SEPA). The petitioners contend that the programme is inadequate, and that it detects fewer than one per cent of radioactive particles deposited on the beach. The petitioners criticise the frequency of monitoring, the areas monitored, the depths investigated, the level of radioactivity specified for detection purposes, and the equipment used. The petitioners seek to have the UKAEA ordained to implement an alternative monitoring and particle-removal programme specified in sched A to the petition. The substituted programme would, according to the petitioners, change a mere sampling or reassurance exercise to a proper and effective attempt to restore the beach to a clean, pristine condition.

[7] The petition was intimated to SEPA, as an interested party. SEPA entered appearance and lodged answers. They were represented at the first hearing.

[8] At the first hearing, on 11-14 and 18-19 February 2003, counsel for the petitioners accepted that certain matters required further adjustment and specification. They also accepted that some disputed matters of fact might require evidence. Nevertheless counsel submitted that, on the basis of the facts averred and admitted in the pleadings, and the productions referred to, the following orders should be granted:

1. (a) Declarator that the UKAEA have failed, and are continuing to fail, to perform their statutory duty under sec 7 of the Nuclear Installations Act 1965 (para 6(iii) of the petition).

2. (b) An interim order ordaining the UKAEA to implement the monitoring and clean-up programme specified in Schedule A to the petition, or the current monitoring regime for Sandside Bay at more frequent intervals, or any other programme ordered by the court (para 6(ii) of the petition as amended during the first hearing).

[9] Paragraph 6(iv) of the petition seeks declarator that the UKAEA have, since at least 2October 2000, failed to act in compliance with art 8 of the European Convention on Human Rights, and with art 1 of the First Protocol of the convention. Ultimately senior counsel for the petitioners advised that no order founded upon human rights was sought meantime.

[10] The petitioners reserve their right to seek other remedies in future, for example declarator or implement based upon human rights legislation; damages from the licensee; or compensation from the government. The petitioners requested that, following any decision by the court, the case be put out at a continued first hearing, to discuss further procedure.

[11] Counsel for the petitioners explained that, as an order for specific performance of a statutory duty was sought, the petitioners had proceeded by way of judicial review in terms of sec 45(b) of the Court of Session Act 1988 and r 58.3 of the Rules of the Court of Session.

[12] Section 45(b) provides: 'The court may, on application by summary petition … (b) order the specific performance of any statutory duty, under such conditions and penalties (including fine and imprisonment, where consistent with the enactment concerned) in the event of the order not being implemented, as to the court seem proper.'

[13] Rule 58.3 provides:

1. '(1) Subject to paragraph (2), an application to the supervisory jurisdiction of the court, including an application under section 45(b) of the Act of 1988 (specific performance of a statutory duty), shall be made by petition for judicial review.

1. (2) An application may not be made under paragraph (1) if that application is made, or could be made, by appeal or review under or by virtue of any enactment.'

[14] In 1954, the Atomic Energy Authority Act 1954 brought the UKAEA into existence.

[15] In 1955, the UKAEA opened a nuclear energy research facility at Dounreay. The facility comprised a power plant with three nuclear reactors and three fuel reprocessing plants. The reprocessing of fuel irradiated in the reactors commenced in 1958 and ceased in the 1990s. Accordingly the nuclear reactors and reprocessing plants are no longer in operation.

[16] In the 1960s and 1970s, underwater milling and cropping processes took place at the power station site. On occasions the milling head cut into the uranium-aluminium fuel element, producing radioactive swarf. The UKAEA deposited the swarf in a 65-metre-deep shaft within the site.

[17] In 1983, the UKAEA used high pressure water to clear a build-up of sand from the old diffuser situated at the discharge end of the offshore pipeline for the discharge of liquid radioactive waste. During that year and subsequent years, radioactive particles were found on the foreshore at Dounreay, a foreshore which was not open to the public.

[18] In 1984, a radioactive particle was found on Sandside Beach - a beach open to the public. The UKAEA began some monitoring of the beach and other nearby beaches. Thirteen years later, in 1997, two further radioactive particles were found on Sandside Beach. As a result, the UKAEA began monitoring the beach every month. In 1999, five particles were found on the beach; in 2000, six particles; in 2001, three particles; and in 2002, five particles.

[19] As at the date of the first hearing in February 2003, a total of twenty-two particles had been found on Sandside beach. It was not disputed that the particles were 'nuclear matter' within the Nuclear Installations Act 1965, or that they had emanated from the power station site. The 65-metre shaft and the old diffuser were thought to be possible sources, but the precise source(s) and route(s) of the particles were unknown. Whatever the original source or route, it was considered most likely that a sea-based cache had been established, resulting in the sporadic deposit of particles by wind and tide.

[20] Although the petitioners aver that sand from Sandside beach had been used elsewhere on Sandside estate for land management purposes (p 29E-F), no radioactive particles were found on any other part of Sandside estate.

[21] The particles found on Sandside beach were smaller and less radioactive than those found on the Dounreay foreshore. Counsel for the UKAEA relied upon that fact when submitting that the health implications arising from any particles found on Sandside beach were materially different from the health implications arising from any particles found on the Dounreay foreshore.

[22] In 1995, the Scottish Environment Protection Agency (SEPA) came into existence in terms of sec 20 of the Environment Act 1995. SEPA acquired, inter alia, the functions of waste regulation authorities in terms of the Control of Pollution (Amendment) Act 1989 and Part II of the Environmental Protection Act 1990; the functions of disposal authorities in terms of the Control of Pollution Act 1974; and the functions of the chief inspector for Scotland appointed under sec 4(2)(b) of the Radioactive Substances Act 1993. In terms of sec 33 of the Environment Act 1995, SEPA's pollution control powers were to be exercisable 'for the purpose of preventing or minimising, or remedying or mitigating, the effects of pollution of the environment'. SEPA were given certain powers of enforcement, in terms, for example, of sec 108 of and sched 18 to the 1995 Act.

[23] By the mid-1990s, the UKAEA had ceased using the nuclear reactors and processing plants at Dounreay, and a decommissioning process had begun.

[24] In 1997, the government issued the Food Protection (Emergency Prohibitions) (Dounreay Nuclear Establishment) Order 1997 (SI 1997 No 2622). The order came into force on 30 October 1997. It imposed a ban on fishing within a 2-kilometre radius measured from the outlet pipe at the Dounreay atomic energy power station. Paragraph 2 of the order noted that fish and shellfish within the area 'may be affected by fragments of irradiated nuclear fuel and if consumed are likely to create a hazard to human health'. During the debate in the House of Lords on 24 November 1997 (no 6/11 of process, cols 817-818), Baroness Farrington of Ribbleton advised:

'[O]n the current information available, … the risk to public health is likely to be very low, although there does remain the possibility that fragments of the irradiated nuclear fuel could be taken up by seafood species and subsequently enter the human food chain. If a fragment of this irradiated nuclear fuel was to be ingested, it could result in severe acute radiation effects and significant long term health effects …'.

It was emphasised however that no fragments of irradiated nuclear fuel had as yet been found in any fish or shellfish during aquatic monitoring carried out by SEPA.

[25] As a result of the Food Protection Order, the first petitioners had to terminate certain fishing licences, and had to remove fixed nets from the foreshore of Sandside estate.

[26] In December 1998, SEPA produced a report entitled 'Fragments of Irradiated Nuclear Fuel in the Dounreay Local Environment' (no 10/2 of process). That report, particularly pp 5, 13, and 17, mentioned the relatively low level of radioactivity (measured in becquerels) of any particle found on Sandside beach, and also the statistical improbability of any member of the public coming into contact with a radioactive particle. The most active particle ever found on Sandside beach had a radioactivity level of 300,000 becquerels. As the report noted, a level of 400,000 becquerels had 'no directly observable effects' on human health. Furthermore, the most frequent users of the beach (bait-diggers) were estimated to have a probability of about one in 200,000 of coming into contact with a fuel fragment. For other beach-users, the probability of any contact was more remote.

[27] In March 1999, the Department of the Environment published a booklet compiled by the Radioactive Waste Management Advisory Committee (RWMAC), entitled 'Review of Radioactive Particles at UKAEA Dounreay' (no 10/3 of process). Paragraph 11.18 outlined the main objective of the UKAEA's particle programme as being: '… to minimise the chances of a member of the public encountering a particle and ensuring that any exposure, or potential exposure, is ALARP [as low as reasonably practicable - a radiological protection principle which requires measures to be taken to reduce risk until or unless the cost of those measures, whether in money, time or trouble, is disproportionate to the reduction in risk]'.

[28] Paragraph 11.20 referred to SEPA's report 'Fragments of Irradiated Nuclear Fuel in the Dounreay Local Environment' and noted:

'The report concludes that the probability of a member of the public coming into contact with an active particle would, correspondingly, be very small. Even for bait-diggers at Sandside Bay, the probability of encountering a particle is estimated at about one in 200,000. Further, the probability of ingesting a particle from the beach, which would be the most dangerous form of exposure, is far less still than that of an encounter. Consequently, it might be concluded, on current evidence, that the risks to the public of encountering a particle at Sandside beach, and other publicly accessible beaches, are sufficiently low and insignificant that no action other than continued monitoring for reassurance is presently warranted …'.

[29] Counsel for the UKAEA acknowledged that, at the time of publication of the booklet in March 1999, only three radioactive particles had been found on Sandside beach (para 11.19), whereas by the date of the first hearing, a total of 22 radioactive particles had been found on the beach.

[30] In 1999, in pursuance of their powers under sec 16(8) of the Radioactive Substances Act 1993, SEPA imposed a mandatory monitoring of Sandside beach upon the UKAEA. SEPA achieved this by incorporating the programme, detailed in a Technical Implementation Document (TID), as an annex to a Certificate of Authorisation for the Disposal of Radioactive Waste (no 6/2 of process), granted by SEPA to the UKAEA in respect of radioactive waste quite unconnected with the particles. The first version of the TID was dated August 1999. The version applicable as at the first hearing was dated September and November 2001.

[31] In compliance with the TID, the UKAEA employed contractors to carry out the designated monitoring. The contractors did not wear protective clothing. Each process of monitoring the beach took 12 days. A specially-equipped detector lorry (depicted in production nos 6/4 and 6/5 of process, the latter being the earlier version of the lorry) drove slowly over the sand. Less accessible places were reached on foot using hand-held detectors. Any radioactive particle identified was subsequently removed by UKAEA personnel wearing protective clothing (overalls and gloves) and carrying a Geiger counter and a lead-lined container. Not only the particle itself, but a cone of sand surrounding the particle, was removed. Notices were placed along the beach, warning the public about the particles, and discouraging public use of the beach. All of these measures arose out of the radioactive properties of the particles: cf sec 7(1) of the Nuclear Installations Act 1965.

[32] In May 2000, SEPA set up a group called the Dounreay Particles Advisory Group (DPAG). Its members were drawn from universities, the National Radiological Protection Board (NRPB), health boards, and fisheries science. DPAG's function was to address certain recommendations and concerns about the particles, held by both SEPA and the Scottish Executive.

[33] In August 2000, SEPA issued a report entitled 'Review of UKAEA monitoring of public beaches for fragments of irradiated nuclear fuel in the locality of the Dounreay nuclear establishment', (no 10/1 of process). Page 5 contained a table listing, inter alia,the number of fragments found on Sandside beach, together with their radioactivity level.

[34] In March 2001, an interim report by DPAG (no 6/5 of process) recorded SEPA's recommendations, including the following:

'1. The primary aim should be to restore the area affected by the fishing restrictions and any other affected areas to a clean, pristine condition …

1. 4. The ultimate aim should be to remove the [fishing] restrictions as soon as possible and to that end, greater and speedier effort should be made by the UKAEA to find and quantify the extent of contamination in the local marine environment, using the best available methodology and technology …'.

[35] The Secretary of State for Scotland was noted as requesting that: 'SEPA ensures that there is sufficient monitoring in place to ensure that any particles finding their way to the beach at Sandside Bay are promptly detected and removed.'

[36] DPAG's interim report further indicated that no particle had been found on Sandside beach with a level of radioactivity giving rise to significant public health implications (p 11).

[37] In October 2001, the Committee on Medical Aspects of Radiation in the Environment (COMARE) recommended that improvements be made in the frequency, coverage, and detection limits of the monitoring regime.

[38] In May 2002, in a report headed 'Further recommendations on the work to identify the source and possible health effects of radioactive particles found in the environment around the UKAEA site at Dounreay' (no 10/4 of process), COMARE reiterated the recommendations for regular and comprehensive monitoring, and continued:

'[F]urther improvements could be made to the current monitoring strategy and equipment to ensure that the majority of the relevant particles are being found. Consideration should also be given by the UKAEA to the statement by Scottish Ministers that "SEPA ensures that there is sufficient monitoring in place to ensure that particles finding their way to the beach at Sandside Bay are promptly detected and removed." However it is COMARE's view that the removal of particles could be limited to those that might affect the health of individuals that come into contact with them. COMARE is also aware that the probability of an individual coming into contact with a particle is very small.'

[39] In November 2002, DPAG issued a note (no 6/8 of process), recording the outcome of a workshop. DPAG noted: 'A larger number of particles of irradiated fuel than previously thought appeared to have been released to the environment over an extended period, ending possibly in the last few years. Most of these particles appear to have been released during the 1970s.'

[40] On 13 December 2002, SEPA sent a final warning to the UKAEA (no14/1 of process), in respect of their alleged failure to monitor the whole area at Sandside beach during certain months. By letter dated 23 December 2002 (no 14/2 of process), the UKAEA replied that in their view, they had fulfilled the specified monitoring requirements.

[41] In January 2003, the UKAEA published a Public Participation Newsletter (no 6/4 of process). Referring to the 2-kilometre ban on fishing in the fifth paragraph of a section headed 'Are they damaging to health', the newsletter noted that: 'Sampling of fish and shellfish removed from this area for checking has found no further evidence of particle contamination.' In the sixth paragraph of that section, the newsletter explained that: 'SEPA has asked the NRPB (National Radiological Protection Board) to carry out a further assessment of the risk to health posed by the particles to take account of information obtained since 1998.'

[42] Parties were agreed that account should be taken of all productions referred to in the course of argument.

[43] For reasons which will become apparent (see paras 161- 165below), the submissions presented by counsel for the petitioners and by counsel for the UKAEA are noted below, but not, at this stage, the submissions presented by counsel for SEPA, nor the response thereto by senior counsel for the petitioners.

[44] The submissions are noted in broad outline, and not necessarily in the precise order in which they were made.

[45] The UKAEA accepted that they were licensees of the Dounreay atomic energy power station; that the radioactive particles came from the Dounreay site; that the particles were nuclear matter; and that the particles were radioactive waste. Nevertheless the UKAEA contended that the petition was incompetent and irrelevant, and should be dismissed.

[46] Counsel for the UKAEA submitted that judicial review procedure was inappropriate in the present case. Judicial review was restricted to applications to the supervisory jurisdiction raising issues relating to the exercise of administrative decision-making powers where the manner of exercise of the power (and not the merits of the decision) was challenged: cf West v Secretary of State for Scotland (pp 399, 400 and 412, 413); Blair v Lochaber District Council; Haydon v Kent County Council; Hardie v City of Edinburgh Council;Professor Walker, Civil Remedies (p 273); Davidson v Scottish Ministers(p 209F).

[47] Only those applications for specific performance of a statutory duty under sec 45(b) containing the core features set out in West could be made by way of judicial review. The present case did not have those core features. There was no administrative decision-making power. Section 7 of the Nuclear Installations Act 1965 imposed strict civil liability for breach of a specified duty, and was akin to health and safety legislation. The Human Rights Act 1998 did not delegate any administrative decision-making power.

[48] Moreover, the supervisory jurisdiction concerned complaints about the manner in which a power had been exercised: cf Clyde and Edwards, Judicial Review (paras 1.02 and 1.04). A court would not undertake the task of making the correct decision on the merits. The recognised challenges in judicial review procedure included Wednesbury unreasonableness, ultra vires,breach of natural justice, legitimate expectation, and other well-recognised grounds. None of these grounds was relied upon in the present petition.

[49] If, contrary to the UKAEA's submissions, the petitioners were correct in their construction of r 58.3, the consequences would be that a mere rule of court had (a) introduced into the supervisory jurisdiction a type of case which contained none of the core features outlined in West; and (b) restricted the scope of sec45(b), as judicial review was not available where another remedy existed: see para 58.3.4 of the Commentary on the Rules of the Court of Session by Sheriff N M P Morrison QC. Neither of these consequences could be correct.

[50] The proper approach was that an application under sec 45(b) of the Court of Session Act 1988 might, or might not, raise issues of control of administrative action. If the application did raise such issues, it was appropriate for judicial review. If it did not, judicial review was inappropriate, and a summary petition should be used: cf Davidson v Scottish Ministers. The footnotes in Clyde and Edwards (p 353, n 36, and p 614, n 6) were wrong, and should not be followed. The two authorities relied upon by the petitioners, Lafarge Redland Aggregates v Scottish Ministers and Walker v Strathclyde Regional Council, concerned classic judicial review issues, namely legitimate expectation and Wednesbury unreasonableness. These authorities did not assist the petitioners.

[51] Accordingly the petition should not have been brought under judicial review procedure. The petition was incompetent. The UKAEA's plea to the competency should be sustained, and the petition dismissed.

[52] Counsel for the UKAEA also argued that the petition was irrelevant.

[53] Counsel submitted that, on a proper construction of sec 7 of the Nuclear Installations Act 1965, the UKAEA had no duty to monitor or clean up. The Act conferred no powers upon the UKAEA relating to monitoring or entering possibly contaminated premises. By contrast, extensive powers, including powers of entry, were conferred upon SEPA in terms of, for example, sec 30 of the Radioactive Substances Act 1993 and sec 108 of the Environment Act 1995. It would be wholly inconsistent with the existence of an alleged statutory duty incumbent upon the UKAEA to do something on the petitioners' land that the UKAEA were given no powers to enter property, or to remove material.

[54] Another difficulty arising from the petitioners' construction of sec 7 was the scope of any continuing alleged duty. The duty would not be restricted to land where particles had been found. It would therefore be impossible to place clear limits in area or time on the site operator's duty to monitor.

[55] Yet a landowner was not left without remedies. He could seek judicial review of SEPA's actions relating to the current monitoring and removal programme, on recognised grounds such as Wednesbury unreasonableness. If judicial review of SEPA's actions proved unsuccessful, a landowner could then decide whether or not to employ his own contractors to clean up the land, and whether or not to seek compensation in terms of secs 12 to 16 of the 1965 Act.

[56] No injury: Counsel for the UKAEA submitted that there were no averments of actual injury having occurred. Stress and anxiety did not qualify as 'injury': Rorrison v West Lothian Council;Hansard, col 668 (11 February 1965); Merlin v British Nuclear Fuels plc (pp 570, 571). The case of Black v Braer Corp was distinguishable, as it concerned a different statute and a different statutory definition.

[57] Counsel accepted that if a radioactive particle found on Sandside beach were to remain lodged under a fingernail for several hours, it could cause minor blistering. However the statistics contained in the productions demonstrated that the possibility of such an occurrence was remote. For example, according to SEPA, there was a one in seven million chance of getting a blister. Also, as Gatehouse J pointed out in Merlin, the 1965 Act compensated for proved personal injury, not for the risk of future injury. A risk of injury did not constitute a breach of sec 7.

[58] No damage to property: It was the UKAEA's position that there were no relevant averments of any damage to property. The arrival of a small number of tiny radioactive particles did not bring about a physical change to the petitioners' property. Reference was made to the Public Participation Newsletter (no 6/4 of process), p 4. It was submitted that there was only one particle per 90,000 tonnes of sand. Any effect on the beach was de minimis, in contrast with what had occurred in Blue Circle Industries plc v Ministry of Defence,where a flood contaminated a marshland, and the whole marshland had be to taken away.

[59] Any lorry track marks on the beach were transient and de minimis. The lorry and the warning signs might constitute loss of amenity, but that was not damage to property. Loss of value did not constitute damage for the purposes of the 1965 Act: cf Merlin v British Nuclear Fuels plc. The Food Protection Order was irrelevant. The Order did not constitute property damage: it was concerned with an entirely different source of injury (the ingestion of fish). Also the Order did not apply to the area for which the petitioners sought increased monitoring.

[60] Hunter v Canary Wharf Ltd supported Merlin, and ruled that the mere presence of removable dust did not amount to damage. In the present case, the mere presence of a few removable particles did not amount to the physical change necessary to constitute damage under the Nuclear Installations Act 1965.

[61] Accordingly no relevant case of damage to property had been made out, even after recourse to the documents. There had been no breach of statutory duty. The petition was irrelevant and should be dismissed.

[62] No breach of human rights: Art 8 of the European Convention on Human Rights: Counsel submitted that art 8 applied only to the second, third and fourth petitioners, who were natural persons. The averments did not measure up to what was required by case law to constitute a breach of art 8. There were no averments of actual injury, nor any sufficiently specific averments about risk of future injury. Reference was made to Lopez Ostra v Spain; Guerra v Italy; Hatton v United Kingdom. The averments revealed a very low level of risk, which did not begin to approach the sort of certainty or strong likelihood of injury illustrated in those cases.

[63] Article 1 of the First Protocol: Counsel submitted that art 1 of the First Protocol could apply only to the first petitioners. There had to be ownership, or some sort of right or interest in the property allegedly affected. On the basis of the averments and the productions, particles had been found only on the first petitioners' property, not on any property belonging to the second, third or fourth petitioners. The second to fourth petitioners could not therefore rely upon art 1.

[64] So far as the first petitioners were concerned, there were no relevant averments of a breach of art 1. There were no relevant averments of damage to property. That left only economic loss. S v France suggested that some economic loss could be sufficiently severe as to amount to a partial expropriation. Such a degree of economic loss was not averred in the present case.

[65] Accordingly there was no case made out entitling any of the petitioners to an order on the basis that their human rights had been breached.

[66] Counsel submitted that any statutory duty sought to be enforced in terms of sec 45(b) had to be clear and precise, or clear and definite: Carlton Hotel Co v Lord Advocate (per Lord Dundas at pp 246, 248); Annan v Leith Licensing Authority;Davidson v Scottish Ministers (p 210); Marcic v Thames Water Utilities Ltd. The court would not make an order specifying how a duty should be performed.

[67] If sec 45(b) gave the court the breadth of power which the petitioners contended, a member of the public could petition the court to demand increased numbers of safety staff at Torness; or to insist that emissions be controlled in a particular way. But such matters were for the regulatory bodies, not the courts. Section 45(b) was a summary procedure, to be used only where there was a clear and precise statutory obligation. The petitioners' proposed scheme contained many matters of specialist judgment about which expert opinion might differ. Many elements in the schedule were neither clear and precise, nor clear and definite.

[68] In the present case, the court was being asked to interpret and specify the scope of a statutory duty which was not clear or precise, and to decide how an authority ought to implement that duty. That was contrary to authority. In Walker v Strathclyde Regional Council, the court held that the petitioners were not bound to tell the education authority how to fulfil their duty: but counsel for the UKAEA argued that not only were the petitioners not bound to, they were not entitled to.

[69] Moreover, by adopting the petitioners' approach, the court would have to continue to review the monitoring programme. The court would become a regulator and auditor for as long as particles were found. Such a result had never been envisaged by sec 45(b) and its predecessor, sec 91 of the Court of Session Act 1868.

[70] Thus, even if (contrary to the UKAEA's submission) the petitioners were correct in their contention that it was appropriate to make the present application by way of judicial review, the petitioners were confronted by a body of case law including Carlton Hotel Co, T Docherty Ltd, and the other cases cited above, and were not entitled to an order for specific performance.

[71] That might leave the possibility of the court's granting a bare declarator in terms of para 6(iii) of the petition. But such a declarator would have no practical consequences: cf the circumstances in Stannifer Developments Ltd v Clydeport. It might be different if the petitioners were seeking damages, but they were not. Monckton v Lord Advocate was not a decision approving of the granting of a bare declarator. In any event, Monckton was a decision concerning the Crown, and different considerations applied.

[72] On any view, the court should not grant a declarator that a breach of duty was 'continuing'. Such a declarator would involve taking the view, as a matter of fact, that particles would definitely continue to arrive at the beach. At best for the petitioners, the court might grant declarator in respect of past breach of duty. That would have no practical consequences for the petitioners.

[73] Counsel for the UKAEA offered two reasons why the court, when exercising its discretion under sec 45(b), should in any event refuse to grant an order for specific performance.

[74] First, the UKAEA would become subject to two competing monitoring regimes. That would be unreasonable. Counsel drew attention to the following facts: (i) The SEPA scheme was under continual review. It was likely to change from year to year. (ii) Parties could not agree about the type of detector to be used. SEPA did not accept that the germanium detectors (specified in the petitioners' schedule) were reliable in the context of Sandside beach. (iii) The UKAEA's current monitoring scheme was not being challenged as ultra vires. Such a challenge would be difficult, standing the wide powers granted to SEPA by the Radioactive Substances Act 1993 and the Environment Act 1995. (iv) The current monitoring scheme was not a matter arranged to suit the convenience of the UKAEA. It had been imposed upon the UKAEA, and was enforceable against them.

[75] Secondly, counsel submitted that the order for specific performance sought would not achieve the petitioners' stated aim. On the petitioners' own averments, radioactive particles might continue to arrive. A 'blitz' of the beach would not resolve the problem. Only the prevention of the arrival of further particles would resolve the problem. To impose a more rigorous monitoring regime would not therefore achieve the petitioners' aim. All that would happen would be that a radioactive particle might be found a few days earlier.

[76] Counsel invited the court not to grant the orders sought.

[77] Counsel for the UKAEA submitted that where both the UKAEA and SEPA advised the court that the interim order sought was impracticable in the short term, the court should refuse to grant such an order. Counsel reminded the court of the following matters: (a) Weekly monitoring of the beach was not currently possible. Monitoring of the beach took twelve days, and only one specially adapted monitoring vehicle was available. (b) Detection of particles of the particular level of radioactivity specified by the petitioners, and investigation to the particular depth specified, was not practicable with the technology currently available. (c) It would be impossible to determine the percentage of particles recovered, as required by the petitioners' schedule. (d) It would be impossible to guarantee a minimum amount of monitoring, because of weather conditions. For these practical reasons alone, the court was invited not to grant the interim order.

[78] Counsel added that the monitoring was contracted out. The contractors were not a subsidiary of the UKAEA. The contractors were in no better position than the UKAEA so far as the practicability of compliance was concerned. Accordingly the court should refuse to grant any interim order, even if the court were to decide against the UKAEA on other issues.

[79] In conclusion, counsel for the UKAEA invited the court to sustain the UKAEA's first and second pleas-in-law, and to dismiss the petition.

[80] Counsel confined his submissions to the implications which orders for specific performance might have for SEPA: he had no interest in the declarator sought.

[81] Counsel outlined SEPA's statutory duties and enforcement powers, and opposed the imposition of a judicial monitoring scheme. For reasons which will become apparent, I do not find it necessary to rehearse these submissions in any detail at this stage.

[82] Counsel's concluding motion was that the petition should be dismissed in so far as it sought the positive orders set out in para 6(i) and (ii), but in any event that the court should refuse to grant the interim order in terms of para 6(ii), even if, as a matter of law, the court were satisfied that what was sought was relevant.

[83] The petitioners sought performance of statutory duties in terms of sec 7 of the Nuclear Installations Act 1965, and possibly, at some later date, in terms of the Human Rights Act 1998. The petitioners wished to recover the beneficial enjoyment of their property. They were not content to wait and seek damages in due course. They wanted their property restored to them. The property had been affected by the arrival at Sandside beach of radioactive particles produced by the UKAEA. As a matter of principle, the petitioners were entitled to vindicate their private property rights. Their rights could be interfered with only within the operation of the law. Counsel submitted that there ought to be some way in which innocent private individuals such as the petitioners could vindicate their rights against two public authorities.

[84] Bearing in mind the procedural history of the case, and the terms of r 58.9.1, the court should not dismiss the petition on grounds of relevance. At worst for the petitioners, the court should order further specification in terms of r 58.9(2)(b)(v). At the very least, a declarator was justified. The case should be put out at a continued first hearing.

[85] Counsel submitted that reliance upon the general supervisory jurisdiction of the court (which was often the basis of an application for judicial review) was quite separate from reliance upon sec 45(b) of the Court of Session Act 1988. Each was effected by way of a judicial review application, but each was a separate remedy. Applications for the performance of a statutory duty were formerly made by petition in terms of sec 91 of the Court of Session Act 1868 (the precursor of sec 45). If a statutory body failed to perform its statutory duty, that was nothing to do with discretion, or with decision-making. Section 45(a) concerned the vindication of a private right. Section 45(b) concerned the specific performance of a statutory duty under such conditions and penalties as might be defined by the court. Section 45 began with the words 'on application by summary petition'. Junior counsel for the UKAEA had stated that there would have been no challenge to the competency of the present action had the petitioners proceeded by way of a summons: but as sec 45 referred specifically to an application by summary petition,junior counsel's position on that point was untenable.

[86] Counsel referred to Ch 14 of the Rules of the Court of Session (petitions), and to the commentary by Sheriff N M P Morrison, QC (para 14.2.7). Counsel then referred to Ch 58 of the Rules, in particular to rr 58.1, 58.2, and 58.3. Rule 58.3 implied that an application to the supervisory jurisdiction of the court was, for the purposes of the rules, to be taken as including any application under sec 45(b). If, contrary to that submission, only cases satisfying the prerequisites laid down in West were to proceed by way of judicial review, the words 'including an application under sec 45(b) of the Act of 1988 (specific performance of a statutory duty)' became superfluous and unnecessary. The application for specific performance of a statutory duty was a separate remedy, which, for administrative reasons, had been incorporated into judicial review procedure. Counsel sought support in paras 58.3.1 and 58.3.4 of Sheriff Morrison's commentary, where the commentator clearly considered that all applications in terms of sec 45(b) had to proceed by way of judicial review.

[87] Counsel further argued that in 1868, when the Court of Session Act was enacted, West was still far in the future. Yet the Court of Session Act 1868 had identified a specific right to enforce performance of a statutory duty. The only issue in those days was whether or not the duty had been performed. There were no refinements relating to decision-making powers, or Wednesbury unreasonableness. Counsel referred to the observations of the Dunpark Working Party set up by Lord President Emslie (in Davidson v Scottish Ministers at p 210A-B). Those observations indicated that what had been done reflected administrative convenience. In other words, judicial review had seemed to the working party to be the correct procedure for applications for specific performance of a statutory duty.

[88] The case of West did not deal with sec 45(b). It dealt with what was now a traditional judicial review type of challenge to the making of a decision. Blair v Lochaber District Council was a case concerning an attempt to review a contractual entitlement, not a case concerning the performance of a statutory duty. In T Docherty Ltd v Monifieth Town Council (a summary petition) the court was able to decide where the obligation to create sewers lay, without any reference to the sort of criteria set out in West. In Walker v Strathclyde Regional Council enforcement of a statutory duty was sought in terms of sec 91 of the Court of Session Act 1868. The application was made by way of petition for judicial review. No plea to the competency was taken by the respondents. Counsel submitted that Walker supported the proposition that a petition for judicial review was competent in the present case.

[89] One recent example of a petition for judicial review relating to the performance of a statutory duty was Lafarge Redland Aggregates Ltd v Scottish Ministers. No point of competency was taken by the Scottish Ministers. No arguments were presented about the need for Wednesbury unreasonableness or similar factors.

[90] Clyde and Edwards, Judicial Review, dealt with the implications of r 58.3 (para 8.48, n 36, and p 614, n 6). There was no reason why other statutes, such as health and safety legislation, should be treated differently.

[91] Counsel submitted that a competent order could be pronounced in terms of sec 45(b) in the present case. It was not for the court to specify in any detail how the duty should be performed. But questions concerning what detail might be included should not prevent a petitioner who had established a past breach of statutory duty (and a likely future breach), from obtaining orders in terms of sec 45(b).

[92] Two distinct issues arose: (i) the existence of an obligation to perform a duty; and (ii) what ought to be done. In Walker v Strathclyde Regional Council the court was prepared to contemplate ordaining a local authority to provide education, but not necessarily specifying how that should be done. In the present case, it was for the petitioners to establish an apparent failure in duty. Thereafter it was for the UKAEA either to satisfy the court that they had complied with their obligations, or to address the court on circumstances relevant to their non-performance. The court would then consider the nature of any order for specific performance which might be pronounced. In the present case therefore it was competent for the court to consider first, whether to grant an order for the performance of the statutory duty, and then, after hearing submissions, what ought to be done. Any doubt about the precise content of the order for specific performance did not remove the petitioners' entitlement to such an order.

[93] There was no reason why an order should not be pronounced in the present case, provided it was sufficiently clear (cf Highland and Universal Properties Ltd v Safeway Properties Ltd). Walker, Civil Remedies (p 273) was quite consistent with the court's fundamental entitlement to grant an order for the performance of a statutory duty. In Annan v Leith Licensing Authority the petitioner sought a complicated series of procedures, based on hypothetical situations, with alternatives offered depending upon whom the duty was said to lie. The court had not been satisfied that 'a clear, definite duty [was] laid by statute (whether expressly or by necessary implication) upon some definite body or individual upon whom the court can lay its hand'. By contrast, the court could be satisfied in the present case. As for Carlton Hotel Co v Lord Advocate,the petitioners in that case had simply failed to state the nature and extent of the statutory duty.

[94] In all the circumstances, counsel for the petitioners submitted that a competent order in terms of sec 45(b) could be made in the present case.

[95] Section 7 of the 1965 Act imposed a statutory duty to secure that no occurrence involving nuclear matter caused injury to any person or damage to any property, being injury or damage arising out of or resulting from the radioactive properties of that nuclear matter.

[96] There was no dispute that such a duty lay upon the UKAEA. Also it was a matter of admission that, whatever the 'occurrence', it involved nuclear matter. If any injury to any person or damage to property had occurred, that injury or damage had arisen out of, or resulted from, the radioactive properties of the nuclear matter.

[97] The duty was to secure that no occurrence caused injury or damage, not to secure that there was no occurrence. Thus supposing that the only occurrence had been some past event which released radioactive particles into the sea at Dounreay, there could still be a current ongoing breach of duty if that occurrence was causing injury or damage.

[98] The relevant type of occurrence was set out in sec 7(2)(c). Every time a particle landed on the beach and caused damage to property or injury to a person, that was an 'occurrence'. It was also possible that there was an occurrence in terms of sec 7(2)(a): for example, the flushing out of the diffuser in 1983 would be an occurrence in itself. Given the extreme hazard of nuclear matter, parliament intended a sensible but broad approach to be adopted when applying the legislation, so that the scope of the statutory duty would not be artificially restricted.

[99] The statutory definition of 'occurrence' in sec 26 of the 1965 Act had not been made applicable to sec 7. Nevertheless, the definition was of interest. If one were to apply that definition to the circumstances in the present case, it would be possible to say not only that there had been a 'happening' (resulting in the release of particles into the sea), but also that every time a particle landed on the beach, one had a succession of occurrences, which should be treated collectively with the originating occurrence, and would continue until the last particle disappeared and could therefore no longer land on the beach. Thus an occurrence, at least in terms of sec 26, could be looked at as an individual happening or event, or as a series of events, or as a single continuing event. The particles arriving at the beach could therefore be seen as individual occurrences, or as a continuing occurrence.

[100] It was a matter of fact, or reasonable inference from the information before the court, that radioactive particles would continue to arrive on the beach. The court was entitled to conclude at the first hearing that nuclear matter would continue to be deposited at Sandside beach.

[101] If that conclusion were reached, the only issue remaining was whether the deposit of such particles was capable of causing, or had caused, injury to any person, or damage to property. Counsel submitted that only one or other of injury to a person or damage to property was required in order that the statutory duty imposed by sec7 was breached.

[102] Damage to property: Counsel for the petitioners submitted that, on the undisputed information before the court, the court could find that there had been damage to the petitioners' property - particularly to the first petitioners' property. The damage was sufficient to constitute a breach of duty, and to justify declarator that there had been a breach.

[103] Counsel for the UKAEA had taken a very precise approach, pointing out that only the first petitioners' land had been affected, and thus that only the crave for declarator at the instance of the first petitioners should be granted. Technically, that might be correct: but it was not necessary to take such a precise approach. As the petitioners' averments in para 2 of the petition demonstrated, Sandside House and Fresgoe House lay within Sandside estate. For the purposes of enjoyment of the estate, the petitioners ought to be treated altogether. There were, in addition, the fishing rights, which extended 22.2 kilometres out to sea.

[104] Section 7 referred to injury or damage 'arising out of or resulting from the radioactive properties' of nuclear matter. The definition was deliberately broad. One had to look to see whether or not there was a relationship between what had occurred, and the radioactive properties of the nuclear matter.

[105] Certain facts were not in dispute. The petitioners averred in para 16 of the petition that (p 39E) 'the sand on the beach and on other parts of Sandside estate has become intermingled and admixed with radioactive particles from the site. The contamination of the petitioners' land by the said radioactive substances has rendered their property less useful and less valuable.' The response on behalf of the UKAEA was a denial. SEPA, for their part, admitted the admixing of sand and radioactive particles, but averred that basic safety standards had not been breached. Counsel relied upon SEPA's admission. When a radioactive particle was located, personnel wearing protective clothing (overalls and gloves) and carrying a Geiger counter and a lead-lined container came to remove a cone of sand, centred on the particle. It was not therefore a question of simply picking up the particle. A body of sand was removed with the particle. The operation was performed because of the radioactive properties of the particle. If the particle did not have those properties, it would just be another grain on the beach. Thus all the activity on the beach, the monitoring vehicle, the removal exercise, the access required to the heritable property, the notices along the beach warning the public about the particles and discouraging public use of the beach, arose out of the nuclear properties of the particles.

[106] The map (no 10/7 of process) showed the exclusion zone designated by the Food Protection Order 1997. Sandside bay was just to the left of the exclusion zone. As the first petitioners owned fishing rights, based on a barony title, to a distance of 22.2 kilometres out to sea, the exclusion zone impinged on the fishing rights. As a result of the Food Protection Order, licences to fish had been terminated. Certain fixed nets along the foreshore had been removed, or taken out of operation. Accordingly, no matter where the boundary of the exclusion zone lay, the estate had been forced to reduce its fishings.

[107] Counsel for the petitioners invited the court to follow the approach adopted by the Court of Appeal in Blue Circle Industries plc v Ministry of Defence. That was the most recent and the most authoritative statement of the English courts' approach to sec 7. Aldous LJ (p 299B-C) noted that there was no risk to human health in the circumstances of that case. In relation to the concept of 'alteration in the physical characteristics of the property', the elements in Blue Circle had equivalents in the present case. For example, in Blue Circle, decontamination required a major engineering operation; in the present case, there was a long-term physical monitoring and particle-removal regime. In Blue Circle, the removal of large quantities of earth was required, as it was impossible to separate the plutonium from the soil by any practical process; in the present case, repeated removal of quantities of sand was necessary, as the radioactive particles could not simply be picked up, but cones of sand had to be removed. Whether the removal was one large operation, or a series of smaller operations, did not matter when assessing whether there had been some 'alteration in the physical characteristics of the property'. In Blue Circle,the contamination made the property less valuable; the same applied in the present case. In Blue Circle, the contamination of the marshland resulted in less frequent use by the owners; that was also the situation in the present case. In short, everything noted at p 300 of Blue Circle was equally applicable in the present case.

[108] The case of Hunter v Canary Wharf Ltd had been decided by the Court of Appeal after Merlin, but before Blue Circle. Blue Circle, supported by Hunter, suggested that Gatehouse J may have taken too restrictive an approach in Merlin. But in any event, the Court of Session was not bound by either Merlin or Blue Circle.

[109] Counsel invited the court to find that, from both a legal and a practical point of view, there was no real distinction between the circumstances prevailing in the present case, and those prevailing in Blue Circle. Merlin, a decision at first instance, should be distinguished. In Merlin, the dust did not involve any change in the physical characteristics of the property. For example, the Ministry of Defence did not have to call on the householder and remove bricks from the walls of the house. By contrast, in the present case, there had been a change in the physical characteristics of the property.

[110] Also there was a reasonable inference in the present case that particles would continue to arrive at Sandside beach in the future. For example, in ans 9 for SEPA (p 18E), it was admitted that 'a reservoir of an unknown number of radioactive particles, including MTR particles, remains in the offshore marine environment …'. Similar information could be found in the Public Participation Newsletter issued by the UKAEA in January 2003 (no 6/4 of process, p 4).

[111] Counsel submitted that if the court drew the inference that the particles would continue to arrive at Sandside beach, there would continue to be damage to the petitioners' property in the sense used in Blue Circle. Accordingly there had been, and would continue to be, a breach of statutory duty to secure that no occurrence involving nuclear matter caused damage to any property.

[112] Injury: If the court took the view that there was damage to property, then the question of injury to any person was academic at this stage. Nevertheless it was the petitioners' position that there was injury. In ans 10 (p 23A-B), SEPA admitted that the ingestion of a particle, or contact with skin, would cause injury. That was different from Merlin and Blue Circle. In those cases there had been no actual risk of physical injury. Accordingly any anxiety or mental condition arising in the present case was rational to the extent that if the second, third, or fourth petitioners were to come into physical contact with a particle, they would be injured.

[113] Counsel for the UKAEA had referred to Rorrison v West Lothian Council, and in particular to the dicta of Lord Reed (p 250). But the petitioners were not presenting a case at common law. They were presenting a case based upon a statutory regime. Black v Braer Corp demonstrated the correct approach in the context of a statutory regime at the stage of relevancy. It was not appropriate at a first hearing to dismiss the case so far as relating to injury. There was enough for enquiry: (cf dicta in Black v Braer Corp at p 1404D-F).

[114] Human rights: Counsel confirmed that meantime no order was sought in terms of human rights legislation. However the petitioners might in future seek such orders.

[115] Counsel for the UKAEA had sought dismissal of the petitioners' human rights case. But they had produced little by way of response to the cases cited by the petitioners, in particular Lopez Ostra v Spain; Guerra v Italy; S v France; Hatton v United Kingdom; and Marcic v Thames Water Utilities Ltd. Lopez Ostra v Spain concerned waste treatment works, where the public interest had to be balanced against the individual's suffering fumes and smells. The European Court's approach envisaged that there could be a material effect upon family and private life without any serious danger to health. Any arguments relating to sec 45(b) of the Court of Session Act 1988 - involving references to Carlton Hotel Co v Lord Advocate, Annan v Leith Licensing Authority; and T Docherty Ltd v Monifieth Town Council - were not relevant to any positive order based upon secs 6 and 8 of the Human Rights Act 1998. Section 8 of the 1998 Act specifically conferred additional powers upon the court. If, therefore, the court were to find that the UKAEA were in breach of the convention in terms of sec 6 of the Act, the court could grant a declarator or an order to comply with the convention. In terms of sec 8, it would be open to the court to make any order within its power which it considered appropriate. It was possible therefore that such an order could go beyond what was competent in terms of either sec 7 of the Nuclear Installations Act 1965 or sec 45(b) of the Court of Session Act 1988.

[116] Meantime counsel invited the court to repel the pleas to competency and relevancy, and if necessary to order further specification under r 58.9(2)(b)(v).

[117] At the request of the petitioners, the case was put out By Order on 9 May 2003. At that By Order, counsel for the petitioners produced and referred to a report by Dr Day entitled 'Sandside Beach Monitoring and Particle Finds, updated to 7 May 2003' (no 6/13 of process). Counsel also advised that more frequent monitoring of Sandside beach had taken place after the first hearing, during an eight-week period from 24 February 2003 to 17 April 2003. During that period, a further 16 particles were found, bringing the total number of particles found on Sandside beach as at 7 May 2003 to 38.

[118] The petitioners seek specific performance of a statutory duty imposed upon the UKAEA by sec 7 of the Nuclear Installations Act 1965. They may, at some future date, seek specific performance of statutory duties imposed upon the UKAEA by human rights legislation.

[119] In compliance with what the petitioners understand to be the proper construction of r 58.3, they presented a petition for judicial review.

[120] I am satisfied that the procedure which the petitioners have adopted is competent. In my view, that is the plain meaning of the words in r 58.3. The rule directs practitioners to make an application for specific performance of a statutory duty under sec 45(b) of the Court of Session Act 1988 by way of petition for judicial review. I agree with counsel for the petitioners that an application for specific performance of a statutory duty is a long-established remedy, quite separate from an application to the general supervisory jurisdiction of the court. I also agree that this separate remedy has been incorporated within the judicial review procedure for administrative reasons.

[121] The Dunpark Working Party on Procedure for Judicial Review of Administrative Action, in their report dated June 1984, included in their proposed rule of court (which ultimately became r 260B, the new judicial review procedure) the following provision: 'This procedure may also be used by an applicant seeking an order for specific performance of any statutory duty in lieu of a petition under section 91 of the Court of Session Act 1868'. In their commentary, the working party explained:

'We had to use the permissive "may" in relation to applications for an order for specific performance of a statutory duty, because an Act of Sederunt cannot exclude the section 91 petition expressly provided by statute. However we hope that our streamlined procedure will always be used in preference to a section 91 procedure.'(emphasis added)

Accordingly the working party hoped that, in practice, the new judicial review procedure would be used for all applications for specific performance of a statutory duty.

[122] The rule of court which ultimately introduced the new judicial review procedure (r 260B) fulfilled the working party's hope, in that it provided as follows:

'(1) An application to the supervisory jurisdiction of the court which immediately before the coming into operation of this rule would have been made by way of summons or petition, shall be made by way of an application for judicial review in accordance with the provisions of this rule.

1. (2) In paragraph (1), "petition" includes a summary petition under section 91 of the Court of Session Act 1868 (order for restoration of property or specific performance).' (emphasis added)

[123] Rule 260B may have gone further than was expected, in that the mandatory 'shall' replaced the working party's permissive 'may': for, as the working party pointed out, 'an Act of Sederunt cannot exclude the section 91 petition [or its successor, the section 45 petition] expressly provided by statute'. It may be, therefore, that a summary petition in terms of sec 45(b) seeking specific performance of a statutory duty would still be deemed competent, despite the apparently mandatory terms of r 260B and its successor, r 58.3. But it does not follow that an application for specific performance of a statutory duty made by way of petition for judicial review (in compliance with the rule of court) is incompetent. On the contrary, as indicated above, it is my view that r 58.3 expressly directs practitioners to adopt such a procedural route, as the petitioners have done in this case.

[124] There is considerable support for the petitioners' approach. In Clyde and Edwards, Judicial Review, the authors note (para 8.48, n 36):

'[R]ule 58.3(1) expressly includes within the cases which are to be subject to the special procedure applications under section 45(b) of the Court of Session Act 1988. Thus, procedurally, such statutory applications are to be regarded as applications for judicial review, although they are founded on statutory provision and are not an aspect of the common law supervisory jurisdiction.'

Also, the authors observe (para 23.03 and n 6):

'Rule 58.3(1), which requires that applications to the supervisory jurisdiction shall be made by petition for judicial review … expressly "includes" within the supervisory jurisdiction applications for the specific performance of a statutory duty under section 45(b) of the Court of Session Act 1988. That section empowers the court to order the specific performance of any statutory duty and thus creates a statutory jurisdiction in the court to do so. Such an order is thus not an exercise of the common law supervisory jurisdiction but for convenience is brought within the procedural provisions of Chapter 58 of the Rules by including it within that jurisdiction. … [n6] The consequence presumably is that matters which may not be within what is usually regarded as matters of administrative law, such as the enforcement of heath and safety legislation, will require to proceed by way of "judicial review"'.

[125] Further support for the petitioners' approach can be found in the commentary on the Rules of the Court of Session by Sheriff N M P Morrison QC (paras 14.2.7 and 58.3.4).

[126] I accept that judicial review procedure may confer certain benefits upon litigants, including flexibility and advantageous time-tabling, all as observed in Davidson v Scottish Ministers (p 209A). However such benefits might be thought appropriate in a procedure intended to be summary in terms of sec45(b) of the 1988 Act, and its predecessor, sec 91 of the 1868 Act: cf the observations of the Dunpark Working Party.

[127] Counsel for the UKAEA pointed out that one odd result of the petitioners' approach would be that a rule of court would have the effect of restricting the scope of a statutory provision, namely the scope of sec 45(b), as judicial review could not be resorted to until all other remedies had been exhausted. I accept that r 58.3 appears to have this effect: cf Sheriff Morrison's commentary (para 58.3.4). It may be that current practice considers it appropriate that all other available remedies should be exhausted before taking the fairly major step of seeking specific performance of a statutory duty by way of petition to the Court of Session - a remedy described as 'peculiar and drastic' by Lord Dundas in Carlton Hotel Co v Lord Advocate (p 246). Thus views such as those expressed in TDocherty Ltd v Monifieth Town Council (p 205) may to some extent have been superseded by the introduction of the new judicial review procedure expressly extended to applications for specific performance of statutory duties.

[128] Counsel for the UKAEA also drew attention to Davidson v Scottish Ministers (p 208H), where it was noted that one consequence of adopting the petitioners' construction of r 58.3 would be that: 'any alleged breach of the [European Convention on Human Rights] would ipso facto be susceptible to proceedings by way of judicial review'. That would indeed appear to be the case if the remedy selected were an application for specific performance of a statutory duty in terms of sec 45(b) of the 1988 Act.

[129] It was further observed in Davidson (p 210C-H):

'[T]he statutory duty … sought to be enforced [might be] the very general statutory duty to give effect to convention rights contained in section 57(2) of the Scotland Act 1998 and/or section 6 of the Human Rights Act 1998. Neither … is in any way representative of the sort of precise statutory duty in respect of which application by "summary petition" is envisaged by section 45 of the 1998 Act. … As was pointed out by the working party referred to above [the Dunpark Working Party], rules of court cannot alter the substantive law and what was said by Lord Dundas [in Carlton Hotel Co v Lord Advocate (p 246)] about an application under section 91 of the 1868 Act is accordingly just as true of an application under section 45(b) of the 1988 Act, whether or not that application purports to be brought under rule of court58.3.'

[130] I respectfully agree. What was said by Lord Dundas in Carlton Hotel Co v Lord Advocate (p 246) about an application under sec 91 of the 1868 Act is just as true of an application under sec 45(b) of the 1988 Act, whether or not the application is made by summary petition, or by petition for judicial review under r 58.3. However in my view it does not follow that a petition for judicial review is the wrong procedural vehicle for the attempted application. On the contrary, as stated above, I consider that r 58.3 expressly directs practitioners to adopt that procedural vehicle. But if the application thus made is based upon a statutory provision which lacks the degree of clarity and precision desiderated in authorities such as Carlton Hotel Co v Lord Advocate and Annan v Leith Licensing Authority, then the application may simply fail (as happened, for example, in Annan). The fact that an application may fail because the statutory duty sought to be enforced is not sufficiently clear and precise does not in my view mean that the attempted application should not have been made by way of judicial review. Such an application would in my view be competently made by way of petition for judicial review, as a result of the express terms of r 58.3, even although the application might not succeed on its merits.

[131] I accordingly repel the UKAEA's first plea-in-law to the competency of the petition.

[132] The petitioners do not at present seek any order founded upon human rights. Counsel for the petitioners accepted that there might be questions of fair balance between the community and the individual, and a margin of appreciation. Furthermore, in the context of positive orders for specific performance of a statutory duty, there might be arguments about lack of clarity and precision of certain provisions in the human rights legislation. Accordingly further adjustment of the pleadings, and further submissions, might be required.

[133] The UKAEA for their part contended that the petitioners' case, so far as based upon the European Convention on Human Rights, was irrelevant.

[134] On the basis of the petitioners' averments, the admissions by the UKAEA and SEPA, the contents of the productions to which I was referred, the wide terms of sec 8(1) of the Human Rights Act 1988, and the authorities cited (eg Lopez Ostra v Spain; Guerra v Italy; S v France; Hatton v United Kingdom; and Marcic v Thames Water Utilities Ltd) I am unable, at this stage, to exclude the possibility that there may be a case to answer in respect of a breach or breaches of the petitioners' human rights.

[135] I shall therefore allow the parties an opportunity to adjust their pleadings and to put before the court any further productions and submissions which they may have relating to the human rights aspect of the case.

[136] The reprocessing of nuclear fuel at Dounreay has ceased. All identified routes whereby radioactive particles might reach the environment surrounding the site are thought to have been closed off. Nevertheless it is not disputed that radioactive particles, originating from the Dounreay site, have been deposited on Sandside beach. The UKAEA accept (by admission at the bar during the first hearing) that the particles are 'nuclear matter' and (by admission in the pleadings at p 20E of the Record) that the particles are 'radioactive waste'. The date or dates on which the particles escaped from the site, and the route or routes whereby they did so, are not known. Investigations have revealed several possible operations and routes which might have caused the escape of the particles. Whatever the source or route, the most favoured theory is that there now exists an off-shore cache of particles, subject to the vagaries of wind and tide. The first particle found on Sandside beach was detected in 1984. Thirteen years later, in 1997, two particles were found; in 1999, five particles; in 2000, six particles; in 2001, three particles; and in 2002, five particles. As at the date of the first hearing, 22 radioactive particles had been found on Sandside beach. Between the first hearing and the by order on 9 May 2003, a further 16 radioactive particles were found. As at that by order hearing, a total of 38 radioactive particles had therefore been found on Sandside beach.

[137] Section 26 of the Nuclear Installations Act 1965 gives a definition of 'occurrence', but only in the context of secs 16(1) and (1A), 17(3) and 18 of the Act, not sec 7.

[138] The Oxford English Dictionary gives several definitions of 'occurrence', including the following: 'Something that occurs, happens, or takes place; an event, incident.'

[139] In my view, the word 'occurrence' in sec 7 is broad enough to cover at least two situations in the present case.

[140] I consider that the arrival of a radioactive particle at Sandside beach can be regarded as an 'occurrence' within sec 7(2)(c), being an 'occurrence elsewhere than on the licensed site involving nuclear matter which is not excepted matter and which … having been on the licensed site at any time during the period of the licensee's responsibility … has not subsequently been on any relevant site …'. As the particles in question were accepted by all parties to be 'nuclear matter', it is my view that every time a particle arrives at Sandside beach, there is an 'occurrence involving nuclear matter as is mentioned in subsection (2)'.

[141] Further, 'occurrence' can in my view refer not only to a radioactive particle arriving at the beach, but also the fact of its remaining on the beach. Its remaining on the beach is something that 'occurs, happens, or takes place'. Again, as the particles are nuclear matter, it follows that, when one or more particles remain on the beach, there is an 'occurrence involving nuclear matter as is mentioned in subsection (2).'

[142] I agree with counsel for the petitioners that, on a proper construction of sec7 of the Nuclear Installations Act 1965, the petitioners do not require to prove both personal injury and damage to property in order to establish a breach of that section: one or the other will suffice.

[143] Section 26 of the Nuclear Installations Act 1965 defines 'injury' as meaning 'personal injury and includes loss of life'. Any question of injury as so defined is therefore relevant only in the cases of the second, third, and fourth petitioners.

[144] As at the date of the first hearing, the second, third and fourth petitioners had suffered no physical injury as a result of a radioactive particle. However, they aver at p 39C-D of the Record that they '… have suffered stress and anxiety caused by the deposit of the particles on Sandside estate, by continuing uncertainty surrounding the origin, nature and extent of nuclear contamination on Sandside estate, and by the lack of information about the contamination and the risks posed thereby.'

[145] Furthermore, counsel for the petitioners submitted that there were risks to health. They drew attention to the following matters: (a) Averments on record, and documentary productions, describing the deleterious consequences of contact with, or ingestion of, a radioactive particle. (b) The fact that the current monitoring and particle-removal scheme was, according to the petitioners, detecting fewer than one per cent of the radioactive particles deposited on Sandside beach. (c) The Food Protection Order 1977, which prohibited the taking of fish and other marine life from an area of sea at Dounreay beach for fear that such fish and other marine life might have ingested a radioactive particle which might then find its way into the human food chain. (d) The fact that radioactive particles were continuing to appear on Sandside beach. (e) The fact that SEPA had commissioned further research into the risks to health posed by the radioactive particles, as explained in the Public Participation Newsletter issued in January 2003 (no 6/4 of process).

[146] Counsel for the UKAEA, on the other hand, emphasised that the petitioners had failed to distinguish between the particles found on Sandside beach and those found on the Dounreay foreshore. The particles found on Sandside beach were smaller and less radioactive. As at the date of the first hearing, no particle had been found on Sandside beach which exceeded a radioactivity of 300,000 becquerels. Counsel for the UKAEA accepted that prolonged skin contact with the largest Sandside beach particle found to date could cause blistering of the skin. But counsel also pointed out the statistical improbability of such an event. For the class of persons thought to be most at risk (bait-diggers), the likelihood of contact with a radioactive particle was estimated at one in 200,000. Counsel also submitted that the averments of stress and anxiety were irrelevant.

[147] Counsel for SEPA remained neutral on the question whether there had been any occurrence causing injury to any person.

[148] I agree with Gatehouse J in Merlin v British Nuclear Fuels plc when he stated (p 571): 'The Act of 1965 compensates for proved personal injury, not the risk of future personal injury.'

[149] In the present petition, there are no averments of physical injury suffered by anyone. In relation to the petitioners' averments about stress and anxiety, it is a well-established principle in the law of damages for personal injuries that damages are awarded ex delicto only where a pursuer is able to prove that he has, or had, an identifiable psychiatric or possibly psychological illness or condition caused by the wrongful act (cf Lord Bridge of Harwich in McLoughlin v O'Brian (p 431H); Lord Ackner in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 (p 401C); Lord Goff of Chievely in White v Chief Constable of South Yorkshire Police; Lord Reed in Rorrison v West Lothian Council (p 254D-F)). While a pursuer who has suffered physical injury is usually able to recover damages reflecting any related shock, stress, anxiety or upset, a claim in respect of damage to mental health alone, without any physical injury, is governed, inter alia, by the principle set out above. The courts' restriction of a stateable common law claim to one involving an identifiable psychiatric or psychological illness or condition is a reflection of policy considerations. As Lord Wilberforce observed in McLoughlin v O'Brian: '[A]t the margin, the boundaries of a man's responsibility for acts of negligence have to be fixed as a matter of policy . . . there remains, in my opinion, just because "shock" in its nature is capable of affecting so wide a range of people, a real need for the law to place some limitation upon the extent of admissible claims'. Similar observations were made by Lord Ackner and Lord Oliver of Aylmerton in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 (pp 400E et seq and 418C-D); and Lord Steyn and Lord Hoffmann in White v Chief Constable of South Yorkshire Police (pp 494C-G, 497B-C and 511B).

[150] It seems to me that such policy considerations apply afortiori in relation to the 1965 Act. Countless people may suffer stress and anxiety as a consequence of the operation of, or a breach of, the 1965 Act - particularly those living in the vicinity of nuclear installations. To adopt the words of Lord Wilberforce, there is 'a real need for the law to place some limitation upon the extent of admissible claims'. In the present case, the averments relating to stress and anxiety do not satisfy the policy-guided requirements for injury set down by the House of Lords in the field of injury to mental health.

[151] Nor does the decision in Black v Braer Corp assist the second to fourth petitioners, for two reasons. First, Black was concerned with different statutory definitions, namely 'damage' in sec 1 of the Merchant Shipping (Oil Pollution) Act 1971, and 'pollution damage' in sec 1 of the Merchant Shipping Act 1974. Secondly, in Black the pursuer had at some stage suffered some physical injury as a result of the pollution. As noted above, a pursuer who has suffered some physical injury is usually able to recover damages reflecting related stress, anxiety, and depression.

[152] I am not therefore persuaded that there are any relevant averments that a breach of sec 7 of the Nuclear Installations Act 1965 has caused injury to any person.

[153] Nevertheless I shall not exclude from probation the averments relating to stress and anxiety suffered by the second, third, and fourth petitioners. The petitioners' case is founded not only upon the Nuclear Installations Act 1965, but also upon the Human Rights Act 1998 and art 8 of the European Convention on Human Rights. The averments relating to stress and anxiety may be relevant in the context of human rights. For example, the averments may assist in illustrating the extent and effect of any interference with the petitioners' private lives. Meantime therefore I do not exclude any averments relating to stress and anxiety from probation.

[154] The phrase 'damage to any property' is not defined in the Nuclear Installations Act 1965.

[155] I am not convinced that it is necessary to construe 'damage to any property' in sec 7 of the 1965 Act as being restricted to purely physical damage, as Gatehouse J held in Merlin v British Nuclear Fuels plc. It seems to me that in the context of damage to land, questions of amenity, loss of value, and stigma, are very relevant. However in the present case it is not necessary for me to explore that issue further, for in my view, on the basis of the petitioners' averments, the admissions on record, and the content of the productions referred to, Sandside beach has indeed suffered physical damage in the form of a 'physical change' to the area affected, an 'alteration in the physical characteristics of the property', caused by the radioactive properties of the nuclear material (the particles) and rendering the property less useful, less frequently used, and less valuable (cf dicta in Blue Circle Industries plc v Ministry of Defence, and dicta of Pill LJ in the Court of Appeal in Hunter v Canary Wharf Ltd (p 676)). That physical damage has occurred and continues to occur by reason of the sporadic and unpredictable deposit of tiny radioactive particles, which become inmixed with the fine grains of sand on the beach without leaving any visible sign to alert a user of the beach as to which parts of the beach might contain a radioactive particle. Damage in my view occurs as soon as a radioactive particle is deposited on the beach. The endeavours to protect members of the public from the radioactive particles, and to remove the particles, result in my view in further physical damage (directly caused by the deposit of the particles) in the form of warning notices placed along the beach, lorry track-marks on the sand, and the removal of portions of sand. The monitoring and particle-removal regime - including the warning notices, detector lorry sweeping the beach, and removal of portions of sand - is not a temporary measure, but is one which has been in place for some time, and appears likely to remain in place for a considerable time. The cumulative effect of these factors in my opinion constitutes a change in the physical characteristics of the land which is not de minimis, and which arises out of or results from the radioactive properties of the nuclear matter, the particles.

[156] Counsel for the UKAEA submitted, inter alia, that Merlin v British Nuclear Fuels plc was more in point than the case of Blue Circle Industries plc v Ministry of Defence, and that this court should conclude that Sandside beach had suffered no damage. I cannot agree. The Court of Appeal in Blue Circle expressed some doubt about the correctness of the decision in Merlin. But in any event, there are factors in the present case which in my view render it more similar to the circumstances in Blue Circle than the circumstances in Merlin.Standing the petitioners' averments that the most likely immediate source of the radioactive particles is a sea-based cache, such that the deposit of radioactive particles can neither be predicted nor controlled, together with the fact that the UKAEA cannot guarantee either the size or the level of radioactivity of particles deposited, or that every radioactive particle deposited on the beach will be detected and removed, it seems to me that Sandside beach is subject to a peculiarly unpleasant type of physical contamination which cannot easily be cured, and which makes the beach unattractive to any potential user or purchaser. That factor alone makes the circumstances in the present case similar to the circumstances in Blue Circle. Even if one were to assume that a monitoring and particle-removal programme could promptly and successfully remove every radioactive particle within a short time of its landing on the beach, that detection and removal would not in my view detract from the fact that the beach had suffered damage. The monitoring and removal programme would simply seek to reduce or eradicate that damage. Furthermore, I consider that Merlin is distinguishable on its facts from the present case. In Merlin, no special equipment or special cleansing measures were required to enable the owners to continue occupying and using their house. The householder certainly hoovered up dust, and the hoover dust-bags were monitored. But the householder would have had to hoover up dust in any event. By contrast, in the present case, Sandside beach is regularly subjected to measures which are hardly standard or commonplace in land management, namely to a special radioactivity-detecting vehicle crawling over the beach at a pace slower than walking speed, for twelve days each month, leaving lorry track-marks on the beach; to notices along the beach, warning the public about radioactive particles; to the occasional arrival of UKAEA personnel dressed in protective clothing and carrying a Geiger counter; and to portions of sand being removed.

[157] In the whole circumstances, I am satisfied that property belonging to the first petitioners, namely Sandside beach, has suffered damage arising out of or resulting from the radioactive properties of the particles of nuclear matter deposited on the beach.

[158] During the period between the first hearing in February 2003 and the by order in May 2003, a further sixteen particles have been found on Sandside beach. Accordingly during the time the case has been before the court, the beach continues to suffer damage.

[159] In relation to other parts of Sandside estate, there are averments that materials from Sandside beach were used to treat other nearby areas. However there are no averments that any radioactive particles have been found on these other areas. On the basis of the information before me, it is impossible to conclude that any other area of land has been or is being damaged.

[160] It may be unnecessary at this stage to express a view in relation to the first petitioners' fishing rights. Obiter, I am of the view that the Food Protection Order1997 has caused damage to the fishing rights, as licences to fish have had to be terminated, and fixed nets on the foreshores have had to be removed.

[161] Section 7 of the Nuclear Installations Act 1965 does not in my view entitle the petitioners to the order for specific performance which they seek, for the following reason:

[162] Section 7 does not impose any clear statutory duty to monitor, or to attempt to cure or to clean up, any damage to or contamination of property caused by an occurrence involving nuclear matter. It is impossible in my view to 'read in' such a duty, far less to construe the section as imposing the detailed duties set out in sched A to the petition. If the petitioners' approach to sec 7 were to be adopted, one could envisage a multiplicity of acts which members of the public might petition the court to direct the UKAEA to perform, all said to be implied in the general duty set out in sec 7. But authorities such as Carlton Hotel Co v Lord Advocate, Annan v Leith Licensing Authority, T Docherty Ltd v Monifieth Town Council and Davidson v Scottish Ministers, have repeatedly emphasised that it is appropriate for a court to order specific performance of a statutory duty only where a duty is clearly set out in the statute. Even the case of Walker v Strathclyde Regional Council, cited by counsel for the petitioners, does not go so far as the petitioners might wish. In that case, the petitioners sought an order compelling the education authority to comply with their duty under sec 1 of the Education (Scotland) Act 1980 in respect of adequate and efficient provision of school education for the petitioners' children. The court was not asked to grant a detailed order ordaining the authority precisely how to fulfil that duty, and it is far from clear that the Lord Ordinary would have agreed to grant such an order. The court merely repelled the respondents' plea to competency, declined to determine the application, and ordered a second hearing.

[163] I am not therefore persuaded that an order for specific performance in the terms sought by the petitioners should be granted.

[164] It follows that I shall not grant any interim order in terms of para 6(ii) of the petition. In the circumstances, it is unnecessary to address the issue of balance of convenience.

[165] As SEPA's opposition during the first hearing was directed solely against any orders for specific performance, and as no such orders are to be granted, I have not found it necessary in hoc statu to note in detail or to rule upon SEPA's submissions.

[166] I consider that the damage to Sandside beach is sufficient to enable me to pronounce a declarator as sought in terms of para 6(iii) of the petition, restricted to the first petitioners as owners of Sandside beach, and also restricted to damage to property.

[167] The appropriateness or otherwise of granting such a declarator at this stage was a matter of dispute. In particular, counsel for the UKAEA opposed the granting of a bare declarator.

[168] In my view, a declarator in favour of the first petitioners that 'the UKAEA have failed, and are continuing to fail, to perform their statutory duty under section 7 of the Nuclear Installations Act 1965 to secure that no occurrence involving nuclear matter causes damage to any property of any person other than the UKAEA, being damage arising out of or resulting from the radioactive properties of that nuclear matter' is simply an accurate statement of what has happened and what continues to happen. A further sixteen particles have been found following upon the first hearing in February 2003. That satisfies me that the UKAEA are indeed 'continuing' to fail to perform their statutory duty. I see no reason why the first petitioners should be deprived of a formal legal acknowledgement of the situation. The question whether the UKAEA have been or are in breach of their statutory duty in terms of sec 7 of the 1965 Act seems to me to be a live, practical question (cf dicta of Lord Justice-Clerk Thomson in Macnaughton v Macnaughton's Trs (p 392)). The question is not hypothetical, premature or academic. Nothing which was said about the inappropriateness of a bare declarator persuaded me that the first petitioners are not entitled to that formal declaration in relation to a matter which is of considerable importance to them.

[169] I repel the UKAEA's first plea-in-law to the competency of the petition.

[170] I grant the first petitioners declarator that the UKAEA have failed, and are continuing to fail, to perform their statutory duty under sec 7 of the Nuclear Installations Act 1965 to secure that no occurrence involving nuclear matter causes damage to any property of any person other than the UKAEA, being damage arising out of or resulting from the radioactive properties of that nuclear matter. Meantime I grant no declarators to the second, third or fourth petitioners.

[171] I refuse to grant any interim order for specific performance of a statutory duty founded upon sec 7 of the Nuclear Installations Act 1965 relating to either the programme specified in sched A to the petition, or the programme specified in the annex to the Technical Implementation Document (2001), or any other such programme.

[172] I am minded to sustain the UKAEA's plea to the relevancy of the petitioners' case so far as seeking a positive order founded upon sec 7 of the 1965 Act. One way of reflecting such a ruling might be to exclude certain parts of the petition from probation, but I shall allow parties to address me on procedure at a continued first hearing. Quoad ultra, all pleas to the relevancy of the petition should remain standing, as some questions of relevancy have yet to be determined. In particular, the human rights aspect of the case requires adjustment, and further argument. As I am not persuaded at this stage that there is no merit in this branch of the case, I shall not sustain the UKAEA's plea to the relevancy in respect of any aspect of the petitioners' case which is founded upon human rights.

[173] I order a continued first hearing on a date to be fixed. At present, I make no formal order for further specification in terms of r 58.9(2)(b)(v), but parties are now aware of the criticisms which have been made of certain parts of the pleadings, and may wish to take steps to meet such criticisms. Further procedure and questions of expenses may conveniently be discussed at the continued first hearing.